Canada's foreign intelligence agency can now eavesdrop on citizens abroad

A race to investigate a pair of homegrown terrorism suspects who fled the country has opened the door for a new federal power: giving Ottawa's secretive foreign-intelligence eavesdropping agency the task of spying on Canadians abroad.Nine months ago, counterterrorism agents held an urgent meeting with a Federal Court judge. Canadian Security Intelligence Service operatives explained they had been spying on two citizens whose chatter was so disturbing it amounted to a major threat. But once the suspects left the country, the wiretaps went dead.As had happened many times before, CSIS was left in the dark, with no lawful powers to intercept communications outside of Canada. Once confronted with that loophole, Mr. Justice Richard Mosley signed off on a bold new power – a decision made in January, though the reasoning behind it was not released until Tuesday.The judge authorized a special warrant that allows an even more secretive spy agency, the Communications Security Establishment Canada, to team up with CSIS by vacuuming up Canadian suspects' conversations from satellite signals and data lines.In other words, although it is explicitly a “foreign intelligence” agency, the CSE can now advance domestic investigations involving Canadian targets.“Given the urgency of the situation laid before me … I determined it would be inappropriate to delay the issuance of the warrant,” Judge Mosley wrote. Taking pains to shield the suspects' identities, he stressed there were “ample” and “exigent” reasons to sign off on the new power.The ruling “pertained to threat activities which, it was believed, the two individuals would engage in while travelling outside of Canada,” he wrote.By signing off on this extraordinary warrant, the judge reversed a long-standing loophole that has pained Canadian counterterrorism agents for much of the last decade.CSIS, the “human intelligence agency,” can only intercept communications in Canada if a judge grants a domestic warrant.The CSE, the powerful but low-profile “signals intelligence agency,” can scoop up as many foreign conversations as it wants through its technological wizardry. Yet it is usually legally obliged to block its ears once a Canadian citizen gets on the line.So when Canadian extremists travelled abroad – a situation never contemplated during the Cold War, but arising frequently now in places like Somalia, Sri Lanka, Pakistan and Afghanistan – a policy gap was laid bare. There was no legal means for Canadian agencies to spy on Canadian citizens abroad.“Resolution of this issue was long overdue,” said Wesley Wark, a university professor specializing in security issues. “It was ridiculous to contemplate the idea of a Canadian citizen suspected of posing a threat to national security getting a free pass when leaving the country.”There were ways to work around the problem. Canada could ask an allied eavesdropping agency to listen in on conversations. And within Canada, telecom companies could be urged to cough up records showing international call patterns. Yet the ability for federal spies to listen in on dangerous conversations in real time was compromised.Years ago, CSIS and CSE tried to work out a compromise informally, but couldn't. Because the CSE is prohibited by law from spying on Canadians, it takes great pains to sanitize its intelligence transcripts – replacing any Canadian chatter inadvertently picked up with references to “a Canadian person” – and was wary of CSIS's overtures to join forces.National-security officials grew to hope that the courts or, failing that, Parliament could arrange some kind of shotgun marriage of CSIS's mandate with the CSE's capabilities. Yet before Judge Mosley signed off on the power early this year, that union had eluded them.Two years ago, Federal Court Judge Edmond Blanchard rejected a similar CSIS bid for CSE help in listening in on nine Canadian terrorism suspects who had gone overseas – also never identified.But that judge ruled that he couldn't sign off on any outside-of-Canada spying that could potentially violate foreign laws.Confronted early this year with the parallel case of two Canadian suspects, Judge Mosley – who helped craft Canada's terrorism laws in his past life as a Justice Department mandarin – came to a different understanding.The CSE does gather “foreign intelligence.” But it can do this largely from listening posts that are stationed within Canada. So warrants for this spying power, used in this way, he found, wouldn't violate any foreign laws at all...MORE..http://www.theglobeandmail.com/news/national/canadas-foreign-intelligence-agency-can-now-eavesdrop-on-citizens-abroad/article1313804/