A Foreign Intelligence Service in Increments?

NSL, ch. 3, p.84 et seq.

As discussed in National Security Law, CSIS has a global security intelligence mandate under section 12 of the CSIS Act.  That is, there are no territorial constraints on the collection of security intelligence (although some doubt may have been cast on this supposition by the Federal Court, a decision whose implications I suspect are being artfully ignored).  CSIS's "foreign intelligence" mandate, on the other hand, is contained in section 16 and is confined to intelligence work in Canada, done at the behest of Ministers of National Defence or Foreign Affairs.

 

As noted in National Security Law, doubt has been expressed in the past that the geographic limiter in section 16 is truly meanful, given the prospect that extraterritorial section 12 work may unearth foreign intelligence, which is then fed into the government information pipeline without an eye to the niceties of section 16.  The most recent Security Intelligence Review Committee annual report echoes these concerns:

 

The review found that CSIS’s policies and procedures for collecting, analysing and disseminating products under Section 16 of the CSIS Act have evolved to reflect greater demands for intelligence across government. To meet these demands, the Committee found that the Service has increasingly linked Section 12 and Section 16 priorities—what CSIS refers to as blended collection.

 

SIRC is concerned at the potential implications of the melding of the Service’s Section 12 and Section 16 mandates and concludes that these changes are of consequence for the future direction of the Service. If this were to continue, CSIS could become what Parliament never intended it to be: namely, a Service with equal security intelligence and foreign intelligence mandates. Such a development would not only go against public arguments to the contrary, but would additionally ignore the longstanding practice of respected allies who intentionally separated these divergent intelligence functions to help ensure government control and accountability.

 

Foreign intelligence and security intelligence are distinct and separate disciplines, with very separate implications for, e.g., Canadian foreign policy, and careful, premeditation is to be preferred over a creeping organic evolution within CSIS if foreign intelligence work is to become more central to the Service.  SIRC's observations suggest that a careful re-think of the CSIS mandate is overdue.