VZCZCXRO7172
OO RUEHGA RUEHHA RUEHMT RUEHQU RUEHVC
DE RUEHOT #0786/01 2822028
ZNR UUUUU ZZH
O 092028Z OCT 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9937
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY
RUEAIIA/CIA WASHDC PRIORITY
RHEHNSC/WHITE HOUSE NSC WASHINGTON DC PRIORITY

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 
-------------------------------- 
 
¶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? 
---------------------------------------- 
 
¶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