:
I'd like to call this meeting to order.
This is the Standing Committee on Public Safety and National Security. This is our 18th meeting. Today we are dealing with Standing Order 81(4) on the main estimates for the years 2006-2007, vote 25 under Privy Council, referred to the committee on Tuesday, April 25, 2006.
We would like to welcome our witnesses from the Security Intelligence Review Committee. The chair, Gary Filmon, will have some introductory remarks, and he can introduce the rest of the people with him.
We're also going to be dealing with the order of reference of Thursday, October 26, the study of the SIRC annual report 2005-2006. Also, we will deal with Standing Order 108(2), a study of the report of the Commission of Inquiry on the events related to Maher Arar.
We will be dealing with all three of those things in the two hours we have before us.
Mr. Filmon, if you wish, you can deal with all three issues in your introductory remarks or deal with them as you wish. Welcome to the committee. You may proceed.
:
Thank you, Mr. Chairman and members of the committee, for the invitation and the opportunity to appear before the committee. I believe the last time the Security Intelligence Review Committee was invited to appear before this committee was three years ago. So we're pleased to be here today and to respond to the issues you would like to cover.
It is a pleasure for me to introduce my fellow members. All four are here today. We have Roy Romanow, the former premier of Saskatchewan, someone who's probably familiar to most of you. We have Baljit Chadha, a prominent businessman from Montreal. We have Ray Speaker, a former member of Parliament and probably a familiar face to many of you. And we have Aldéa Landry, a former deputy premier of New Brunswick.
As well, we have a number of staff with us: our executive director, Susan Pollak; deputy director, Tim Farr; our legal counsel, Marian McGrath; and one of our researchers, Sacha Richard.
I'll begin by giving a little bit of background. I was appointed to the committee three weeks after 9/11. I was named chair just over a year ago. So I have been immersed in the challenges of security intelligence for some time now. Over the past five years, the Canadian intelligence security landscape has changed dramatically, but the framework that defines the powers and authority of both CSIS and SIRC has stood the test of time, in our view.
I'll give you a brief overview of SIRC's mandate and operations. Our role is relatively easy to describe, if rather complex to execute. We have two basic functions: one, to conduct reviews; the other, to investigate complaints. SIRC has, in law, absolute authority to examine all of the service's activities, and has full access to all of its files, no matter how sensitive or classified the information may be. The sole exception is cabinet confidences.
SIRC's reviews are designed to yield assessments across a wide range of CSIS activities. Our reviews cover all of CSIS's key program areas, although we recognize that counter-terrorism is CSIS's number one priority. We also examine CSIS's arrangements with foreign and domestic agencies, as well as the advice and assessments they provide on an ongoing basis to the Canadian government.
All of SIRC's reviews are done by assessing CSIS activities against four instruments, which together form the service's legislative and policy framework. These are: one, the CSIS Act; two, ministerial direction; three, national requirements for security intelligence; and four, CSIS operational policy. Each review includes findings and recommendations, which are sent to the director of CSIS and the inspector general. Occasionally we submit special reports under section 54 of the CSIS Act directly to the Minister of Public Safety. Our most recent such report examined the case of Maher Arar.
SIRC also investigates complaints about CSIS brought to us by individuals or groups. These complaints can be about CSIS activities, security clearances, citizenship, or human rights issues. We issue reports and make recommendations to the director and the minister, and we also report the findings of our investigations to the complainant.
I will not describe these two responsibilities in more detail because I'm sure you are already familiar with these topics, although I'd be happy to answer any questions. I'd also invite you to visit our website at www.sirc-csars.gc.ca if you want more information.
SIRC uses a number of mechanisms to reassure Canadians that CSIS is playing by the rules. We maintain a comprehensive website, participate in conferences and symposia, and visit universities. But perhaps our most visible vehicle is our annual report, which is also our primary means of reporting to Parliament on what we do. It's a sanitized public summary of the much more detailed, highly classified reviews and complaints investigations that we undertake during the year.
Our 2005-06 annual report was tabled in Parliament on October 26. This year's report provides highlights of seven reviews, as well as four decisions rendered in complaints cases. Among the more noteworthy reviews was an examination of CSIS's relationship with agencies in four countries suspected of human rights violations and an examination of CSIS's electronic surveillance and information-gathering techniques to gain a better understanding of how rapidly changing technologies are being used by CSIS and exploited by terrorists and foreign intelligence agencies. Our annual report outlines the 14 recommendations stemming from these reviews.
In 2005-06, SIRC also dealt with 63 complaints, a significant increase over recent years, and we issued four new decisions. In addition to our annual report, SIRC, like all other federal departments and agencies, prepares an annual report on plans and priorities, which was tabled in Parliament in September. It underlines that although we are a small organization—just 20 employees with a budget of $2.9 million—we are pursuing an ambitious agenda.
I know this committee has devoted considerable effort over the past month discussing the results of Mr. Justice O'Connor's factual inquiry concerning Maher Arar. As you know, SIRC conducted its own review into the matter, although we only examined CSIS's involvement, consistent with our mandate. A report was prepared pursuant to section 54 of the CSIS Act, which means that it was submitted directly to the Minister of Public Safety.
Shortly after receiving our report on May 19, 2004, the minister provided the full classified version to Mr. Justice O'Connor. We were very pleased he was made privy to our section 54 report, and we trust he benefited from our work in completing his own investigations of this case. I would also note that after examining our own findings in light of his report, the committee found them to be consistent with Mr. Justice O'Connor's factual inquiry.
Needless to say, SIRC does not lack for work, and in these turbulent times, several ongoing initiatives will likely impact us, such as the government's response to Mr. Justice O'Connor's eventual recommendations on an independent, arm's-length review mechanism for the national security activities of the RCMP and the proposal to create a committee of parliamentarians to review the activities of all of Canada's security and intelligence organizations.
In the meantime, however, we will continue to work to ensure that Canada has a security and intelligence service that acts within the law, honours our democratic values, and fully respects Canadians' rights. Our objective is even more important since 9/11, as we struggle to find the traditional Canadian balance between protecting public safety and upholding our civil liberties.
Once again, thank you for inviting us to appear before you today. My colleagues and I look forward to answering any questions you may have.
:
Thank you very much, Mr. Chair.
Thank you to the witnesses for coming today.
As you will know, the committee heard yesterday from both the current and former directors of CSIS with respect to the Maher Arar matter.
I have a couple of questions, and the first one stems from a request by Maher Arar that SIRC reopen its investigation of CSIS to determine if there was a cover-up of any intelligence reports.
You may be aware—certainly, you are—that the Syrian government stated that on three separate occasions they were told CSIS was not interested in having Maher Arar returned.
Secondly, there were concerns relating to the fact that the analysis of the data coming from the Syrian government was done by somebody with no experience in torture. Therefore, an assessment was made that it was likely not obtained by torture. Justice O'Connor said that someone with a proper background in torture would not have made that conclusion.
So the first question is, are you intending to reopen the investigation with respect to those particular items?
:
Thank you, Mr. Chairman.
Ever since I got interested in the Arar situation, one thing has been troubling me. I am convinced that the work of the Canadian Security Intelligence Service is absolutely vital to protect us against terrorist threats that have hit to other democratic countries. As a matter of fact, that work is even much more important than that of amending legislation. Therefore, one has to give the Canadian Security Intelligence Service the freedom it needs to do its work, within certain limits. Also, it must be able to communicate closely with other similar organizations in other countries.
If, in a democratic country, we have reasons to believe that a foreign citizen has relations with terrorists and that this person intends to come back to the country of which he or she has become a new citizen, it would seem normal to me that the intelligence service of that democratic country provide warning to the new country.
In other words, if the US had reasons to believe that Mr. Arar was linked to terrorist organizations, it would have been absolutely normal, and even unavoidable, that they give that information to the Canadian Security Intelligence Service.
Am I wrong? Since you have looked at many SLOs of other countries and at the relations they have with each other, have you observed this practice?
:
I'm not sure. I'll be honest with you, we'd have to know what the powers and terms of engagement of the parliamentary committee are.
It's fair to say that when we go to meet with our counterparts throughout the world, any of the ones that have parliamentary or congressional committees of oversight don't have the powers that we do. Because of need-to-know principles and protection of national security information, they don't have the access that we do when it comes to any and all of the information in the databases, all communications, and so on, when we're investigating a matter with respect to CSIS.
So we'd have to know what the proposal is and whether or not a parliamentary committee would be given all of those powers. It's probably likely that they wouldn't. Therefore, we would have to establish a relationship in which our group, because of our access to the information, our top secret rating, and so on, would be able to work in a complementary fashion with the parliamentary committee. I think it's possible, and I think we'd have to work it out.
:
Over the last few weeks our committee has been very much on top of how to improve our security service to protect Canadians, particularly the innocent Canadians who were tarnished in this country.
One thing that has really bothered me from the very beginning of the Arar case is the behaviour of the American government and the inability of our government to not only protect or stand up for our citizens, but even get information from the American government on why they're doing it. I don't know whether this falls within your mandate, but I sure want to share that concern with you and members of the committee to see how we can protect Canadians abroad.
There is increasing knowledge about what the American government is doing with secret detention centres all around the world. It's not only innocent people in the United States who are being targeted; they're working on anyone. Anyone anywhere in the world could have been put away by them and subjected to torture and that kind of thing.
On the Arar case, I'm not trying to be partisan, but when Mr. Harper, our Prime Minister, said he wanted the Americans to come clean on this issue and the response we got from the Americans was a letter saying they won't do it again, that's not reassuring at all. When the former CSIS director was here, we asked whether they had asked the American security services what prompted them to deport Mr. Arar to Syria, and they didn't share any of that information. We asked and they didn't care. Right?
At the end of the day, how can we as the Canadian government protect our citizens? How do we go on from this point to find justice for Mr. Arar for maltreatment by the American government? I don't know if you can comment on that.
:
As my colleague Mr. Romanow has indicated, CSIS is doing its best to do an outreach. In fact, in places like Toronto, we had the discussion with them just a short while ago about their involvement in the various different communities that may be sources of or affected by terrorist acts and may be a focal point of attention with respect to terrorists or suspected terrorists.
Their outreach includes holding community sessions where they let the community know what they are doing, where they encourage the communities to work with them, because certainly, as they have indicated to us, people in the communities don't all want to be tarred with the brush of being a source of terrorism or insecurity to Canada.
We have recently, on our website, included a translation in Arabic with respect to our complaints and review process so that we are reaching out to a community that at times feels, I think, that they are being put upon by negative attention, and so on.
CSIS is certainly doing the same thing, attempting to become linguistically and culturally sensitive to more communities. We encourage that in terms of our meetings with them and our discussions with them.
:
If I may just speak very briefly and finally on this—I can't speak for the chair, but I know him well, and his comments indicate this—all the members of the committee, I'm sure, share this concern of trying to put some form and order into the various agencies that are charged with this responsibility.
It's complex. When one looks at Parliament, you're looking at the conduct of public business, basically, openly. In other jurisdictions, in matters of this nature, there will inevitably be issues of national security that will be in conflict with doing business openly. Therefore, you have an immediate problem, and perhaps criticisms, as to whether or not this can be carried out.
I think the ideal situation is to try to have, I would say, this submission prepared for Mr. Justice O'Connor. Perhaps I'm biased. Ms. Landry and I are very recent arrivals here, compared to people like Mr. Filmon, our chair. But I think this is probably a meritorious suggestion for an imperfect solution that would compromise these areas and come closer to your view that we have some coordination.
:
Thank you, Mr. Chairman.
I just want to deal with a specific matter relating to the O'Connor commission, Maher Arar, the RCMP, and CSIS.
Now, the O'Connor report concluded that the RCMP had conveyed false and misleading information, to the effect that Maher Arar was an Islamic extremist associated with al-Qaeda, which, as the commission concluded, likely contributed to the subsequent rendition of Mr. Arar to Syria. Commissioner Zaccardelli, in his appearance before this committee, said that the RCMP corrected this false and misleading information on or around October 2002, on the occasion of Mr. Arar's detention.
Now, the heads of CSIS who appeared before us, former head Ward Elcock and now James Judd, stated that they were not aware that this false and misleading information was initially conveyed to U.S. officials, and that they did not know that this false and misleading information had been corrected until Commissioner Zaccardelli came before this committee four years later.
So my questions, my series of questions, are these. Is it not surprising, I would say even disturbing, that an important, indeed crucial, intelligence-relating function right within CSIS's mandate: a) would not have been known to CSIS; b) that CSIS would not have had knowledge of it being conveyed to U.S. officials; c) that CSIS would not have had any inter-agency intelligence-relating discussions with U.S. officials about it; d) that CSIS would only learn about it four years later, not because of any discussion with the RCMP and not because the RCMP had even reported it to the government, but only because Commissioner Zaccardelli reported to this committee, and without the commission of inquiry he would never have come before this committee and none of this would have ever been known; and finally, that in the absence of this information, or in the absence of this information conveyed by the RCMP to the U.S. officials that was false and misleading, CSIS continued to be engaged in the Maher Arar case, including not joining in the one-voice letter, maintaining contact with Syrian intelligence agencies during Arar's imprisonment, and not correcting the public record when damaging and prejudicial leaks were made, both during and after Maher Arar's return from imprisonment?
Is this not a serious dereliction of the intelligence-gathering mandate of CSIS? Is there not a serious dereliction of its accountability with respect to its intelligence function? And is this not something that your intelligence review committee should in fact look into?
I want to go back to the point Mr. Cotler was making and one that I was making off the top, first, with respect to the request by Mr. Arar to reopen the investigation of CSIS, particularly in light of Justice O'Connor's findings. I referenced two specific areas, and these were areas that were brought up by Mr. Arar himself. Mr. Cotler, I think, touched upon a couple of others, not the least of which was the issue around CSIS's refusal to sign off on one voice, and the second was the information flow in the information that CSIS was obtaining then being used by the RCMP and sent elsewhere.
So I would add to those two items.
I would like some clarification, because you said at the beginning that you as a group would be looking at this, making a determination to reopen it. Can I confirm that this is the case?
:
I don't think it's a matter of whether or not people made mistakes. We found no evidence that they were involved in his arrest or apprehension and deportation, that's for sure. We do know that, on the request of the Syrian intelligence officials, they did go to interview the Syrian officials. As I understand it, that was supported by not only DFAIT, but Justice O'Connor, who said they had reason to do that.
If you want to talk about whether their actions caused him to be detained longer, again, I don't think that's a conclusive thing in either Justice O'Connor's report or in any other investigation that we've done. So the question I have to get to is what you're saying specifically. Was there error of operation or did they make a contribution to it? There was nothing that we found in our report that was inconsistent with what Justice O'Connor has concluded. The question is where you are placing the blame.
I can tell you that they have made some changes as a result of a variety of things that we have investigated. Among them, in terms of what they do with information they get from countries that may be suspected of human rights violations and how they conduct themselves with respect to meetings with countries and agencies that are suspected of human rights violations, changes are already taking place to try to ensure that they're on top of these kinds of issues in future.
In terms of the actual issue of their ability to know whether the information obtained from him was by torture, I don't think we knew that until Stephen Toope did his report, nor do I think anybody else did. You had reports coming from DFAIT personnel who were in face-to-face contact. CSIS was never in face-to-face contact with Mr. Arar. Two parliamentarians, Ms. Catterall and Mr. Assadourian, went and saw him face to face, and they didn't come back reporting that they suspected that the information was obtained by torture.
So there was a great deal out there that made this a very difficult environment. Let's be fair about that. And on the other matters, we certainly had no indication from Justice O'Connor's report that it was inconsistent with our report and our investigation.
We have a job to do. It has to be a professional relationship, and he has a job to do and I'm sure he takes it very seriously.
We have a job to do, and that's to hold them accountable for their responsibilities and mandate and adhering to it under the CSIS Act, ministerial direction, and obviously their own policy framework that they have to work with. We hold them accountable to always being consistent with all of those things.
From time to time we find that they haven't been, that they haven't measured up, and we're very direct about that. On a complaints process from time to time we've found in favour of the complainant and against CSIS. That doesn't mean to say that they're not a professional organization and that they aren't taking their responsibilities very seriously. It just means that they seem to have slipped up from time to time, and that's what we're there for, to ensure that Canadians are always as well served as they can possibly be.
I think it's a relationship of creative tension. They have their job; we have our job. From time to time we'll disagree, and that's what our reports will indicate.
:
Thank you, Mr. Chairman.
On the matter regarding the torture of Maher Arar during his imprisonment, I just want to say that at the time of his rendition to Syria by the United States it was a matter of public record, it was on the U.S. State Department's annual report at the time, that Syria was a country that routinely tortured its detainees--apart from the fact that Syria was listed as a country that was a state sponsor of terrorism.
I'm saying that because that should have set off alarm bells in our own intelligence community with respect to what kind of treatment Maher Arar might have been experiencing during imprisonment in Syria.
Now let me, if I may, follow up on a pattern of questions from before, which is, what did CSIS know and when did they know it, or when did they not know it? I know CSIS to be a serious and professional body, as you mentioned, Mr. Chairman, that takes its security and intelligence-gathering functions seriously. I know that in the context of taking those responsibilities seriously they engaged, by their own acknowledgement, in regular contact with counterpart intelligence agencies, including those in the United States.
I would have to assume, therefore, that they were--and indeed are--in continuous contact with American intelligence agencies, and that therefore the intelligence allegations respecting Maher Arar, or the false and misleading intelligence allegations regarding Maher Arar, would have been the subject of discussion between the American intelligence agencies and CSIS at some point either before his detention, during his detention, after his rendition, or during his imprisonment.
In other words, is it not surprising that CSIS would not have known about the false information, the misleading information that was initially conveyed, particularly when it was on an intelligence-related topic, when they had continuous discussions with American intelligence agencies during that entire period? Isn't it disturbing, therefore, that they have to acknowledge that they found out about this only four years later, when Commissioner Zaccardelli came before this committee?
So my question is, how were they able to carry out their security and intelligence mandate--over which you have oversight--in relation to the Syrian government, in relation to the American government, in relation to the Canadian government, in relation to RCMP officials, in the absence of this crucial bit of intelligence information regarding Maher Arar?
:
I believe it's clearly a question that should be asked to CSIS, but if I may, I'll just go back to you about the heads up, that you say everybody should have known about Syria and its reputation for torture.
Well, clearly, people all over the world knew that, and the U.S. State Department knew that, yet.... CSIS did not have anybody in that entire period of time face to face with Mr. Arar. They were not a lead agency with respect to the matter on which, as I understand it, there was an exchange of information, which was Project A-O Canada, in which the RCMP was the lead agency.
But that said, you know, there were DFAIT officials who had face-to-face meetings and access to him. There were two members of Parliament who had face-to-face meetings with him. Yet this information didn't become a conclusive matter until Dr. Toope did his investigation. We were all very upset, obviously, to learn that, and I'm sure many other people were. But there were many things along the way that were going on. It's a very sad state.
Why? I can only speculate, because you're putting me in a position where I have to speculate, basically, as to why CSIS was never made aware of it, and that is only to say that they weren't the lead agency in the investigation and the file that was being put together on him. That Project A-O Canada was one that the RCMP was the lead agency in; therefore, as I understand it, they were having the direct relationship with the Americans on this.
:
Apparently you found that there was no record of CSIS approval for the RCMP to disclose CSIS information about Mr. Arar to a third party.
Under section 19 of the CSIS Act, it prohibits CSIS—I think it's in your report on page 33—from releasing information without written documentation. It states: “When such information is released, the Director of CSIS must submit a report to SIRC.”
In the past, it looks like you said that you did not receive anything in writing. It's clear that the act said that it must do so in writing. They didn't do it in writing, so obviously something must have gone wrong—this is the “Disclosures of Information” section on page 33 of your report.
If you refer back to the paragraph before, on page 32, if a CSIS employee has acted in a way that is not necessarily appropriate, the director of CSIS must submit a report to the minister, etc.—this is under section 20 of the act—and then in turn the minister must send the report with his or her comments to the Attorney General of Canada and to SIRC. There was no such report filed.
It seems to me—and I don't know whether you agree—that there was no written record of a disclosure of information.
I wasn't going to go here, but would it be, in your view, since some people sitting at home watching may say, yes, they're trying to protect their job, but I don't think that's occurring here.... Despite the fact that I dislike intensely adding additional layers of administrative bureaucracy, would it perhaps be, then, based on what you've just said, a good reason to have a parliamentary oversight in addition to what you do? That parliamentary overseeing body could then access your group as well as those other agencies, so there would be that umbrella group able to coordinate through a parliamentary process.
In other words, the legislators would then--being sworn to secrecy, of course--have an oversight. Do you see a value in that, based on the best practices you've just referred to?