by Ian Macleod
Source: The Ottawa Citizen
URL: [link]
Date: October 5, 2009


OTTAWA — Canada's spy service has won permission to electronically spy on Canadians abroad, closing a loophole that prevented government security agents from monitoring citizens suspected as national security threats once they left the country.

A Federal Court ruling released Tuesday reveals the Canadian Security Intelligence Service (CSIS) was granted an emergency warrant earlier this year to intercept the overseas communications of two unidentified Canadians suspected as security threats.

Until then, CSIS had been largely restricted to domestic operations and its warrant authorizations stopped at the border, a festering complaint within the agency in an age of global terrorism and espionage.

While most details of the case remain secret, the unidentified individuals are suspected of engaging in "threats to the security of Canada ... while travelling outside of Canada."

The agency sought "urgent" permission from the court in January for warrants under the CSIS Act authorizing "intrusive investigative techniques" to be used against the pair outside of Canada. Justice Richard Mosley granted a three-month warrant and extended it in April for an additional nine months.

"As facts of the present application disclose, individuals who pose a threat to the security of Canada may move easily and rapidly from one country to another and maintain lines of communication with others of like mind," wrote Mosley in a highly censored version of his reasons released Tuesday."Information which may be crucial to prevent or disrupt the threats may be unavailable to the security agencies of this country if they lack the means to follow those lines of communication."

Canada's signals intelligence service, the Communications Security Establishment of Canada (CSEC), has a broad foreign intelligence collection mandate, but no legal authority to listen in on Canadian citizens abroad.

Mosley's ruling crafts a compromise: The court has jurisdiction to authorize the warrant under the CSIS Act as long as the communications in question are intercepted within Canada. In this case, the CSEC will do the intercepting, presumably from its operations in Ottawa, as a technical assistance to CSIS.

By limiting execution of the interception techniques to Canadian soil, the arrangement appears to respect the territorial sovereignty of the other country or countries involved.

"The interceptions for which authorization is granted will take place at locations within Canada where the calls will be acquired, listened to and recorded," wrote Mosely.

CSIS was elated.

"This ruling is important because it recognizes that security threats are global and highly mobile," CSIS spokeswoman Manon Berube said in a prepared statement.

"Security threats move easily from one country to another and countering those threats requires a new approach. CSIS can now use this tool to defend Canada's security."

Wesley Wark, a University of Toronto security intelligence expert, called the ruling a significant one that resolves a grey area of intelligence work.

"The loophole allowed a Canadian citizen suspected of posing a threat to national security to leave the country and simply fall off Canadian intelligence radar screens," he said. "It wasn't closed before in part because of lack of political will; in part because the theoretical need to close it maybe never became an operational priority."

But in the age of convicted Ottawa terrorist Momin Khawaja and other Canadians tempted to engage in terrorism overseas, "the time had clearly come to readjust the powers and legal authorities. This will be seen as a significant new power for Canada's spy agencies."

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