Canadian prevented from flying because name was on US no fly list

The Economist reports that that a British man was prevented from flying home from Canada because his name was on America’s no-fly list. Dawood Hepplewhite was not allowed to board his Air Transat flight
from Toronto on February 13th when it was discovered that he was among
the 8,000 to 10,000 people prohibited by the US from flying over its
airspace. Even though Canadian airlines are not under any legal
obligation to give passenger information to the US, Mr Hepplewhite was
subsequently denied flights on Air Canada and British Airways.

It’s
unclear how Mr Hepplewhite’s name was given to American authorities.
Under existing Canadian privacy legislation, Canadian companies are not
supposed to supply customer information to foreign governments. But that
will change if a piece of Canadian legislation known as Bill C42, now
in its third reading in the House of Commons, is passed. The bill puts
in an exemption to the country’s privacy laws that will allow airlines
to divulge passenger information to the US, essentially giving American
authorities the final say on which passengers will be allowed on flights
due to pass over American airspace.

The Canadian Civil Liberties
Association has “serious concerns about the lack of legal safeguards in
Bill C42” and also the about the no-fly list’s fairness and the listing
process in general. “If a person believes they were wrongfully placed on
the US No Fly List, it is apparently very difficult to find out why
they were placed on the list, and difficult to get their name off of the
list,” the association said.
The American Civil Liberties Union, meanwhile, has brought a lawsuit
challenging the no-fly list as “unconstitutional” and “un-American”.

Canadian Supreme Court rules government may withold national security-related evidence in Tortonto 18 terrorism case

[JURIST] The Supreme Court of Canada on Thursday upheld challenged aspects of the Canada Evidence Act , ruling that national security considerations take precedence over criminal convictions. The court affirmed the constitutionality of a provision that vests the Federal Court with, and removes from trial judges, the authority to determine the national security implications of evidence that prosecutors seek to withhold. In reaching its conclusion, the court noted the balance that must be struck between ensuring security and a fair judicial system:

As we have stated, co-operative arrangements between the prosecution and the defence are to be encouraged, as they have the potential to greatly facilitate complex trials for all parties involved and to reduce the strain on judicial resources. However, the defence is under no obligation to cooperate with the prosecution and if the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that in the circumstances a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information.

The case stems from the prosecutions of the “Toronto 18” who were arrested in 2006 after police learned of their plans to bomb sites throughout Ontario using fertilizer explosives in response to Canada’s military involvement in Afghanistan.

Canadian intelligence head criticized role of courts in anti-terrorism cases

Canadian Security Intelligence Service (CSIS) Director Judd discussed domestic and foreign terror threats with Counselor of the State Department Cohen in Ottawa on 2 July 2008. In particular, he wasn’t very happy about the Canadian courts. Cable 08OTTAWA918 from Wikileaks’ Cablegate offers some insights:

Director Judd ascribed an “Alice in Wonderland” worldview to Canadians and their courts, whose judges have tied CSIS “in knots,” making it ever more difficult to detect and prevent terror attacks in Canada and abroad. (…) He noted, however, that Hezbollah members, and their lawyers, were considering new avenues of litigation resulting from recent court rulings that, Judd complained, had inappropriately treated intelligence agencies like law enforcement bodies (refs A and C).  The Director observed that CSIS was “sinking deeper and deeper into judicial processes,” making Legal Affairs the fastest growing division of his organization.  Indeed, he added, legal challenges were becoming a “distraction” that could have a major “chill effect” on intelligence officials.

Judd derided recent judgments in Canada’s courts that threaten to undermine foreign government intelligence that threaten to undermine foreign government intelligence- and information-sharing with Canada.  These judgments posit that Canadian authorities cannot use information that “may have been” derived from torture, and that any Canadian public official who conveys such information may be subject to criminal prosecution.  This, he commented, put the government in a reverse-onus situation whereby it would have to “prove” the innocence of partner nations in the face of assumed wrongdoing.

Judd was predicting then that Canada would soon introduce ‘special advocates’ in its courts.

In another interesting insight Judd added that CSIS recently talked to Iran’s Ministry of Intelligence and Security (MOIS) after that agency requested its own channel of communication to Canada, he said.  The Iranians agreed to “help” on Afghan issues, including sharing information regarding potential attacks. However, “we have not figured out what they are up to,” Judd confided, since it is clear that the “Iranians want ISAF to bleed…slowly.”

Edit: The last time I heard a reference to Alice in Wonderland or its author, Lewis Caroll, in a counter-terrorism context was two years ago in the Parhat judgment of Judge Garland. Parhat was one of the Uighur detainees at Guantanamo Bay who was transferred to Bermuda in June 2009. The ruling criticized the US government’s argument that evidence must be reliable because it appears in several documents, stating that “This comes perilously close to suggesting that whatever the government says must be treated as true.” It compared this argument to the Bellman’s dictum in Lewis Carroll’s The Hunting of the Snark: “Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice’ does not make an allegation true.”

Canada introduces legislation to give new technological powers to police

Canada’s proposed Investigative Powers for the 21st Century Act would provide law enforcement agencies with new, specialized investigative powers to help them take action against Internet child sexual exploitation, disrupt on-line organized crime activity, and prevent terrorism by:

• enabling police to identify all the network nodes and jurisdictions involved in the transmission of data and trace the communications back to a suspect. Judicial authorizations would be required to obtain transmission data, which provides information on the routing but does not include the content of a private communication;
• requiring a telecommunications service provider to temporarily keep data so that it is not lost or deleted in the time it takes law enforcement agencies to return with a search warrant or production order to obtain it;
• making it illegal to possess a computer virus for the purposes of committing an offence of mischief; and
• enhancing international cooperation to help in investigating and prosecuting crime that goes beyond Canada’s borders.

“We are giving our police the tools they  need to keep up with criminals who are increasingly using new technology in carrying out their crimes. High tech criminals must be met by high-tech police,” said Dave MacKenzie, M.P. for Oxford and Parliamentary Secretary to the Minister of Public  Safety. “This announcement once again demonstrates our commitment to  give our law enforcement agencies the tools they need to make our  communities safer.”

The Canadian government says that the Investigating and Preventing Criminal Electronic Communications Act would address challenges posed by today’s technologies that did not exist when the legal framework for interception was last updated nearly forty years ago. The Act would require service providers to include interception capability in their networks, thereby allowing law enforcement and national security agencies to execute authorizations for interception in a more timely and efficient manner with a warrant. The proposed Act also calls for service providers to supply basic subscriber information upon request to designated law enforcement, Competition Bureau and national security officials.

Requirements to obtain court orders to intercept communications will not be changed by this Act. This legislation will simply help ensure that, when warrants are issued, telecommunications companies have the technical ability required to intercept communications for the police and the Canadian Security Intelligence Service.

Other countries, such as the United Kingdom, the United States, Australia, New Zealand, Germany, and Sweden, already have similar legislation in place.

The U.N. Security Council’s 1267 Regime and the Rule of Law in Canada

New paper by the BC Civil Liberties Asssociation. The paper considers, inter alia, whether Canada’s implementation of the 1267 Regime is consistent with its due process obligations under the Charter of Rights and Freedoms and the Bill of Rights, using the experience of Abdelrazik as an example of Canada’s domestic implementation at work. Read it here.

Court refuses to expedite Khadr appeal

The Globe and Mail reports that Canada’s courts have effectively handed the Harper government a win in its fight against Omar Khadr by refusing to take up the case on an urgent basis, his lawyer said Tuesday. In his decision, Mr. Justice David Stratas of the Federal Court of Appeal said he had no choice but to deny Mr. Khadr’s request to have the matter heard on an urgent basis. He said that was because the court had twice turned down a similar request from Mr. Khadr.

“I am bound by these earlier refusals unless Mr. Khadr can demonstrate, through evidence of a significant new development, that there has been a marked change in circumstances,” Judge Stratas wrote.

“Mr. Khadr has not shown this.”

The collapse of Mr. Khadr’s lawyer, Lieutenant-Colonel Jon Jackson, last month and the adjournment of the case until October to allow him to recover did not amount to a “marked” change in circumstance, Judge Stratas said.

Governments threaten to suspend Blackberry services

The UAE, which includes the business centres of Dubai  and Abu Dhabi, said it would prevent BlackBerry services such as email, web browsing and text messaging from October, after first raising concerns with the Canadian manufacturer Research In Motion (RIM) three years ago. The ban will extend to visitors to the UAE who take their BlackBerrys  with them, although phone services will still be available.

Within hours of the UAE’s decision to block BlackBerry services, a Saudi telecommunications official said the desert kingdom would begin blocking the BlackBerry messaging service starting later this month. However, Saudi Arabia and the company that makes BlackBerry mobile devices are testing a plan that would allow the government to monitor messages sent to and from the smart phones. RIM went to work on providing a server for the country. On August 9, it was reported that the server was now operational, allowing BlackBerry users to continue to use the instant messaging service.

In a statement issued on Sunday, the UAE’s telecoms authority said the decision to ban data services “is based on the fact that, in their  current form, certain BlackBerry services allow users to act without any legal accountability, causing judicial, social and national security  concerns”.The UAE government, which relies heavily on high-tech surveillance measures as key elements of its security infrastructure, said it had had discussions with RIM about its concerns but no progress was made. But Mohammed al-Ghanim, director-general of the Telecommunications Regulatory Authority, dismissed suggestions that the regulator’s decision had anything to do with censorship.

“It is about regulatory compliance and we are not asking for RIM to do anything that is not apparently being done in developed nations or so-called open countries around the world,” he said.

The Gulf states have singled out BlackBerry, which has 46m users worldwide, because unlike rivals, it encrypts its data and processes it through a handful of secure operational centres, chiefly in Canada, putting them outside of local jurisdictions. That makes it a more secure network and popular for corporate and government users, but more difficult to monitor. Other smartphones, like the Apple iPhone, are not tied to one e-mail service. In general, that means e-mail to and from the devices mostly travels over the open Internet and can be relatively easily monitored.

The move to suspend data services on the popular devices is the latest flare-up as governments in the Middle East and other countries including China, Turkey and Pakistan grapple with the free flow of information over the internet.The administration in Bahrain recently banned the provision of local news on BlackBerry devices. In Kuwait, in contrast, the instant messaging service will continue, but following negotiations between the Kuwaiti Communications Ministry and RIM, 3,000 websites with licentious content are to be blocked.

Last month, the Indian government renewed a threat to ban BlackBerry services unless RIM gave it access to data transferred by its secured messaging system. This was resolved last week after the head of internal security in India said RIM agreed to address concerns over the possible use of its data services by terrorists.

According to the Financial Times, Google and Skype could face similar threats in the future. Minutes from an Indian government meeting obtained by the newspaper say:

“There was consensus that there [is] more than one type of service for which solutions are to be explored. Some of them are BlackBerry, Skype, Google etc,” the minutes read. “It was decided first to undertake the issue of BlackBerry and then the other services.”

It’s unlikely that the Indian government is interested in Google’s search business, but about 20 million Indians are active on Google’s social networking service, Orkut, which encourages them to communicate with each other over Google Talk.

Arranging lawful interception of peer-to-peer services like Skype and Google Talk will be more difficult than for BlackBerry. The latter at least goes through a single server, while VoIP communications such as Skype are genuinely peer-to-peer in that once a call has been established the communication is entirely decentralised.

Research in Motion (RIM) has responded to a report in India’s  Economic Times reported saying the firm will allow Indian security authorities to monitor Blackberry services.

“We won’t compromise on the security architecture of our corporate e-mails,” said RIM’s India spokesman, Satchit Gayakwad.

“We respect the requirements of regulatory bodies in terms of security, but we also look at the customer’s need for privacy.”

And in a further statement the firm said it co-operated with  all governments “with a consistent standard and the same degree of respect”.

The firm also denied it had ever provided anything unique to the government of one country that it had not offered to the governments of all countries.

RIM further said any access it granted governments and local carriers met four criteria – it was legal; the access granted to BlackBerry devices was no greater than that granted to other services; it did not change the security architecture for corporate BlackBerry customers; and it did not make country-specific deals.

More info here , here,  here.

CSIS intelligence-sharing rules released

Following a request through the Access to Information Act by Craig Forcese, several documents relating to the intelligence-sharing policies of the Canadian Security Intelligence Service (CSIS) have been released.

The documents, described in the CSIS 2008/2009 Public Report, are the following:

1. a Ministerial Direction from the Minister of Public Safety on information-sharing with foreign agencies;
2. a November 2008 directive from the CSIS Deputy Director of Operations described as formalizing “important principles in the context of sharing information with agencies that have poor human rights records”;
3. a DFAIT/CSIS MOU described as creating an “improved framework for cooperation relating to consular cases involving”;
4.  caveats attached to information shared with foreign agencies.

Read them here.

Canada commission faults law enforcement in 1985 Air India bombing final report

[JURIST] Canada’s Commission of Inquiry into the 1985 bombing of Air India Flight 182 released its final report Thursday 17 June. Led by former Canadian Supreme Court justice John Major, the Commission found that there were various institutional organizations that did not fulfill their responsibilities. Major condemned the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mountain Police (RCMP) for not utilizing the information available to them before the bombing, failing to enhance security, and not cooperating with each other during the investigation following the bombing. In remarks at press conference, Major explained the Commission’s findings:

The level of error, incompetence, and inattention which took place before the flight was sadly mirrored in many ways for many years, in how authorities, Governments, and institutions dealt with the aftermath of the murder of so many innocents: in the investigation, the legal proceedings, and in providing information, support and comfort to the families…Overall, the Government of Canada and its agencies in 1985 were not prepared for a terrorist act like the bombing of Air India Flight 182…Communications within and between security, law enforcement and transport agencies were often flawed or non-existent. Agencies relied on different concepts of risk and what constituted a threat to security. A lack of awareness of the threat of Sikh terrorism at the agency level led to inadequate procedures and practices, and employees were often poorly trained. This reflected a culture of complacency…The Government needs to take responsibility to avoid further failures and to prevent a return to a culture of complacency.

The Commission recommended enhancing the role of the National Security Advisor in the Privy Counsel Office to ensure coordination among different agencies, as well as creating a Director of Terrorism Prosecutions, amending the Canada Evidence Act, and establishing a National Security Witness Protection Coordinator. Additionally, the Commission concluded that the RCMP is not constructed to handle terrorism issues and the Canadian government lacks a knowledge and understanding of terrorism, further recommending the development of a terrorism-related academic center.

HRC Communication 1544/2007 Hamida vs Canada on non-refoulement to Tunisia

Mr. Hamida, a Tunisian national,  was living in Canada arrived in Canada on 2 October 1999, where he claimed refugee status, alleging that he had a well-founded fear of persecution in his country on account of his political opinions. He says that, at the age of 18, he was taken on as an administrative assistant in the security service of the Tunisian Ministry of the Interior. In 1991 he was promoted to the rank of auxiliary police officer and transferred to the Political Security Directorate of the Ministry of the Interior. In the course of his duties, he realized that force was used in the conduct of police inquiries and decided to resort to subterfuge so as not to participate in such acts. After numerous requests he managed to be transferred to another directorate and often found excuses to be absent from work.

In 1993 he was transferred to the Ministry’s detention centre where he was instructed to guard detainees. In March 1996 he disobeyed a strict order from his superiors not to feed detainees by offering some of his meal to a hungry young detainee. For this act, he was disarmed, interrogated, accused of sympathizing with political prisoners and placed under arrest for five months before being dismissed. After his release in August 1996, the author attempted to leave Tunisia, but he was stopped at the airport because he had no exit visit from the Director of the Security Services. He was then placed in detention for one month. On leaving prison he was subjected to very strict administrative surveillance, which required him to present himself twice a day to the security service to sign a surveillance register.

Hamida’s application failed and he was served with an expulsion order inviting him to present himself at Montreal airport on 30 January 2007 for final departure to Tunisia.

The Committee considers that the author has provided substantial evidence of a real and personal risk of his being subjected to treatment contrary to article 7 of the Covenant, on account of his dissent in the Tunisian police, his six-month police detention, the strict administrative surveillance to which he was subjected and the wanted notice issued against him by the Ministry of the Interior which mentions his “escape from administrative surveillance”. These facts have not been disputed by the State party. The Committee gives due weight to the author’s allegations regarding the pressure put on his family in Tunisia.

Having been employed by the Ministry of the Interior, then disciplined, detained and subjected to strict surveillance on account of his dissent, the Committee considers that there is a real risk of the author being regarded as a political opponent and therefore subjected to torture. This risk is increased by the asylum application which he submitted in Canada, since this makes it all the more possible that the author will be seen as a regime opponent. The Committee therefore considers that the expulsion order issued against the author would constitute a violation of article 7 of the Covenant if it were enforced.