CSIS Annual Report comments on information sharing and the challenge of operating in the new legal environment

NSL, Ch. 10.

The 2008-2009 Canadian Security Intelligence Service Annual Report, released on April 12, 2010, contains several passages of potential interest on intelligence-sharing.  These read:

In 2008-09, CSIS implemented three new foreign arrangements, and as of March 31st,
2009, had 278 foreign arrangements in 147 countries. CSIS uses
appropriate caveats or instructions when sharing information with
foreign agencies, and these caveats have been enhanced following
recommendations made by the O’Connor Commission of Inquiry. The caveats
applied by CSIS to accompanying information shared with foreign
agencies seek assurances that any Canadian citizen detained by a
foreign government will be fairly treated within the accepted norms of
international conventions. Those caveats also seek assurances that the
detainee is accorded due process under law and afforded access to
Canadian diplomatic personnel if requested.

Additionally, in
2007, CSIS and Canada’s Department of Foreign Affairs and International
Trade (DFAIT) implemented a new Memorandum of Understanding (MOU) which
was drafted directly in response to recommendations made by the
O’Connor Commission, the Inspector General and the Security
Intelligence Review Committee. The MOU provides an improved framework
for cooperation relating to consular cases involving Canadians detained
abroad on security or terrorism-related cases. It also allows for CSIS—
through its foreign counterparts—to try and facilitate consular access
for DFAIT on behalf of the latter in rare instances where such access
may initially be refused to DFAIT, which continues to be the lead in
consular access issues for the Government of Canada.

In
November 2008, the CSIS Deputy Director of Operations also issued a
directive to formalize these important principles in the context of
sharing information with agencies that have poor human rights records.
Lastly, the Director of CSIS received specific Ministerial Direction
from the Minister of Public Safety on information-sharing with foreign
agencies.

CSIS shares information with foreign agencies on a
number of issues. For security, privacy and confidentiality reasons,
the Service does not publicly divulge details of that information nor
identify the foreign agencies in question. CSIS must protect its
foreign arrangements in order to keep those relationships viable and
secure. Foreign agencies have an expectation that the information they
provide to us will be kept confidential and CSIS has a similar
expectation that any information we provide to foreign agencies will
not be publicly divulged.

When CSIS enters into any type
of arrangement, be it domestic or foreign, it becomes a signatory to
the “third party rule” which prohibits an agency from divulging any
information shared by another agency without the sender’s express
consent. This rule is designed to protect confidential sources of
information and keep a liaison relationship secure. It is necessary to
protect the identity of sources and to respect the conditions imposed
on the sharing of information from foreign agencies to ensure the
continued flow of such information.

The report also comments on the changing legal environment in which the Service operates:

Over the past several years, various high-profile inquiries, court
cases and rulings, and legal debates on national security cases have
drawn attention to the use of intelligence information as evidence. The
work of intelligence agencies worldwide in countering the current
threat environment is under increased scrutiny. CSIS must stay on top
of this ever-shifting legal landscape....

Increasingly, information collected by
intelligence agencies is being used in court cases, leading to debates
over disclosure obligations, evidentiary standards, information
recording and retention practices and the need for intelligence
personnel to testify before the courts. The challenge for intelligence
organizations like CSIS is to strike the right balance between close
cooperation with law-enforcement agencies, while maintaining the
distinction of our respective mandates.

CSIS must continue to
ensure the protection of its classified information, methodologies,
information on its human sources and other CSIS assets such as the
identification of its employees who work in a covert capacity -
elements crucial to any current and future national security
intelligence investigations.

This ever-evolving legal
landscape and its impact on the policies and practices in national
security investigations have been challenging not only for CSIS, but
for many other intelligence agencies worldwide. The courts have made
decisions in prosecutions, civil suits, judicial reviews and other
litigation which have directly affected the Service, both in terms of
disclosure obligations and existing policies and procedures.

These
changes have provided CSIS the opportunity to reflect on our existing
business practices and to improve how we gather and process
information. It is clear that the legal environment has shifted, and
that CSIS must and will adapt within the legal framework of its mandate
to ensure that the work it does continues to respect Canada’s rule of
law.