:
I'd like to call this meeting to order.
This is the Standing Committee on Public Safety and National Security. This is meeting number 17, and we are meeting pursuant to Standing Order 108(2) on a study of the report of the commission of inquiry on the events relating to Maher Arar.
Our witnesses today are from the Canadian Security Intelligence Service, Mr. Jim Judd, the director, and Ward Elcock, the former director. We would like to welcome you, gentlemen, to our committee. We look forward to the information that you will convey to us.
The usual practice of this committee is to allow you to have an opening statement of whatever length, usually ten minutes. If you need a little more time, that's not a problem. Then we'll begin with questions from the official opposition and move around to the government.
Thank you very much. If you're ready to begin, we await your statement.
:
Mr. Chairman and members of this committee, thank you for inviting me to appear today to provide you with the perspective of the Canadian Security Intelligence Service on the report of Justice O'Connor on the case of Mr. Maher Arar.
As you know, Justice O'Connor did not find any evidence that my organization, or indeed Canadian officials, participated or acquiesced in the decision to detain Mr. Arar or to remove him to Syria. More specifically, Justice O'Connor found no evidence that my organization shared any information about Mr. Arar with the United States prior to his detention in New York and subsequent deportation to Syria. Those findings are consistent with those of the Security Intelligence Review Committee in its review of the service's involvement in Mr. Arar's case.
I would note as well that while some of the recommendations in Mr. Justice O'Connor's report refer to the service and our institutional practices and policies, they do so in the broader context of departments and agencies involved in national security. In fact, there are a number of very positive comments in his report regarding the policies and practices of CSIS generally. However, despite these central findings of Mr. Justice O'Connor in respect of our role in this manner, there were several criticisms of the service and some other issues that I would like to address this morning.
While there is little if anything to add to the findings of the report, I believe it is important for the committee to understand how we are responding to the report and for us to provide some background on our activities in this case. Before I do so, I should say that I very much regret the ordeal Mr. Arar and his family were subjected to as a result of his deportation to Syria.
Number one, Justice O'Connor found that CSIS did not do an adequate reliability assessment as to other information received from Syria that was likely the product of torture.
Justice O'Connor made it clear in his report that intelligence-sharing with foreign partners is essential for CSIS to collect information related to threats to Canada. We are very much aware that this can present a challenge for us in dealing with countries with poor human rights records. It is an unfortunate reality that many terrorist threats to the security of Canada originate in or have connections with countries that have poor human rights records. That is one of the reasons why the CSIS Act requires that two ministers approve any foreign liaison arrangement we might propose.
In considering any such arrangement, ministerial directives to the service and our own policy require us to specifically “address the human rights record of the country including any possible abuses by the security or intelligence organizations”. Moreover, any such arrangement will only be considered where contact is required to protect the security of Canada. We have an obligation to ensure that everything possible is done to identify threats before they materialize on our shores, and we must therefore make use of all available sources of intelligence, but always subject to reasonable safeguards.
This is obviously a difficult issue. We have arrangements with organizations and countries where there is suspicion of torture, and there are times when certain restrictions are placed on any interactions with those services. As Justice O'Connor himself observed in his report:
Decisions about how to interact with a country with a poor human rights record...can be very difficult and do not lend themselves to simple or prescriptive rules.
It is never a simple matter to determine whether information received from a foreign government with a poor human rights record was obtained as a result of torture. It does not necessarily follow, because a country has a poor human rights record, that any information received from it was the product of torture. Moreover, our normal practice with respect to the receipt of information of any kind is to seek corroboration of it from other sources prior to coming to any determination on it.
Our information exchanges with foreign organizations are reviewed annually by the Security Intelligence Review Committee to ensure that we comply with ministerial directives in our own policies, and in some instances the committee has made recommendations, a number of which have been implemented by the service.
For example, in its report on Mr. Arar, SIRC made a number of recommendations, re-stated by Justice O'Connor, regarding the need to amend CSIS's operational policies governing information-sharing and cooperation to ensure that we take into account the human rights records of foreign countries. These recommendations have already been implemented by the service.
As Minister Day noted during his appearance before this committee, we have also developed a new caveat to accompany information we share with foreign agencies. It seeks assurance that any Canadian citizen detained by a foreign government
...will be fairly treated within the accepted norms of international conventions, that he is accorded due process under law and afforded access to Canadian diplomatic personnel if requested.
Justice O'Connor also recommended that the Department of Foreign Affairs share its assessments on the human rights records of other countries to ensure a uniform appreciation of the situation in these countries. We agree with the recommendation and will be working with the Department of Foreign Affairs to ensure its implementation.
Number two, Mr. Justice O'Connor noted that CSIS and the RCMP were not supportive of an initiative by the Department of Foreign Affairs to send the letter to Syrian authorities to convey the message that Canada spoke with one voice in seeking Mr. Arar's release.
As you may know, officials from my organization were questioned on this issue extensively, both in public and in camera. There was reluctance in CSIS to proceed with the proposed letter—to be “endorsed” by the then Solicitor General—and there was among others one reservation in this regard; that is, the service's longstanding policy to neither confirm nor deny that any given individual is or is not a subject of investigation. As you know, the Solicitor General of the day expressed before this committee his own reservations about signing such a letter at that time.
Mr. Justice O'Connor has recommended that a single, coherent government approach and coordination be developed to deal with Canadian detainees in foreign countries. We accept that recommendation and will be working with Foreign Affairs and other government agencies to implement it.
Number three, Mr. Justice O'Connor was critical of both the process and the impact of the claims made by the government to protect national security confidences. While he was critical, Mr. Justice O'Connor conceded that the overall process worked well and did not prevent him from arriving at his findings in this matter.
By way of clarification for members of this committee, our organization has traditionally sought to maintain national security confidentiality in a number of areas. These include, among others: whether or not an individual is or is not under investigation by the service; the identification of individual foreign agencies with whom we have any relationship; the identification of human sources used in CSIS investigations; the identification of CSIS personnel involved in covert operations; and specific investigatory techniques used by the service in its investigations.
There are a number of reasons for this approach, including provisions in our own legislation, the Privacy Act, operational security and effectiveness, the personal safety of our employees, and others. And as you know, the issue of national security confidence claims related to this report is now before the courts.
Fourth, Mr. Justice O'Connor was very critical of the anonymous and damaging leaks that were made during his inquiry. When classified government information appeared in the public domain, CSIS conducted its own internal investigations and also participated in investigations convened by the Privy Council Office on several occasions. Mr. Justice O'Connor was unable to identify the culprits, and I understand that the RCMP's criminal investigation remains ongoing. However, none of the investigations conducted to date has suggested that CSIS personnel caused any unauthorized disclosure of information.
Let me conclude by saying that I and the service take the findings and recommendations of Justice O'Connor's report very seriously. We are, and will be, adjusting our policies in some areas in response to the report and we'll be working with other federal organizations to ensure the effective development of responses to other recommendations in that report.
Thank you, Mr. Chairman. I'd be happy now to take any questions that members of the committee may have.
:
Thank you very much, Mr. Chairman.
Joe Comartin, my colleague who is regularly on the committee, is very sorry to not be here today. A family emergency required that he return to his riding.
I don't have the benefit of having been in the committee through much of this testimony, but I have to say that I'm deeply disturbed, Mr. Judd, by two things this morning. One is your refusal in any appropriate, humane way to make an apology to Mr. Arar for the role.... I agree that the findings of Justice O'Connor on the very serious concerns about CSIS's conduct were not as extensive as some of the other actors in this, but it's very disappointing that the apology is not forthcoming. It's a question of understanding that a person's life has to go on, and it would be impossible for any one of us to say that we could get on with our life without that apology forthcoming from all who contributed to this horrendous ordeal.
The second thing I have to say I'm deeply disturbed about is that I'm aware that in Justice O'Connor's findings he indicated he did not feel that CSIS did an adequate reliability assessment as to whether the information about Arar, which certainly condemned him in the public mind and kept him in this horrendous situation, was likely to have been obtained as a product of torture. Justice O'Connor goes on to say that CSIS's assessment was that it probably was not.
I have two questions. Could you be more forthcoming with the committee about what the basis was for coming to the assessment that it was probably not obtained under torture, given that I think it was widely known, believed, and understood by a great many people that it could very well have been?
Second, I'm not the least bit assured by your comments this morning that CSIS is any more impressed today that this was a very serious problem, by what seems to have been--and I don't want to be unfair--rather casual justification several times this morning that we can't assume, and maybe it wouldn't have been....
I guess I'm wondering how you would deal with that differently today. Surely in addition to arriving at an appropriate position of an apology being owed to Arar, the really critical thing is the assurance to Canadians that this situation will not repeat itself. Yet it seems to me there is quite a reluctance on your part to acknowledge even the possibility that this evidence, eked out of Arar and obtained through torture, should be a very serious signal to extremely cautionary behaviour on the part of CSIS.
I wonder if you could address those two questions.
:
I have a follow-up question.
As somebody who doggedly asked questions again and again in the House and outside of the House, it was very shocking to me--I still feel really quite shocked by the fact--that I had a cabinet minister say to me, “Everything I hear is that this guy is really a bad cat, so you may want to be careful about being associated with his case”, which totally missed the point that there was no justice being applied here. Also, because of either deliberate leaks or this kind of casual treatment of the Arar situation, even journalists were saying, “Well, I don't know. From everything I hear, he sounds like a really bad cat, so why are you persisting in this?” In fact on one occasion two embassy personnel--at least people who identified themselves as Syrian embassy personnel--approached me after a meeting at which I had been calling for a full investigation into the Arar inquiry to say, “I think you want to be careful; this guy is really a bad cat.”
With all of that kind of discussion going on, I'd like to understand--because I can't believe that wouldn't have reached CSIS ears, seeing as they are in the intelligence business--why, given all of that, all of the pertinent officials would not have come out as one voice to say there is no possibility whatsoever of justice being brought to bear on this situation unless, as Monia Mazigh, Maher Arar's wife, said publicly again and again, we “bring him home and bring him to justice”.
What would account for the position CSIS took, that rather than bringing this person to justice they let all of this dangle out there with the distinct possibility that the information had been obtained under torture?
Good morning, gentlemen. Thank you for coming here today.
It probably would be fair to characterize the Maher Arar case as probably one of the biggest, if not the biggest, intelligence failure that our country has seen--from targeting an innocent individual in an investigation, to sharing information beyond the normal protocols, to creating leaks, to misleading government officials. It's serious stuff. I think the majority of Canadians are very nervous. They have lost a certain amount of confidence about the intelligence community in our country.
I think what is making Canadians more anxious is the fact that after the findings of Justice O'Connor's report, beyond verbal assurances and pledges, we have yet to see concrete and tangible measures being implemented by any of the intelligence agencies to assure us that these errors are never going to happen again.
Can you comment, Mr. Judd, on some operational and tangible measures that CSIS has taken, beyond making pledges, which are welcome and needed?
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I think I would agree with Mr. Justice O'Connor's conclusions in that regard, which is to say that both agencies have a role to play in national security areas. Our role tends to be very much more on the intelligence front and the RCMP's tends to be much more in the realm of processes related to criminal prosecutions.
They have, I think it's fair to say, bolstered their efforts on the intelligence side, but in the past several years we've taken a number of steps with the RCMP bilaterally to ensure that there's greater coherence in terms of what each of us does and how we do it in the national security domain.
The minister, when he appeared before this committee, talked about a number of those things, including the renewed memorandum of understanding and a series of other steps that we've taken, including cooperation on targeting investigations, decisions, training, and so on. At the end of the day, I think both organizations do have a role to play in national security, but ours is more--still and only--intelligence-related; theirs is more on the criminal prosecution end.
Thanks for being here, gentlemen. I know it's Halloween and some people may be inclined to hunt witches on Halloween, but that's not what I'm trying to do.
However, I do have to say, Mr. Elcock, that I do find it curious that the head of CSIS would not be curious about the period between October 2003 and September 2006. Mr. Zaccardelli spoke to us here about some things that were obviously bubbling up in the public eye and within the purview of CSIS, the RCMP, and whatever goes on in that world.
Mr. Judd, you mentioned that CSIS is the most reviewed intelligence service in the world, and that Canadians have a habit of navel-gazing and so on. I understand that, but is it a strength or is it a weakness?
:
Thank you very much, Mr. Chairman.
Thank you, Mr. Elcock and Mr. Judd, for coming to the committee. I just want to share some of my feelings about this issue, and hopefully we can work together to solve some of the issues.
Canada is a country of immigrants. Many of us come from some rude states and have seen human rights abuses to our forefathers or our relatives or are witnesses to such abuses. This is why it is so important for those of us who came to Canada, who came for the protection of human rights, to understand what's going on in this issue.
First, for the years I've been in Canada, I've really appreciated the work of CSIS. During the days when I was a human rights activist, CSIS was very much on alert to the things we faced. They were helpful in giving me and my colleagues confidence in this country.
Now I want to get into the questions.
We expect CSIS to protect Canadian citizens. We talk about sharing information with the States, so this is a question to Mr. Elcock particularly. After the deportation of Mr. Arar to Syria by the U.S. government, I would have expected that the Americans would have shared voluntarily with CSIS what additional information it was that they had on Mr. Arar that led them to make the decision to deport him to Syria. If they didn't do it voluntarily, I would have expected CSIS to ask for that information in order to protect our citizens. Have you asked, or have we asked?
:
Mr. Chair, normally I resist the temptation to add commentary through the question process, but I'm not going to right now because this is staggering to me.
First, that you would start off hiding behind a government line in refusing to apologize, and then that you would go one step further in saying, directly in the face of what Justice O'Connor's report said, that CSIS had no role in what happened to Maher Arar, and leading to him winding up in Syria and facing torture, is unbelievable.
But then, Mr. Elcock, for you to say to this committee that you have not read Justice O'Connor's report.... As a former director, as somebody who is a witness before this committee, that you would not even have a passing interest to read that report before appearing at the committee today is deeply upsetting.
I'm going to go back to a couple of questions that I have, the first dealing with the Syrian officials. Syrian officials stated that on three separate times CSIS had provided them with information that they did not want Mr. Arar back. And they relate specifically to perhaps the meeting in November 2002 that took place. Can you tell me what role CSIS may have played in leading to that assumption by the Syrian government, and moreover what you could have done to prevent that or avoid that interpretation?
:
Give me at least two minutes, because I would like to make a few comments.
Mr. Judd, I fully understand the position you explained to , and I know how sensitive it is to work for a secret organization, but I also know how necessary it is. In fact, I am in complete agreement with the views expressed about this by Mr. Justice Dennis O'Connor.
However, I have noted that in the absence of information, generally, there are rumours, and they are always worse than the truth.
I also think that our security depends a great deal more on the work of your organizations than on the legislation we are amending here.
So I understand the thankless position in which you find yourself, particularly since we are trying to save the lives of potential innocent victims of terrorist activity. I have not lost my old reflexes as a lawyer, and I think that in behaving in this way, we must also avoid having innocent victims suffer an unacceptable fate.
Could you tell me exactly why the United States sent Mr. Arar to Syria? Have you asked that question? If so, did you get an answer or not? If you did get an answer, did it have any impact on your way of handling this matter?
I am asking all these questions at once, because I have very little time. I think it is normal that someone who was sent in Syria by the United States and who returns from there would necessarily be a person of interest to you. However, it does not seem to me that you have dealt with the issue as though that was the case.
:
I'm not being critical, because I recognize that.
I would question some of my friends opposite as to whether they have read the report. If they read the analysis and recommendations on pages 162 and 163, they might see that Justice O'Connor is not that critical of CSIS and the role that CSIS played in this. I would perhaps question the demands for apologies from many of them about CSIS's role. When I read Mr. O'Connor's analysis and recommendations, I don't see where he has faulted CSIS a great deal for what transpired.
I think if we look at it on the basis of where fault lies, there are lots of shoulders to bear that responsibility, including political, press, perhaps the RCMP, and perhaps CSIS in some small way. But I don't think it's fair for us to be overly critical of CSIS, when we see what Mr. O'Connor wrote after having the opportunity to hear a lot of testimony.
It's fair that we're here to ask what we can about some of the issues surrounding it. It wasn't our intention with this committee to redo O'Connor. We are concerned about issues surrounding what political people knew and what they should have known, and perhaps what they did to secure Mr. Arar's release from Syria.
I guess that would lead into my question. During that period of time, when there were discussions about the one-voice letter and what was going on in Syria, can you tell us what CSIS's role--not the words--would have been in briefing the political people to work together on that one-voice letter?