Pressure builds for new law on foreign wiretaps

Canada's counterterrorism agencies have no legal means of listening in on 'targets' when they move outside the country.

Politicians and legal experts are calling on the federal government to introduce new spying laws in the wake of a court ruling that suggests counterterrorism agencies have no legal means of listening in on Canadian targets who operate outside the country.

"It's clearly a problem for Parliament to solve," said Senator Colin Kenny, the chair of the Senate's Committee on National Security and Defence. "I think it's hugely urgent."

The senator was speaking in an interview from Brussels yesterday, where he was meeting NATO ambassadors.

In a once-secret decision that was reported by The Globe and Mail on Saturday, Mr. Justice Edmond Blanchard stated he lacked jurisdiction to endorse foreign spying operations.

Last year, Canada's spy agency secretly tried and failed to get the judge to sign off on the attempts to install overseas wiretaps against 10 suspected terrorists. The targets remain subjects of an "urgent" Canadian investigation.

Because most details of the case remain censored, the only thing that is clear about the targets is that nine of the 10 are Canadian citizens or residents.

Judge Blanchard did endorse standard domestic surveillance against them, meaning that spies are hearing the conversations that take place in Canada.

But the unprecedented request for foreign spying, initiated by the Canadian Security Intelligence Service, was turned down. CSIS had launched the effort in hopes of expanding its powers and clarifying its relationship with a partner agency, the Communications Security Establishment.

CSIS, a "human intelligence" agency, was formed in the 1980s with the intent of operating mostly within Canada. Its role is markedly different than the relatively obscure CSE, a "signals-intelligence" body formed to eavesdrop on foreign conversations.

The crux of CSIS-CSE rift is that the eavesdropping agency believes the law forbids it from listening in on any Canadian citizens - anywhere. CSIS's reading of the law is that their sister agency can and should help them snoop on Canadian targets abroad.

Judge Blanchard did not settle the issue, leaving the job for Parliament. Because CSIS is now worried that a higher court is as likely to rein in foreign spying operations as endorse them, no appeal is planned.

Now that its overseas wiretaps application has failed, CSIS has not revealed how it plans to deal with the 10 targets who have been considered urgent threats for months.

The Federal Court decision states the domestic wiretaps against the targets were successfully obtained on April 25.

Events that occurred as the warrants were signed serve to illustrate the kinds of problems CSIS is encountering. In a case that's not known to relate to the warrant issue, Afghan authorities arrested a 24-year-old Canadian citizen last May.

Shortly after the arrest, a Muslim imam in Alberta went public with his account of how he tipped off authorities to the young man, who allegedly could not be dissuaded from embarking on a jihad against NATO troops in Afghanistan.

A published report indicated Afghan authorities tied the man to a host of terrorist activities in Afghanistan. But ultimately the young Canadian returned home without being accused of any crimes. He is now apparently being kept under surveillance in Alberta.

"I deny the allegations made against me," the suspect, Sohail Qureshi, told a Globe and Mail reporter in November. "However, the allegations made against me is terrorism from the point of view of those in the West, whose hands are still fresh with Muslim blood."

Most of Canada's spying laws were drafted in the Cold War era, when presumed security threats were less likely to be Canadian citizens. A U.S. counterterrorism expert, Wake Forest University professor Robert Chesney, said in an e-mail yesterday that U.S. agencies can spy on U.S. citizens abroad, subject to certain provisions.

Canada's ability to do that is unclear.

This state of affairs is "worrying," University of Toronto law professor Kent Roach said in an interview. "I think unless it's appealed, it really suggests that the government will have to clarify the CSIS Act," he added, saying he hopes the federal government straightens out a host of hanging national security issues in some sort of omnibus bill.

(Published by Globe and Mail, February 19, 2008)