Secret CSIS committee weighing torture intelligence issues

CSIS head Richard Fadden waits to testify at the Commons public safety committee on Parliement Hill in Ottawa on July 5, 2010. (Adrian Wyld / THE CANADIAN PRESS)

OTTAWA -- A secret high-level committee at Canada's spy agency is tasked with deciding whether information received from abroad is tainted by torture, declassified records show.

Internal Canadian Security Intelligence Service memos reveal the key role that the recently formed Information Sharing Evaluation Committee plays in determining if the spy agency makes use of the suspect material.

The committee -- whose existence was previously unknown outside the intelligence service -- also helps CSIS decide whether to send information to foreign agencies in cases where it might lead to mistreatment.

Detailed instructions direct committee members to comb through databases, consult human rights reports and weigh the particular circumstances of each case to arrive at a decision.

Ultimately, CSIS director Dick Fadden makes the final call when the committee decides information is likely derived from torture, of if sending Canadian material to an allied agency could result in someone being abused.

The instructions issued by Michel Coulombe, CSIS deputy director of operations, put flesh on the bones of a July 2011 directive on information handling to the spy service from Public Safety Minister Vic Toews.

The government directive outlined conditions for deciding whether to share information when there is a "substantial risk" that doing so might result in someone in custody being abused.

It also said protection of life and property are the chief considerations when deciding on the use of information that may have been extracted through torture.

Opposition MPs and civil liberties advocates condemned the directive, saying it would help torture flourish in grim prison cells around the world.

Amnesty International Canada said the policy was in direct contravention of Canada's international obligations to prevent brutalization of prisoners. Inappropriate sharing of information by Canadian authorities contributed to the torture of Arab-Canadians in Syria in the post-9-11 period, Amnesty Canada pointed out.

A resulting federal inquiry into the case of Ottawa engineer Maher Arar recommended that information never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture.

The latest records, released to The Canadian Press under the Access to Information Act, show the spy agency took its cue from Toews' ministerial directive to establish the Information Sharing Evaluation Committee and draft guidelines and operating procedures for the body.

Nothing in the CSIS procedures will change the fact they open the door to use of torture-tainted information, said Micheal Vonn, policy director of the British Columbia Civil Liberties Association.

"What this amounts to is a process to violate the law. The prohibition on the use of information derived from torture is absolute," she said in an interview.

"What we have here is a bureaucratic structure to do what should not be done in the first place."

Coulombe says the instructions are intended "to provide a tool to the Service's employees to ensure that they comply with international and Canadian legislation."

The memos indicate six specific officials must be present to establish a committee quorum, though the positions have been blanked out from the documents.

Under the instructions, committee members are directed to consult CSIS databases, the agency's formal arrangements with foreign governments and institutions, assurances received from the foreign agency in question, and human rights reports from Foreign Affairs, Amnesty International and other agencies.

They also advise members to consider the "nature and imminence" of the threat to Canada's security, the importance of sharing the information, the status of Canada's relationship with -- and the human rights record of -- the foreign agency, the rationale for believing that sharing information would lead to torture, and the proposed measures to lessen the risk, and the likelihood they will be successful.

Red flags about information received by CSIS include material gleaned from a detention interview abroad, a self-incriminating confession, or another indication of potential mistreatment.

If the case involves someone in detention, the committee must consider whether the individual has been transferred to another country through extraordinary rendition to allow for brutal methods. Other questions for members: is the person being held incommunicado? Been given reasons for their arrest? Appeared before a judge?

The instructions also include central points of the Convention against Torture and major Canadian court rulings.

General guidelines say that before making a decision the committee can request that additional checks be carried out for evaluation purposes. This may include carrying out a specific interview, requesting fresh assurances from the foreign agency that provided the information, or asking the agency for details about how the information was obtained.

In the event of an imminent threat, the decisions of the evaluation committee and the CSIS director can be made verbally, say the guidelines. However, a report must be prepared as soon as possible afterwards.

In his instructions, Coulombe mentions "the need to foster an effective dialogue on this issue and for all operational managers to encourage consultation."

"Although balancing these responsibilities with our mandate to protect Canadians will, at times, pose difficult challenges, we need to remain sensitive to our responsibilities in protecting individuals from mistreatment which could result from our action, or inaction."