News of the appeal surfaced during a Senate committee meeting this week that heard testimony from three of Canada’s top national security executives. Details, including grounds for the appeal, are secret on the direction of Federal Court of Appeal Chief Justice Pierre Blais.
The contentious and classified Nov. 22 Federal Court of Canada decision, a redacted version of which was made public in December, ordered the Canadian Security Intelligence Service (CSIS) to stop using so-called 30-08 warrants to outsource spying on Canadians abroad to allied foreign intelligence services.
In the decision, Justice Richard Mosley, the country’s leading jurist on national security law, slammed CSIS and its lawyers for purposely failing to tell the court about its intent to use the warrants to get foreign spy agencies, such as the U.S. National Security Agency (NSA), to spy on overseas Canadians with suspected terrorist links.
Mosley’s scathing rebuke caused considerable concern within the senior ranks of the national security apparatus and government, Stephen Rigby, national security adviser to the prime minister, told the Senate committee.
“Concern (enough) to gather my colleagues together, talk with our lawyers in the Department of Justice, to look at the circumstances, to look at the rationale for why we proceeded in the way we did and to satisfy myself that there had been reasonable due diligence in the actions that had been pursued and why,” he said.
“Mr. Justice Mosley has rendered a very clear and somewhat candid judgment in this matter. But I am persuaded that the bases for our pursuing this matter further are also valid.”
Michel Coulombe, director of CSIS, told the committee the Mosley decision has led to changes within the organization, “and we’re waiting to see what will happen with the appeal.” He did not elaborate.
Mosley agrees CSIS needs to be able to track Canadian suspects abroad. Still, in originally granting the warrants in 2009 and again last fall in condemning CSIS’s actions, he has made it abundantly clear he believes the court has no jurisdiction to grant warrants authorizing surveillance and intercept activities on foreign soil.
CSIS has long taken the position it is not barred by the CSIS Act from engaging in security intelligence collection activities outside of Canada. Canadians suspected of plotting to harm the country or its interests cannot be allowed to escape detection and investigation by simply leaving the country.
About 130 Canadians are believed to be abroad and engaged in Islamic Jihad terrorist activities, from fundraising and logistical support to combat, Coulombe told the Senate committee. Thirty of those individuals are believed to be engaged in fighting in Syria.
A chief concern is trained and committed jihadists returning to Canada.
U.S. Director of National Intelligence James Clapper told the Senate Intelligence Committee last month that al-Qaida groups in Syria have started training camps “to train people to go back to their countries” — one of the newest threats emerging in the past year to U.S. security.
Beginning in 2009, CSIS came before Mosley with applications for electronic communications intercept warrants. The service successfully argued that limiting execution of the interception techniques to passive listening posts on Canadian soil — such as the top-secret military signals interception station on Leitrim Road in south Ottawa — would be within the power of the court. Mosley agreed and granted an undisclosed number of warrants to CSIS.
But Mosley learned last August that once the warrants were approved by the court, Communications Security Establishment Canada (CSE), on behalf of sister agency CSIS, tasked the jobs to one or more of its partners in the “Five Eyes” intelligence-gathering alliance among Canada, the U.S., Great Britain, Australia and New Zealand.
Mosley summoned CSIS, CSE and government officials and lawyers to court to explain themselves. The public version of his reasons for the order was released Dec. 20 — preceded by what amounted to an unprecedented press release signalling the court’s fury.
Original Article
Source: ottawacitizen.com/
Author: IAN MACLEOD
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