Testimony given by Ward Elcock, former director of CSIS

Highlights:


• Elcock admitted that CSIS may have information sharing agreements with countries/foreign intelligence agencies that use torture.
  
• Elcock admitted that there may have been allegations that a CSIS agent has used torture when operating abroad.
  
• Elcock said he doesn’t know of any cases like Maher Arar’s where the US detained and deported a foreign citizen to another country.
  
• Elcock said that the majority of CSIS' agreements with foreign agencies are done orally, but only written agreements need to be given to the review committee.

The following was taken from the testimony of Ward Elcock, the former Directory of CSIS, when questioned by commission counsel.

Elcock’s Background

Ward Elcock received his law degree in 1973 and was admitted to the Law Society of Upper Canada in 1975. He articled with the Federal Dept. of Justice, later holding several positions within government before being assigned to the Dept. of Energy, Mines and Resources and then the Dept. of Finance.

Between 1989 and 1994 he served as the Deputy Clerk of the Security and Intelligence Council to the Privy Council Office (PCO), where he was responsible for the legal work of the department and the coordination of security and intelligence. He then served as the director of CSIS from 1994 to May 30, 2004, and is presently a Senior Advisor to the PCO.

CSIS and the Macdonald Report

The CSIS act was proclaimed on July 16, 2021 and the RCMP security service was phased out. The report from the Macdonald Commission says there are three principle threats to Canada: foreign intelligence activities, terrorism and domestic subversion (domestic subversion hasn’t been investigated for several years). Elcock says there is also the proliferation of WMD.
He said that when CSIS was created in 1984, the two biggest risks were foreign intelligence services operating in Canada and domestic subversion, although terrorism was also increasingly being perceived as a serious threat.

Elcock said that the insertion of “religious and ideological” into terrorism definitions after Sept. 11 didn’t impact CSIS’s work because it was already a concern. He says that the biggest threat to Canada today is Sunni-Islamic extremism/terrorism. Part of a speech Elcock gave was read to court, where Elcock said that the number of targets in Canada is not large and that few of the many groups in Canada pose a threat to Canada and the US, although they might if they were within another country.

Elcock also confirmed that CSIS has no enforcement power, and that many of the threats to Canada’s security originate in foreign countries. He stressed that Canada’s intelligence service cannot keep Canada secure without the help of foreign intelligence forces, and that CSIS needs to maintain its respectability internationally.

Elcock agreed (with the Macdonald report) that some aspects of intelligence work are inappropriate for regular police forces.

Elcock said that C-36 increased CSIS’s resources 32-35%.

Accountability of CSIS

When asked, Elcock said that the legislation and the Macdonald report reflect that it is essential for CSIS to be accountable to government to ensure that information sharing is done in accordance to Canadian policies and protects Canadians. He did not say in his answer whether or not he agrees with it, though he was asked.

Elcock said that political accountability separates CSIS from other intelligence services and that CSIS takes into account Canada’s foreign policy when deciding which countries to share information with. He said CSIS has one of the most rigorous review processes of any intelligence service because it is reviewed by both SIRC and the Inspector General, as well being subject to things like the Access to Information act.

Elcock confirmed that if a CSIS agent violates the law, deliberately or unknowingly, the Director must report to the Minister.

CSIS and Other Police Forces

Elcock confirmed that CSIS has no enforcement powers. He said that CSIS provides advice (raw information and analysis) to government and police using a set of specialized investigative techniques, such as analysis. He also says that regular police forces look at a broader group of criminality, and their investigations are more reactive, whereas CSIS looks at phenomena to gain an understanding of why a group operates and its future courses of action. However, he said that since Sept. 11, they now work together more frequently, and that their mandates overlap so there is no gap. CSIS and police organizations work together, and this is referred to as civilianisation.

Elcock said that CSIS employees need to think like a terrorist and understand political currents in a given country, and that it might be more important to know about things like population migratory patterns than the criminal code. He said officers are trained to respect civil liberties and dissent, and that CSIS makes an effort to ensure that its force reflects the Canadian population (8.6% of employees are visible minorities).

Integrated National Security Enforcement Teams (INSETS) are used by the RCMP. Elcock said that CSIS is not part of INSET, which is a “police management tool”, but CSIS has seconded officers to act as analysts in an INSET. He said they are not representing CSIS in an INSET, nor are they feeding it information from CSIS.

Elcock said that things like counter-intelligence is CSIS’s area, but terrorism is shared between the RCMP and CSIS.

Intelligence and Analysis Work

There are two levels of analysis at CSIS: a) analysis done as part of an investigation and b) strategic analysis.

The PCO also has a group called Intelligence Analysis Secretariat (or something like that, he couldn’t remember), which uses analytical reports from CSIS. There is also the IAC, a coordinating committee between departments.

Elcock says that the investigative methods used by a CSIS agent must be proportionate to the threat, and the use of various techniques must be weighed against any damage to civil liberties. Except for emergencies, the least intrusive technique must be used. The more intrusive the technique, the higher the authority needed to approve it. There are three levels of investigational authority which determine how intrusive those measures can be: a) field level b) headquarters and c) ministerial or federal court approval. This issue is covered more in policy rather than legislation.

A targeting committee considers which individuals or groups to investigate, and they also decide how intrusive the investigative measures should be and what level of targeting authority is needed. Elcock had chaired this committee when he was Director.
There is also a warrant review committee, which Elcock also chaired, which considers each warrant request.

Elcock described intelligence work as gathering little bits of information at a time, which can be put together to see a bigger picture. The collection process can take months or years, and most analysis of information is done centrally at headquarters, although a field intelligence officer with analytical experience may enter some analysis into CSIS’s database of information. Because CSIS is small, people who operate in the field can also operate as analysts during their career– these people are called generalists.

The database is centralized and is accessible by field agents across the country, which helps with national investigations.

Security Intelligence Cycle (circular cycle)

1. Government Direction
a. Every year, CSIS provides the Minister with a report about its work over the past year.
The Minister uses this report to provide CSIS with written directions for the coming year
(this is only one of two types of ministerial direction).
b. Elcock said he met with the Minister every 1-2 weeks while Director of CSIS

2. Planning
a. The Director of Operations decides how to operationalize the government directions.

3. Collection
a. CSIS can only collect information which is strictly necessary.

4. Analysis
a. A strategic analytical unit, which acts as “customer relations”, checks with government
departments on what things they need more information on.

5. Reporting/Dissemination
a. The type of information depends on who the recipient of it will be, i.e. if its screening
information then it goes to Dept. of Immigration.
b. Information is also disseminated to the Minister in a report of the year’s work, who will in
turn give new directions for the agency.

Arrangements with Foreign Agencies

Arrangement with foreign agencies must be made with the approval of the Minister, after consulting with the Minister of Foreign Affairs (to ensure everything is in agreement with Canada’s foreign policy, especially if the foreign agency belongs to country that isn’t very democratic or violates human rights). However, if establishing a relationship with a foreign agency is considered necessary for Canada’s national security, CSIS can enter into the agreement without consulting DFAIT.

Elcock admitted that some agreements are in writing, but the majority are oral, and that only written agreements need to be given to the review committee.

Intelligence liaison work is used to maintain good relations with other agencies. Canada has approx. 247 relationships with other intelligence services, and CSIS acknowledges liaison officers in the US, UK and France. Liaison officers can also help with the screening of immigrants.

CSIS has made new relationships with foreign agencies since Sept. 11, but says that not all have full participation by each party.

The Macdonald report says that an agreement should not be made with an agency of a foreign country if it means implicitly condoning policies that are against Canada’s foreign policy. Elcock said that this is why the legislation requires consultation with the Minister of DFAIT before it can enter into an arrangement with a foreign agency.

Elcock said CSIS is strictly bound by its statutory mandate and that it doesn’t pass information to other agencies if it’s not in the mandate to do so. He also said that sometimes they don’t have the information being requested.

CSIS occasionally does joint operations with foreign services, but would need approval from the Minister (and consult with the minister of DFAIT) if there would be any risk to Canada’s reputation.

There are three types of information sharing agreements: a) technical information, b) screening information and c) security intelligence. All three of the agreements can be in place simultaneously with a single foreign agency.

Caveats (restrictions on the use and further dissemination of shared information)

1. Information and intelligence subject to the Access to Information Act and Privacy Act must not be disclosed without consultation with CSIS.

2. With the reclassification and further dissemination of documents, it must be noted that the document was loaned in confidence for internal use only. If the receiving agency is subject to access to information laws and cannot protect the information from disclosure, they must notify CSIS and return the document.

3. Information from sensitive sources is loaned in confidentiality no action can be taken on this information which may jeopardize those sources. It must not be reclassified or disseminated, in whole or in part, without the consent of the originator (CSIS).
a. This is the third party rule, which states that before you disclose, you need our consent.
If the third party rule is violated, it may affect the way information is shared in the future.

4. Disclosure would injure Canada’s national security, therefore CSIS objects to any disclosure.

Sharing of information with foreign agencies and the application of caveats is done on a case-by-case basis with the approval of the Director General of the branch that shared the information.
Elcock admitted that CSIS has gone back to foreign agencies and asked to be allowed to disclose information they provided.

Reliability of Information/ Information Extracted Under Torture

CSIS assesses the reliability information from foreign agencies. Elcock said that CSIS must always look at the information it receives and corroborate it, or else the information is useless. He said that a poor human rights record is taken into account when CSIS receives information, because it may impact the reliability of the information.

Elcock said he had forgotten that Maher was held in Syria’s Palestine Branch, and isn’t sure if he “knew it originally.”

He says CSIS never passes on information it considers unreliable, however, if its about an urgent situation like a bomb that will explode tomorrow, CSIS will pass it on with a warning that the information is considered unreliable.

Elcock said that CSIS would never know if any information was extracted under torture, and may only suspect it. He said that the human rights record of a country and the form of the information are just “clues” that it may have been extracted under torture, but are not conclusive. However, he also said that if CSIS concludes that a piece of information was extracted under torture, they don’t reject it but try to corroborate it from other sources. If it can’t be corroborated, they will delete it from their database and the information wouldn’t be passed on even in an emergency.

Renditions

Elcock describes US renditions as the US arresting individuals in foreign countries, even without the other country’s consent, to bring them back to the US. He says that he only knows of the rendition of people from the US to other countries from newspaper reports, and is not aware of any specific cases.

He said he is aware that Tenet, head of the CIA, testified before a senate committee that the US uses rendition, but said that Tenet didn’t clarify which type of rendition the US is using.
He said he doesn’t know of any other cases like Maher Arar’s, where the US detained and deported a foreign citizen to another country.

Elcock said that CSIS has sent an officer overseas to see a detained CDN citizen, although it is “unusual” to do so.

The following was taken from Ward Elcock’s testimony, when cross-examined by counsel for Maher Arar.

Information Sharing with Foreign Organizations

Elcock said that an oral agreement with a foreign agency could result from a CSIS agent meeting with an officer of that foreign service, or it could be the result of a meetings of heads of services. He said that the first agreement is usually just to work together within certain limits, and that information sharing arrangements are documented, even if oral. He said that and SIRC assesses all information sharing.

Elcock admits that it’s the practice of CSIS to neither confirm nor deny that there is an information sharing agreement with any service, although it openly acknowledges agreements with the UK, France and US, where liaison officers are stationed.

Elcock claimed National Security Confidentiality on the following:

• He wouldn’t give examples of relationships with foreign agencies severed for human rights abuses.
  
• He wouldn’t say if CSIS agents went to Syria at the end of 2002.
  
• He wouldn’t say if CSIS has an arrangement with Syria or any other country (known to practice torture).

Definition of Torture

Elcock said he doesn’t personally have a definition of torture, and was clearly not willing to answer what he considers torture. He kept repeating that CSIS rarely knows if torture was used (has absolute corroboration that torture).
When asked if he agrees with the UN definition of torture, he said its not relevant if he agrees or not, but that he accepts it as the UN definition.

When asked about the US dept. of Justice definition of torture, he said it was irrelevant to us and presumably has no application in Canada. He at first refused to assess how broad the US definition is, but relented after further questioning and said it is more limited than the UN definition.

Use of Torture

Elcock said CSIS agents operating outside of Canada would never be authorized to use torture. He admits that there may have been allegations that a CSIS agent used torture, but he doesn’t recall any specific instances. He said he never had to report an officer for torturing, repeating that CSIS has no enforcement power and uses “voluntary conversations.”

He doesn’t recall if a relationship was ever severed for human rights abuses, and said that restrictions have been placed on only five relationships, but he doesn’t know if it was for human rights abuses. Also, at first, he wouldn’t say if CSIS has information sharing agreements with countries that practice torture, because he says he “has no independent knowledge” that they do use torture. But he later said, “We may well have agreements with countries that we suspect may engage in torture. I doubt very much whether we would ever know for sure whether they engage in torture. There is a difference.”

He then said that they may not share much or any information with such a country, or it might share technical information (i.e. about information management) rather than intelligence about an individual or group.

He admitted recommending to the minister that CSIS enter into agreements with countries that use torture, saying they would only give information “very carefully and in a very limited fashion” to those countries.

He said CSIS does assess the circumstances of any country when deciding whether to have an arrangement or whether they should re-examine an old relationship.
However, when asked how they could possibly trust a regime that uses torture to not use information CSIS provided to torture someone, Elcock reiterated that in these cases they likely wouldn’t provide information. He says he can’t remember if any of the information shared ever had to do with an individual.

He also said that the Amnesty International and US State Dept. reports only allege torture, and that it’s not necessary for him to have an opinion of whether or not torture is used. To find out if a country uses torture, he later said that he would use reports like those mentioned above, as well as independent information from other sources, although he said that these only give a suspicion, and are not conclusive. He said they would consider a country as using torture if they have clear information about it.

He said that CSIS can’t investigate if a service uses torture, and then contradicted himself when he said that CSIS can only collect enough information to assess the quality of another agency, whether they do use torture and if CSIS should continue using its information. He said CSIS informs the Minister of concerns about torture when seeking approval for an information sharing arrangement.

He says he has no knowledge of the US government using torture to get information, and says its not known if what happened at Abu Ghraib was sanctioned by the US government.