The Canadian Security Intelligence Service, Canada's principal intelligence agency, routinely transmits to U.S. authorities the names and personal details of Canadian citizens who are suspected of, but not charged with, what the agency refers to as "terrorist-related activity."
The criteria used to turn over the names are secret, as is the process itself.
But a new cache of WikiLeaks documents pertaining to Canada lays bare the practice. It contains not only frank assessments by U.S. officials of Canadian co-operation, but the names of 27 Canadian citizens turned over by their own government as possible threats, along with 14 other names of foreign nationals living in Canada.
In at least some cases, the people in the cables appear to have been named as potential terrorists solely based on their associations with other suspects, rather than any actions or hard evidence.
Of the 41 people named, 21 do not appear to have ever been charged, and some had never come to the attention of the Americans before being named by their own government. Most of the remaining 20 names comprise the group known as the Toronto 18. Some of that group were charged and convicted; others had charges against them stayed.
The cables are a snapshot of periods in 2009 and 2010. Over the years, the number of names handed over is certainly much higher.
The first stop for these names is usually the so-called Visa Viper list maintained by the U.S. government. Anyone who makes that list is unlikely to be admitted to the States.
Given Washington's policy of centralizing such information, though, the names also go into the database of the U.S. National Counterterrorism Centre. Inclusion in such databases can have several consequences, such as being barred from aircraft that fly through U.S. airspace.
Or, as Canadian Maher Arar discovered in 2002, the consequences can be much worse — arrest, interrogation, even "rendition" to another country.
Paul Cavalluzzo, who acted as chief counsel for the Canadian commission of inquiry that cleared Arar of any wrongdoing, put it this way after being briefed on the cables: "Once you give the name to the Americans, that's the end of the game."
Interviews with several Canadian security sources confirm that the practice of naming people who are suspected, but not charged, has been going on for many years.
One security official with deep knowledge of the subject said the cables go to "the nub of some of the most sensitive communications between our side and the Americans."
He stressed that any decision to hand over names is the result of a detailed process, in which an individual's threat level is assessed by a committee of Canadian security officials, including a senior executive at CSIS.
Lawyers from the Department of Justice also participate, and often a representative of the RCMP.
As part of the process, someone plays the part of devil's advocate, challenging the information gathered on the individual being considered.
Even then, said the official, the decision to hand over a name to the Americans is subject to written ministerial directives and internal CSIS policies.
Still, as Cavalluzzo points out, the process is secret, with no judicial oversight, and takes place without the knowledge of the individual being "targeted."
"It certainly doesn't meet any criteria of due process in the sense that the individual has no representation whatever. Don't tell me there's a devil's advocate. That and a dollar will get you a cup of coffee."
The consequences of inaction
The Canadian security official said two considerations loom over the CSIS committee's deliberations.
The first is Arar, who was secretly traduced by the RCMP to American authorities and, as a result, was removed from a commercial flight at John F. Kennedy airport in 2002, then forcibly deported to Syria, where he was tortured.
Arar subsequently received an apology and $10.5 million in compensation from Ottawa. Significantly, though, he remains on the U.S. no-fly list. He, too, was named to American authorities based solely on association.
"We don't want another Arar," said the security official. But at the same time, he said, CSIS is acutely aware that if it did not pass on information about someone it suspected, and that person then carried out some sort of spectacular attack in the U.S., the consequences could be cataclysmic for Canada.
U.S. authorities, already suspicious that Canada is "soft on terror," would likely tighten the common border, damaging hundreds of billions of dollars worth of vital commerce.
A former senior official, who also spoke to CBC on the basis of anonymity, put it more bluntly: "The reality is, sorry, there are bad people out there.
"And it's very hard to get some of those people before a court of law with the information you have. And so there has to be some sort of process which allows you to provide some sort of safeguard to society on both sides of the border."
Furthermore, he said, "it's not a fundamental human right to be able to go to the United States."
Both security officials said they are absolutely certain that individuals they've had a hand in naming posed threats to Canada's security.
Cavalluzzo, though, is uncomfortable with the practice. He says the names should be vetted by a judge before being handed to the Americans. He says there should be guarantees that any information turned over is accurate and that any person named could be delisted if it turns out the intelligence was poor. (One Canadian security official said at least two people named over the years have indeed been delisted at Canada’s request, although he acknowledged that once you are in the American system, you are most likely in for life).
Despite Cavalluzzo's discomfort, though, he agrees that, given the current reality, the names of suspects must be shared: "It would seem to me that it's reasonable so long as it is done in a way that provides Canadian citizens with adequate controls, and I don't know if you can ever do that when you're dealing with the Americans."
Toronto lawyer Clayton Ruby, who also has had considerable experience in national security cases, took a different view. The practice, he said, is "abhorrent."
"This is information that is being handed over with the knowledge that it will have adverse consequences on Canadian citizens. And Canadian citizens have a right to be protected by their government."
Ruby described the committee practice as a "bureaucratic process" that falls far short of what a citizen is due. "Due process would involve some standards such as, well, more than 'we suspect he's involved in something nasty.'"
A third source, also highly placed in the Canadian intelligence apparatus, objected to the accusation that the process is hidden from scrutiny. He pointed out that the Security Intelligence Review Committee, created to oversee CSIS, has access to all the names and all the deliberations.
"We [CSIS] are the most reviewed service in the world," he said. He added that he felt sorry for some of those whose names have been released by Julian Assange, founder of WikiLeaks. "They were not charged or convicted."
When it was pointed out that they are nonetheless now in the American databases, courtesy of CSIS, the official replied: "Yes, and so are you, and so am I."
The databases are vast, he said, and the Americans are capable of distinguishing dangerous threats from individuals of concern, or simply of interest.
Reasonable suspicion of a crime
But Ruby said the threshold for naming someone to the Americans should be "reasonable suspicion of a crime."
In other words, that the authorities have reasonable and probable grounds to believe that the individual has planted a bomb, or is planning to plant a bomb.
Canadians have a constitutional right to privacy and to protection from unreasonable search and seizure, said Ruby.
"This is clearly a search. They're searching out information about you. They're invading your privacy. And the question is whether it's reasonable.
"Well, clearly it's reasonable when there's an actual crime being investigated. But short of that, some generalized threat to the state because the state says so? All in secret? I'm not sure it's legal. I think it isn't."
In another of the WikiLeaks cables, though, U.S. Embassy officials in Canada make it clear they think Canada already accords too many rights to suspects.
"Canadian services do not appear to be as proactive as U.S. law enforcement regarding terrorist cell penetration and source development," says the cable, which is classified as both secret and "noforn," meaning not for foreign eyes.
"Both [CSIS and the RCMP] are supportive and co-operative with U.S. law enforcement for the most part, although restricted by the Canadian Charter of Rights, which is the basis for Canada's strict privacy laws."
CSIS declined a request for an on-the-record interview, instead putting out a lengthy written statement that essentially urged Canadians to trust the agency’s secret proceedings. The executive director of the Security Intelligence Review Committee, Susan Pollak, would not discuss the criteria CSIS uses to name people to U.S. authorities, but told CBC she is satisfied that CSIS operates within the law.