May 18, 2018

Canada’s national sport: suing CSIS for doing its job

This piece appeared in The Hill Times on May 7, 2018

Pop quiz!  What is Canada’s ‘national game’?  Duh it’s hockey of course (or ‘ice hockey’ as the rest of the world knows it as if it needed to be distinguished from ‘field hockey’).  What with the NHL playoffs on and one Canadian team still alive (Go Winnipeg Jets!), the country is riveted even more than usual to their screens.

Then again, some would say that lacrosse is really our national game.  I’m ok with that as there is no law against having TWO sports that speak to us.  I have never played lacrosse although it looks cool and seems like hockey without ice and with unlimited legal cross checking!

Sorry to be contrary but I want to submit that we have a new national pastime.  Here it is: individuals who sue the Canadian government over the activities of the country’s security agencies for their alleged role in alleged mistreatment abroad.  We have seen a number of settlements lately: Omar Khadr got $10.5 million for his time in Guantanamo.  Three Arab Canadians also got a mittful of cash for alleged torture in Syria and Egypt.  And now Abousoufian Abdelrazik is suing for $27 million, claiming he was tortured in Sudan at the behest of the Canadian government.

The common denominator in all these cases is the charge that Canada’s spy agency, CSIS, was wholly responsible for the harm done to these men.  CSIS supposedly shared information with foreign states that used that data to torture Canadians.  Hence CSIS is to blame for everything and must be held to account.

Not surprisingly, I disagree profoundly with these settlements and am really concerned that the floodgates have been opened to this cash cow.  We are going to see many, many more such cases unless the government takes a principled stand that it will not entertain these arguments any more.  It should do exactly this, as I shall attempt to explain.

First, a primer on how an agency like CSIS works.  It is an intelligence organisation whose role is to investigate, gather information and advise government on threats to national security.  It has an act, an overview body, internal policies and must abide by Canadian law in the performance of its duties.

To gather information on these threats it is not bound by Canada’s borders.  It can go anywhere in the world to learn more about those who are a danger to us and our allies and it can enter into intelligence sharing agreements with any agency that can help understand what is going on (these are covered under Section 17 of the CSIS Act). There are rules and protocols on how to do this.

Some have argued that CSIS should not share what it knows with certain countries known to practice human rights violations (like Syria or Sudan).  I have two responses to that:

a) firstly, a country like Syria is going to do to those in its custody what it wants irrespective of what Canada shares or not, and

b) countries like the US are accused of mistreatment (in the Khadr case).  Are people suggesting that we should not share with them?

Each of these individuals were under legitimate investigation by CSIS as outlined in sections 12 and  2c) of the Act.  CSIS assessed that they constituted a threat to national security and that was the only, and correct, reason why they were under investigation.  Some have pointed out that none of these men were charged: that is irrelevant as CSIS is not in the business of laying charges.

It is also very important to remind Canadians that in virtually every case (Khadr is an exception) the men traveled willingly and on their own initiative to the countries where the alleged mistreatment took place.   They were not ‘rendered’ by anyone.

We either want CSIS to do the job it is mandated to do or we don’t.  If we do, then let it do so.  Yes, CSIS must step carefully when it comes to national security and the choice of partners it works with but it has role to play and it must be allowed to carry that out.  A big part of its function involves information sharing as it cannot work in a vacuum.

If Canadians don’t want CSIS to share information with its partners then we might want to consider dismantling the organisation in its entirely.  A half effective spy agency is no agency at all.  If we go down this road, Canadians will have to find someone else to blame when terrorists cause carnage and mayhem in our fair land.

I see a day in the very near future where someone will sue CSIS in the wake of an interview with an intelligence officer because that interview made them (pick one or several): depressed, angry, afraid, confused…  If the government does not support its security intelligence agency that will be a travesty.  Of course should any  CSIS employee break the law they should be subject to that law.  If, on the other hand, they are merely doing their jobs then hands off.

For those alleging mistreatment your anger and lawsuits should be directed at those who meted out that mistreatment, not the agency tasked with helping to keep us safe.

 

Phil Gurski worked as a senior strategic analyst at CSIS from 2001-2013, specializing in al-Qaeda/Islamic State-inspired violent extremism and radicalization and as a senior special adivser at Public Safety Canada from 2013 until his retirement from the civil service in May 2015.