Testimony given by Ward Elcock, former director of CSIS (morning)
- Elcock admitted that CSIS has relationships with foreign agencies suspected of using torture.
- Elcock admitted that information from a foreign agency that was obtained under torture could be given to the RCMP without the RCMP being aware of this.
- Elcock said he is aware the US has been secretly transporting terrorist suspects to Egypt and Jordan for interrogation (place where they may be tortured), bypassing extradition and legal procedures.
- Elcock admitted that CSIS sometimes recruits informants who are seeking refugee status. He said that officers are not allowed to offer inducements, but later admitted that informants are sometimes paid.
The following was taken from the testimony of Ward Elcock, the former director of CSIS, when cross-examined by counsel for Maher Arar (cross-examination continued from June 21).
Elcock testified that CSIS does not need conclusive proof that an individual is engaged in terrorism to investigate, but need only meet the threshold of a reasonable suspicion that the individual is a threat to national security.
He said that only information gathered during an investigation can be entered into CSIS’ databases, as they can only gather what is strictly necessary, and that CSIS is not required to meet evidentiary standards.
Elcock confirmed that CSIS will accept information from anywhere. He said that CSIS has sent officers to speak to detainees in other countries, but that there was only one case he can think of where officers participated as observers or questioners with foreign agencies. He didn’t get to say if it was with Maher Arar, as the lawyer for the Attorney General said the ruling on National Security Confidentiality must be given before specifics can be spoken of.
Erroneous Intelligence and Mistakes
Elcock wouldn’t say if Iraq was an intelligence failure, but only that it was a “less than perfect assessment” and may have been a mistake or misinterpretation of data.
He said that he isn’t aware of any case where CSIS wrongly targeted an individual, but that he is aware of frequent cases where they decide that “notwithstanding our suspicions” the individual is not a threat to Canada’s security and the investigation is thus concluded. He said they may also decide the investigation was uncalled for and that there is no justification for further investigation, but he refused to say that this means the targeting was wrong.
He said CSIS is currently investigating about 50 organizations and 350 (plus or minus 60-70) individuals.
Elcock confirmed that there is no rule preventing CSIS from sharing information with the US before reaching a conclusion about a target, but also said they would probably tell the US if they later decided an individual wasn’t a threat.
He said he isn’t aware of any outstanding cases where SIRC (Security Intelligence Review Committee) has not reviewed CSIS’ actions, but said he doesn’t know if the Nurredin case (a school principal arrested and tortured in Syria) has been reviewed yet.
Information Possibly Obtained Under Torture and the Use of Torture in Syria
Elcock said that CSIS rarely has “conclusive proof” that an agency uses torture or that information was obtained using torture, but that they might reach a conclusion about it depending on the quality, validity and reliability of the information.
He said that CSIS balances things like National Security and an individual’s rights, privacy and safety before sharing information. He said that if CSIS concludes there is any risk, then they likely won’t share the information with a country suspected, believed and assessed as one that uses torture except in very exceptional circumstances. But he said that they might still share some information, i.e. about training agents.
Elcock said that when CSIS receives information from a foreign service, it balances that service’s human rights record, the validity of the information, the ability to corroborate it and if it should be accepted.
Elcock admitted that CSIS would use information obtained under torture.
He wouldn’t say if they would refuse to share information with Syria, saying he will not comment about a particular country, and also refused to say whether Syria practices torture. He repeated that SIRC reviews all cases where information is shared with another country and said it has not criticized CSIS’ actions since Sept. 11.
Elcock said he is aware of the cases of Suresh (Supreme Court ruling that deporting someone to a country where there is a risk of torture violates the Charter) and Nurredin, but he couldn’t answer any questions because counsel for the Attorney General interrupted on grounds of National Security Confidentiality.
Liaison Officers and Relationships with Foreign Agencies
CSIS has both “Canada-based operatives” and liaison officers abroad who report about the record of the services it deals with. He said that reports are gathered at CSIS’ foreign liaison office and ultimately allow CSIS to assess a human rights situation.
Elcock admitted that CSIS has relationships with organizations suspected of using torture, but said those suspicions would govern how CSIS interacts with the organization and what information is shared.
He said CSIS has good relations with the UK, US and France - all of which are countries where CSIS acknowledges the use of liaison officers.
Relationships and the Information Flow between Canada and the US
Elcock said the director of CSIS must keep abreast of developments and issues in the national security community and have a sense of what other agencies are doing. He said that CSIS works with the US and UK when it comes to Al-Qaeda and Sunni Islamic terrorism.
Elcock said he keeps abreast of US initiatives and is aware of the detention centre in Guantanamo Bay where terrorist suspects/prisoners from Afghanistan and other parts of the world were taken for questioning. He said he is aware that the US has been secretly transporting terrorist suspects to Egypt and Jordan for interrogation, bypassing extradition and legal procedures.
Elcock said that, in sharing intelligence, Canada and the US, have one of the closest relationships in the world. He also said that CSIS does the same “balancing act” of sharing information with the US as with any other country, although “the balancing act may be different” given that we share a border and that the relationship is “long-standing” and our most important. He further explained that such qualities (i.e. long-standing, uses care with shared information) may mean that they are more reliant on that relationship. Elcock said he doesn’t remember any case since Sept. 11 where SIRC has criticized the sharing of information with the US.
He said that the Director Generals of particular operational branches that share the most information (with the US) are the Director General of Counter-Terrorism, Director General of Counter-Proliferation and the Director General of Counter-Intelligence. He said that sometimes the information is “routine” and does not need to be balanced before sharing. He said CSIS shares a “fair bit” of information with the US in a year, but that the RCMP probably shares more information with them.
Elcock also said that information about suspected members of Al-Qaeda would be shared with the US depending on whether the individuals were in Canada, if they might be going to the US, any consequences to the individual and any resulting problems. He said that the US would be informed if a suspected member of Al-Qaeda in Canada was intending to “take action” in the US or may be in the US.
When asked if CSIS takes into account that the US sends individuals to other countries where they may be tortured, Elcock replied that all consequences to an individual are taken into account. He said he isn’t aware of any case, apart from Maher Arar’s, where the US deported a person elsewhere.
Elcock said he does not remember if restrictions beyond the caveats were ever placed on information shared with the US. He said he is not aware of the US ever breaching a caveat, but that if they did, it would affect the way information was shared in the future. He admitted that CSIS would never know if the US passed information to another agency without CSIS’s consent (breaching the third party rule). He agreed that if the US gave information from CSIS to Syria,
then either CSIS gave its consent or the US breached a caveat.
RCMP AND CSIS
Elcock said the mandates of CSIS and the police overlap so there are no gaps and that CSIS and the RCMP often work together. He said they have overlapping jurisdictions in counter-terrorism, but that counter-intelligence is more CSIS’s area. He said the overlap with the RCMP and CSIS occurs when looking at a crime that will occur in the future.
Elcock said CSIS would pass unreliable information to the RCMP in the case of an emergency with a warning about its unreliability, yet he also said that they would not indicate why the information was questionable (i.e. if it was extracted under torture).
However, he said that CSIS doesn’t always provide information to the RCMP as their investigations are separate, and that if CSIS suspected someone of being an al-Qaeda member but didn’t believe they would commit a crime, CSIS would not “necessarily” inform the RCMP unless asked. Also, despite the fact that belonging to a terrorist group is a criminal offence, Elcock said CSIS might not pass information to the RCMP because the information gathered may not be admissible in court.
Memorandum of Understanding Between CSIS and the RCMP
Elcock said the memorandum of understanding, concluded in 1989 and revised in 1990, is the key document that determines the sharing of information between CSIS and the RCMP. The memorandum says CSIS agrees to share information (such as general threat assessments, individual threat assessments and investigative leads) in a timely manner or upon request when it can help an RCMP investigation involving national security. However, Elcock said that CSIS determines what would be a timely basis for providing information to the RCMP, and can even withhold that information. Elcock explained that a memorandum between two government agencies is merely a set of “general agreements for how they will behave.”
He said that only information about a serious crime would be passed on, and that decisions to share information are made on a case by case basis and depending on the facts and circumstances, the nature of the investigation, the nature of the information to be shared, if will it interfere with an investigation and if this information is usable in a criminal prosecution. He said CSIS wouldn’t share information if a criminal prosecution wasn’t possible, but that he cannot make guesses about hypothetical situations. But he said that CSIS will provide information that can be used in court.
Elcock said CSIS rarely ever shares the identity of human sources of information with the RCMP, but does give the context of the information, though it may give less detail to prevent identification.
He said that sharing information with the RCMP that came from foreign intelligence sources depends on the circumstances, and that CSIS would try to provide enough context for the RCMP to have a sense of the reliability of the information.
Elcock admitted that information obtained under torture from a foreign agency could be given to the RCMP without the RCMP being aware of this.
CSIS and Cultural Sensitivity Training
Elcock said that 2/3s of CSIS’ resources are used for counter-terrorism, and that Sunni Islamic extremism is the priority. He wouldn’t say how much of their resources are dedicated to Sunni extremism because its “inappropriate.”
He said CSIS officers are trained to collect information from a wide variety of people from various cultures and that they are trained to understand the nature of the people, culture and ethnic background of which they are dealing with. He said that officers are drawn from many communities, and that experts speak to officers about cultures, ethnicities and religions. He said that the head of the Canadian Islamic Congress recently spoke to CSIS agents about Islam.
Elcock said CSIS officers may receive additional training from experts and experienced officers who’ve worked in particular areas, and that CSIS doesn’t hold courses on “Sunni Muslims” but gives the training and experience needed. Elcock admitted that there is no formal cultural sensitivity training, and that while they “do provide additional courses,” a “large chunk” is learned on the job.
He said that CSIS investigations affect only a small part of any community being investigated because they’re not concerned with the community, just individuals. He also said that he doesn’t think saying Sunni Islamic terrorists, or Irish Catholic terrorists, is branding entire communities as terrorists. He said that you can’t refer to Sunni terrorists by referring to organizations or extremists, because it is an international organization unlike others and there are only “generic descriptions.”
Sources of Information
Elcock said that information comes from operations in Canada or abroad, “signals intelligence,” foreign services, Canadian police forces, individual citizens and the Canadian Security Establishment and surveillance.
CSIS operatives in Canada may do covert operations, but generally don’t go undercover in a terrorist organization (the police do this). Elcock said CSIS instead tries to recruit someone within an organization, and admitted that CSIS sometimes recruits people in the immigration process that are seeking refugee status. He said that officers are not allowed to offer inducements.
Elcock then admitted that he is familiar with the Sivakumar case, where Mr. Sivakumar was recruited by CSIS while seeking refugee status. He said that SIRC found Sivakumar was not recruited by CSIS, but he didn’t know if the government indicated (in a statement of defence to Sivakumar’s lawsuit) that Sivakumar was working for CSIS and had provided information to them. However, Elcock did eventually admit that SIRC found that CSIS promised Sivakumar that he would not be deported if he cooperated with them. Elcock refused to say whether he agreed or disagreed with this finding.
Elcock said he is also aware of the Goven case, which was reviewed by SIRC at the time that Bob Rae was on the committee. He recognized that Rae was critical of CSIS’s view of membership, but he refused to say if he agreed or disagreed with SIRC, saying it is inappropriate for him. Elcock said he doesn’t recall what actions CSIS made in response to Rae’s findings because he didn’t know he would be questioned about it.
Any problems CSIS has with SIRC can only be taken to the Minister.
When asked how CSIS assesses the reliability of information from someone who is seeking refugee status and is therefore vulnerable, Elcock said they use polygraphs and other methods he can’t state publicly. He admitted that informants are sometimes paid. He also said that they are usually from the community being “considered” and that sometimes people come forward out of patriotic duty.
He wouldn’t say if a voluntary informant was more reliable than a paid one, but only that every piece of information must be corroborated.
No questions from counsel for the Attorney General.
No re-examination from commission counsel.