CANADA: FEDERAL COURT EXPANDS TERROR WIRETAP POWERS

UNCLAS SECTION 01 OF 02 OTTAWA 000786

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PTER PGOV PREL CA
SUBJECT: CANADA: FEDERAL COURT EXPANDS TERROR WIRETAP POWERS

REF: OTTAWA 747


1. (SBU) Summary: Canada's Federal Court has approved the
authorization, on a case-by-case basis, of warrants permitting the
Canadian Security Intelligence Service (CSIS) to track terrorism
suspects electronically overseas, in addition to existing authority
to do so domestically. The decision significantly expands the
ability of Canadian security agencies to monitor suspected
"homegrown" extremists. Canadian national security officials
welcomed the decision, which they had long sought. However, this
decision does not remove the dilemma of how far the government
should go in publicly revealing sources and methods to secure
convictions in future criminal cases. End summary.

EXPANDED ELECTRONIC SURVEILLANCE
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2. (U) On October 6, Federal Court Justice Richard Mosley publicly
released a heavily redacted 41-page explanation of his decision to
allow CSIS to track terrorism suspects electronically overseas.
Justice Mosley had originally granted CSIS specific wiretap warrants
on November 27, 2008 to monitor two (unnamed) Canadian individuals
deemed a threat to national security, authorizing the use of
"intrusive investigative techniques and information collection at
locations within Canada" for one year. On January 24, CSIS had
applied to the Court on an "urgent" basis for an additional warrant
against the same two individuals to allow CSIS to track the suspects
abroad with respect to "threat activities which," the government
argued, "the two individuals would engage in while travelling
outside of Canada."


3. (U) CSIS's mandate limits the agency to surveillance within
Canada. The Communications Security Establishment (CSE) -- Canada's
signals intelligence agency -- has the capacity to intercept foreign
communications, but Canadian law prohibits it from monitoring the
communications of Canadians. In October 2007, the Federal Court had
rejected a similar CSIS application to enlist CSE's aid listening in
on nine Canadian terrorism suspects overseas. The Court ruled at
that time that it lacked jurisdiction to authorize "intrusive" CSIS
investigations outside Canada, and that CSE monitoring could
potentially violate foreign laws unless CSIS first obtained
permission of the countries where the surveillance would take place.


A FRESH LOOK AT THE JURISICTION ISSUE
--------------


4. (U) In its January 2009 application, CSIS had asked the Court to
revisit the jurisdiction issue. CSIS argued that a warrant to
intercept data would be executed entirely in Canada and that,
therefore, issues of the Court's jurisdiction did not arise.
Further, CSIS argued that CSE's technical assistance -- pursuant to
a judicial warrant -- did not constitute intelligence gathering for
its own purposes, as data would be passed to CSIS for analysis.


5. (U) Justice Mosley agreed with CSIS, citing "exigent"
circumstances to approve the warrant. He noted that "individuals
who pose a threat to the security of Canada may move easily and
rapidly from one country to another and maintain lines of
communication with others of like mind," adding that "information
which may be crucial to prevent or disrupt the threats may be
unavailable to the security agencies of this country if they lack
the means to follow those lines of communication." Justice Mosley
granted the warrant in January for a three month period, and renewed
it for a further nine months in April.


6. (U) Justice Mosley also ruled that CSE could monitor foreign
Q6. (U) Justice Mosley also ruled that CSE could monitor foreign
communications "at the locations within Canada where the calls will
be acquired, listened to and recorded." As the technology would be
"controlled from within Canada," he found that such surveillance
would not break foreign law. However, he decreed that the Federal
Court will continue to review wiretap warrants on a case-by-case
basis.

A VALUABLE TOOL
--------------


7. (U) The Canadian intelligence community had long sought the
expanded powers, consistently maintaining that Canada's Cold War-era
wiretap laws compromised its ability to monitor suspects in real
time. Previous to Justice Mosley's ruling, CSIS had to ask allies
to conduct electronic surveillance on CSIS's behalf or to request
that Canadian telecom companies voluntarily provide international
call records when Canadian terror suspects left the country. A CSIS
spokesperson publicly welcomed the "important ruling," noting that
it had recognized "that security threats are global and highly
mobile . . . and that countering those threats requires a new
approach."


OTTAWA 00000786 002 OF 002



CANADA A TARGET FOR HOMEGROWN EXTREMISM?
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8. (U) Separately on October 6, Canada also released a November 2008
report by the Integrated Threat Assessment Centre (ITAC) entitled
"Canada: Bi-Annual Update on the Threat from Terrorists and
Extremists," under the Access to Information Act. The report
asserted that, although no terrorist incidents had occurred in
Canada, individuals and al-Qaeda-inspired groups "have demonstrated
both the intent and capability to target critical infrastructure in
Canada." Of particular concern, it cited homegrown extremists "who
have adopted the al-Qaeda mindset" and who may travel overseas for
paramilitary and explosives training. In addition to al-Qaeda, ITAC
cited Hezbollah and the Liberation Tigers of Tamil Eelam (LTTE) as
active in Canada, although primarily engaged in fundraising.


9. (SBU) Comment: The Canadian judiciary had recently handed the
government a series of defeats in the realm of national security
(reftel). In contrast, Justice Mosley's decision gives Canadian law
enforcement and security agencies a valuable new tool to conduct
domestic terrorist investigations more thoroughly and enhances the
ability of CSIS and CSE to cooperate more effectively. Senior
national security officials have privately commented to emboffs that
they are greatly encouraged by Justice Mosley's decision itself, but
also by the Court's reasoning in coming to the decision. They
praised in particular the Justice's acknowledgement that the
transnational nature of modern terrorism requires updated tools for
government. Nonetheless, senior officials have cautioned that the
increasing "judicialization" of national security will continue to
exert pressure on the government to release intelligence information
into evidence to win convictions against terrorists in the future.
The most recent decision will give the government more intelligence
on terrorism suspects, but it does not remove the dilemma of how far
the government should go in publicly revealing sources and methods
to secure convictions.
JACOBSON