The process by which the Canadian spy agency is requesting orders is jeopardizing its national security investigations, according to a new report from an independent surveillance agency.
The National Security and Intelligence Review Agency (NSIRA) report, released on Thursday, points to a problematic relationship between the intelligence service and the Department of Justice.
“This review found an intelligence service and its attorney struggling to organize themselves in a way that would allow them to easily comply with their legal obligations,” he says.
The CSIS’s mandate includes investigating alleged national security threats, such as espionage, foreign interference, and terrorism, and taking steps to reduce those threats. If these measures violate the Canadian Charter of Rights and Freedoms or any other Canadian law, the CSIS must first obtain an order from a Federal Court judge.
The agency would need an order to, for example, intercept communications from a target.
The authors of the report wrote that while guarantees in the ordering process are essential, the current system is affected by excessive complexity and has no clear lines of responsibility.
The “order application process prevents some collection activities from progressing,” the report says.
A “culture of distrust”
Part of the problem, the report says, is that the “laborious” process by which the CSIS seeks and receives advice from the Justice Department on orders has had a detrimental effect on CSIS operations.
NSIRA said the CSIS needs quick answers when it is in the middle of an investigation, and the Justice Department has struggled at times to provide timely and useful legal advice.
The department provides advice to the CSIS with a “traffic light” system where a green risk rating represents a low legal risk for the CSIS, a red rating represents a high legal risk, and yellow represents an intermediate legal risk.
“Yellow light responses are the most common and most frustrating for the CSIS, especially when they are not accompanied by discussions on how to mitigate the risk,” the report said.
The Minister of Justice and Attorney General of Canada David Lametti. The report said that Justice Canada does not always give the CSIS legal advice on the orders it needs to do its job. (Sean Kilpatrick / Canadian Press)
But researchers also said the CSIS has not always shared relevant information with the federal department.
“The problems have led to a culture of mistrust of lawyers and a systemic reaction by which the CSIS sometimes avoids seeking legal advice,” they wrote in the report.
In a joint statement to the media, Justice Minister David Lametti and Public Security Minister Marco Mendicino said they accept “almost all the recommendations” of the review “and are working hard to implement them”.
“Both the Justice of Canada and the CSIS are taking their responsibilities to Canadians very seriously. Extensive work is already underway to make the necessary changes and improvements, and will continue,” the statement said.
The statement added that the government has hired an adviser, former Supreme Court Judge Ian Binnie, to help implement the recommendations in the Justice Department.
The CSIS does not prioritize the formation of orders
Although the orders are the “experience of the functions of the CSIS as an intelligence agency”, the review also found that the CSIS has failed to make the request for such orders a specialized trade within the agency that requires training, experience, and investment, although the Federal Court routinely admonishes it. to omit key details of mandate requests.
CSIS officials involved in the early stages of preparing order requests do not clearly understand the legal expectations attached to the duty of sincerity, NSIRA said.
Watchdog researchers found that the CSIS is still struggling to make sure all the information that talks about the credibility of the sources is properly included in the order requests.
NSIRA said the agency’s human resources-related information management systems are “deficient” and have led to significant omissions.
The problematic relationship of the CSIS with the order process is far from new.
In 1987, the first head of the CSIS, Ted Finn, had to resign after the case against Harjit Singh Atwal, accused of conspiring to assassinate a BC cabinet minister, was expelled due to a faulty listening.
Despite the changes since then, the CSIS continues to experience errors of justification. In 2004, for example, the CSIS had to tell the Federal Court that its order request contained inaccurate information.
The Canadian Security Intelligence Service has been having problems with its warranty claims for years. (CBC)
The following year, the Federal Court rejected a request for a CSIS order after finding that part of the information in the affidavit was misleading and did not disclose material facts.
Despite promises of reform, Thursday’s report concluded that the problems are deeply rooted in the CSIS.
“NSIRA listened to the repeated concerns of the respondents that the problems arising from governance, systemic and cultural challenges endanger the ability of the intelligence service to fulfill the mandate assigned to it by Parliament,” he wrote. monitoring body in its report.
“Addressing these challenges is in the public interest.”
NSIRA defines “systemic” issues as those that affect the organization as a whole, not those arising from individuals. It defines “cultural” issues as those that have arisen over time within an organization as its members learned to work in a particular way through a shared understanding.
Low morale reported to spy agency
Thursday’s report stemmed from a 2020 Federal Court ruling finding that the CSIS had breached its “duty of frankness” by failing to report that it relied on information illegally collected to support orders. of an extremist investigation.
Shortly afterwards, NSIRA launched a review on how the agency handles authorization applications. He conducted dozens of confidential interviews with Justice Department and CSIS employees.
Reviewers repeatedly listened to respondents ’concerns about the cultural issues the agency faces, often stemming from frustrations with the mandate application system.
“NSIRA heard and read a lot about very low morale in the CSIS,” the report said.
“Morale is affected when a system of procurement repeatedly prevents CSIS officers from fulfilling their obligations, and is the source of the usual reputational crises stemming from breaching the duty of sincerity.”
Another problem raised during the interviews was the inadequate training of intelligence agents.
“CSIS recognizes that it is not currently a learning organization and does not have a learning culture,” the report says.
“There are too few training opportunities needed to maintain a modern professional intelligence service operating in a complex environment.”
In the end, NSIRA made 20 recommendations to the CSIS and the Departments of Justice and Public Safety.
The authors of the reports said that NSIRA will launch a follow-up review within two years to see if anything has changed.