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Eavesdropping agency helped shape federal torture directive: RCMP memo

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OTTAWA - Canada's highly secretive electronic eavesdropping agency helped develop a federal directive that lets government agencies use and share information that was likely extracted through torture, a newly obtained document says.

Communications Security Establishment Canada, known as CSEC, and its parent department, National Defence, were among several federal agencies that contributed to the information-sharing policy, says an RCMP memo disclosed to The Canadian Press under the Access to Information Act.

The memo, prepared in November 2011, notes the federal framework — spearheaded by the Public Safety Department — was intended to "establish a consistent approach across departments and agencies" when the exchange of national-security related information puts someone at serious risk of being tortured.

The federal policy has drawn sharp criticism from human rights advocates and opposition MPs, who say it effectively condones torture, contrary to international law and Canada's United Nations commitments.

CSEC spokesman Ryan Foreman had no comment Tuesday.

Ottawa-based CSEC monitors foreign communications — from email and phone calls to faxes and satellite transmissions — for intelligence of interest to Canada. Its staff of more than 2,000 includes experts in codebreaking, rare languages and data analysis.

The agency, with an annual budget of about $400 million, is a key component of the intelligence-sharing network known as the Five Eyes — Canada, the United States, Britain, Australia and New Zealand.

The National Security Agency, CSEC's American counterpart, is at the centre of a storm of leaks from former contractor Edward Snowden that document the U.S. agency's vast reach into cyberspace.

He recently revealed the NSA runs a top-secret data-mining program known as Prism that provides the U.S. government access to a huge volume of emails, chat logs and other information from Internet companies including Google, Microsoft and Apple.

Other documents obtained by Snowden suggest CSEC helped the United States and Britain spy on participants at the London G20 summit four years ago.

The RCMP says Public Safety began work on the federal information-sharing framework in January 2009 "in consultation with representatives" from the Mounties, CSEC, Defence, the Canadian Security Intelligence Service, the Canada Border Services Agency, Justice, Foreign Affairs and the Privy Council Office.

The four-page framework document, previously released under the access law, says when there is a "substantial risk" that sending information to — or soliciting information from — a foreign agency would result in torture, the matter should be referred to the responsible deputy minister or agency head.

In deciding what to do, the agency head will consider factors including:

— the threat to Canada's national security and the nature and immanence of the threat;

— the status of Canada's relationship with — and the human rights record of — the foreign agency;

— the rationale for believing that sharing the information would lead to torture;

— the proposed measures to lessen the risk, and the likelihood they will be successful — for instance, the agency's track record in complying with past assurances;

— the views of Foreign Affairs and other agencies.

In 2011 former public safety minister Vic Toews issued directives to the RCMP, CSIS and the federal border agency that closely followed the wording of the government-wide framework.

Seven years ago a federal commission of inquiry into the case of Ottawa telecommunications 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.

Arar, a Syrian-born Canadian, was detained in New York in September 2002 and deported soon after by U.S. authorities — ending up in a grim Damascus prison cell. Under torture, he gave false confessions to Syrian military intelligence officers about involvement with al-Qaida.

The inquiry, led by Justice Dennis O'Connor, concluded that flawed information the RCMP passed to the U.S. very likely led to the Ottawa engineer's year-long nightmare. That led the Mounties to overhaul their information-sharing procedures.

The newly released RCMP memo says the federal directive on information-sharing would "supplement" those changes.

Critics, however, say the federal directive flies in the face of O'Connor's recommendations.

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