Just Don’t Share, Except With Care

The federal government’s Public Safety Department has just released a bombshell ministerial directive dealing with the sensitive issue of intelligence sharing in cases that might involve torture. This issue has long and delicate roots, reaching back to the terrible case of Canadian intelligence sharing with the United States and Syria — post 9/11 — which resulted in Maher Arar spending a year in a Syrian cell, undergoing torture.

The way the Trudeau government has tackled this problem is noteworthy.  First, the directive has been released in public, rather than being hidden away behind a screen of secrecy, to be pecked at through access to information filings.   Second, the government has decided to confront the issue squarely, clearly believing that it could do better than the Conservative government’s 2011 version, signed off by then–Public Safety Minister Vic Toews, and that there was political capital to be had in rewriting and publishing the directive.

Publishing the directive is a sign of the Trudeau government’s determination to bring more light to the world of national security, a follow-on to the public consultations held in 2016 and a prelude to the Parliamentary and public debate to come this fall on Bill C-59, the national security framework legislation.  Transparency gets hardest when it involves bad news stories.  From the Trudeau government’s perspective, the new ministerial directive is a good news story.

Is the government right about that?  The first thing that needs to be said is that it would be hard not to improve on the 2011 ministerial directive, which muddied distinctions between national security needs and legal obligations not to be complicit in torture and ended up getting nothing right.  Still, the government needed to move its own bureaucracy into an embrace of new principles, which they have done.  I think this is a clear signal of the persuasiveness of Public Safety Minister Ralph Goodale, but also of a new and healthier working relationship between the “securicrats” in government and the political leadership.

The text of the new ministerial directive — issued to CSIS, CBSA, and the RCMP — is entitled “Avoiding Complicity in Mistreatment by Foreign Entities.”  It seeks to achieve this difficult objective by distinguishing three key elements of the intelligence sharing dilemma: 1) outbound information sharing, 2) the inbound receipt of intelligence through requests, and 3) the use of information once it has landed in Ottawa.  The ministerial directive applies the same set of principles to all three cases. Basically, this involves a No Go decision on sharing intelligence with foreign agencies, or requesting information from foreign agencies, whenever there is evidence of a potential for substantial risk of mistreatment/torture of an individual. The only circumstance in which such sharing can go ahead is where the substantial risk can be mitigated through arrangements that require the explicit authorization of the head of the agency concerned (CSIS, CBSA, RCMP).  On their heads be it, which should adduce lots of caution.

In the old ministerial directive, this decision-making power was substantially and inexplicably derogated to lower bureaucratic levels, which was just asking for trouble.

The reliability of mitigation, through such measures as caveats on the use of information and official assurances, is the real rub here.  There are no guarantees that a foreign counterpart, especially a regime with a radically different approach to civil rights and law, will necessarily obey Canadian strictures.  But at least there are backstops in terms of public reporting and close accounting of such circumstances.  If mitigation is applied and doesn’t work, we will hear of it, and hopefully the brakes will be on for any future sharing. Our partners, meanwhile, have at least been put on notice. The notice may ring a little preachy, but better that than understatement when it comes to principles.

On the use of intelligence potentially derived from torture or mistreatment, assuming it gets into the information stream, the new ministerial directive does a careful dance.  It rules out the use of such information where it might cause further mistreatment, and rules out its use in criminal or administrative proceedings (a lesson the government has learned from the painful process of trying to proceed with Security Certificate cases). The only exceptional circumstance where such information may be used is the old “ticking time bomb” scenario to prevent something like an imminent terrorist attack.  This is a staple for security agencies and not something they would be willing to forego, no matter how unlikely the circumstance itself.  The government has been persuaded to retain this exceptional circumstance. It might get them into hot water with critics who would like a more absolutist ban, but at least the government has responded by trying to carefully circumscribe such use.

The next step for the government has to be to ensure that this ministerial directive is not simply confined to the agencies reporting to the Minister of Public Safety.  DND, Global Affairs Canada, and Immigration, Refugees and Citizenship Canada, all of whom engage intelligence sharing with foreign partners, will have to be brought into the tent, to ensure that the Canadian principles laid out are applicable across government. From there, we will have to wait and see, hoping that there are no more tragedies of the sort that befell Maher Arar.

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