Closing the Loop on National Security through Law Enforcement

October 30, 2009

Good afternoon, ladies and gentlemen.  It is a pleasure to join you today to deliver the John Tait Memorial Lecture.

Mesdames et messieurs, bonjour. Je suis heureux d’être parmi vous aujourd’hui pour honorer la mémoire de John Tait.

Many knew John Tait as a dedicated and highly principled public servant.  His seminal work at the head of a government task force literally helped write the book on values and ethics in Canada’s Public Service.

John served in some of the most senior positions in government, including security and intelligence coordinator the position now known as National Security Advisor to the Prime Minister, Deputy Solicitor General and Deputy Minister of Justice.

Mr. Tait distinguished himself as an exceptional policy advisor, combining a keen legal mind with a deep devotion to Canada and Canadians.  Much of John’s work revolved around the same challenge we face today: maintaining public safety while respecting the democratic values we cherish.

Mr. Tait was an early and vocal supporter of CASIS, because he believed in the scholarly study of security and intelligence issues, and he supported open dialogue between academics and practitioners.

On a personal note, almost exactly 17 years ago, John encouraged me to become a public servant and to join the Department of Justice.  In fact, he brought me into what was then his department, when I joined legal services at Indian and Northern Affairs in March of 1992.

I will always be grateful to John for providing me that opportunity, but more importantly, by his example, for giving me an appreciation of the quality, and importance of public service and public servants.

He was an inspiration and a terrific role model, although like many of us, he preached a better game than he played about work-life balance.  This no doubt contributed to his all too premature death 10 years ago.  He was a great public servant and a great Canadian, and he is sorely missed.

It is therefore my honour to deliver this year’s lecture in his memory.

C’est donc un privilège pour moi de prononcer cette année le discours à sa mémoire.

Today I would like to talk about the RCMP’s perspective on the current threat environment and law enforcement’s key role in addressing threats to our national security.

Puisque la GRC est le service de police national du Canada, l’ensemble de ses activités tournent autour de la sécurité nationale, au sens large du terme.

We assumed the primary responsibility for national security law enforcement in 1920, when we absorbed the Dominion Police.  The same year that Parliament created CSIS in 1984, that responsibility was codified in the Security Offences Act, which describes the RCMP’s role in national security criminal law enforcement.  There is also a reference to the role of provincial and municipal police forces.

As Prime Minister Harper said, “as incidents such as the bombing of Air India Flight 182 have shown, Canada is not immune from the deadly consequences of terrorism.  In our country, just as in other nations around the world, there have been those who have tried to take advantage of the freedoms offered by a democratic society to promote an agenda of intolerance and hatred.  This problem continues today and we must, as a nation, do everything in our power to prevent them from succeeding”.

Eight years have passed since the tragedy of 9/11, an event that fundamentally changed the national security landscape.  In that time, the RCMP, in conjunction with its partners, has conducted numerous successful national security criminal investigations.

It is widely known, for example, that we played critical roles in stopping the so called “Toronto 18” terrorist plot; and bombings that were to take place in the United Kingdom, aided by an Ottawa-based co-conspirator.

Those successes, however, need to be seen as confirmation of the reality and severity of the threats we face and not as a reason for Canadians to be complacent.

We must be prepared with the best intelligence, the right skills and the necessary resources to cope with the ongoing multi-faceted, ever-changing threat environment.

What does that threat environment look like to the RCMP?

It looks like Al-Qaeda; its off-shoots, associates and hangers-on.

As far as Al-Qaeda is concerned, Canada is the enemy. We recall Osama Bin Laden’s famous communiqué to America’s allies in November of 2002, in which he asked: “Why are your governments, especially those of Britain, France, Italy, Canada, Germany and Australia, allying themselves with America in its attacks on us in Afghanistan? This is injustice. The time has come to settle accounts. Just as you kill, so you shall be killed; just as you bomb, so you shall be bombed. And there will be more to come.”

Since then, there has not been a single indicator to suggest that Al-Qaeda has changed its position in this regard.

Sadly as we have seen on a number of fronts, including Canadian casualties in Afghanistan, the role of Al-Qaeda camps in training young Canadian militants, kidnappings of Canadians abroad and Al-Qaeda’s role in Canadian terrorism cases, Bin Laden’s “Canadian fatwa” continues.

There is a great deal of debate, both in the intelligence world and in academia, around the true nature of the continuing threat represented by terrorism in general and Al-Qaeda in particular.

Some contend that Al-Qaeda is largely a spent force and the real danger lies in radicalized individuals and small groups who meet and plot in their own neighbourhoods or on the Internet.

Others believe that “Al-Qaeda central” is reconstituting itself as we speak – in Pakistan.

Who’s right?  The problem is that both these theories are correct.

There is much credible evidence that Al-Qaeda has successfully rebuilt itself in the security of the tribal areas of western Pakistan.

Its ideological messaging remains strong through networks like the global Islamic media front.  Its command and control structures – including Bin Laden, from whom we heard recently, and Al Zawahiri – remain in place.  Its training camps are up and running.

Al-Qaeda related and inspired entities are active in the Arabian Peninsula, North Africa and the Horn of Africa and the organization itself serves as an inspiration to violent extremists all over the globe. Al-Qaeda is both a brand and an ideology.

It is an ideology that is at the heart of the radicalization of citizens of many countries, including Canada.

We have been working with a number of other Canadian police agencies, as well as CSIS, the Department of Foreign Affairs and International Trade, and Public Safety Canada in identifying strategies to address this threatening reality.

Under the auspices of the Canadian Association of Chiefs of Police – through its Counterterrorism and National Security Committee – we are identifying and standardizing a range of best practices to be shared across the country.

Unfortunately, two threats complement each other – the Al-Qaeda ideology and messaging plays a key role in radicalization, while domestically radicalized individuals often cycle through Al-Qaeda-run affiliated training camps. Sometimes, it is difficult to know where one threat ends and the other begins.

Underestimating Al-Qaeda, or choosing one alternative over the other, will almost certainly lead back to the misperceptions of the 1990s – misperceptions that predated not only 9/11, but the Madrid bombings and the 7/7 bombings, among others.

La menace actuelle prend aussi les couleurs du Hezbollah.

The current threat environment also looks like Hezballah.

The Israel-Palestine issue lies at the root of a tremendous amount of political discourse in the Muslim world. Among other things, it is a key thread in the “single narrative” that sustains not only Al-Qaeda but a host of other Islamist extremist groups.

From a Canadian national security perspective, some of the most critical potential outcomes of the Palestine issue are linked to Hezballah. It represents both a domestic and a global security threat that potentially equals – and perhaps outstrips – that of Al-Qaeda.

Hezballah’s growing resonance among global Islamists is related to its ability to maintain focus on a “real” issue-Israel. Hezballah commands tremendous admiration and credibility, not only in the Middle East, but around the world.

While Hezballah has not articulated any specific grievance with Canada, from its perspective any state that supports Israel or Israeli interests is the enemy, which casts a wide net.

Hezballah, or its associates, are suspected of at least two well-known terrorist strikes outside of Lebanon – the 1992 attack on an Israeli embassy and the 1994 bombing of a Jewish cultural centre, both in Buenos Aires.

À mesure que la situation se détériorera au moyen-orient, il faut s’attendre à l’intensification des actes terroristes du Hezbollah à l’étranger.

Another consideration in the Canadian threat environment is the failed state of Somalia.

More than 2.5 million Somalis have been rendered homeless by conflict and a million more have been displaced.  In Somalia starvation is a fact of life and a cause of death.

Somalia’s fragile coalition government appears helpless against a widespread Islamist insurgency that is gradually tightening its grip on the country.

At the same time, Somalia has real global political and economic significance. It forms a bridge between Africa and the Arabian Peninsula. Half the world’s maritime piracy involves Somali pirates operating in the Gulf of Aden, a chokepoint for much of the world’s seaborne cargo.

In the 1990s the collapse of the Somali state and the ensuing civil war provided both an incubator and a training ground for an emergent Al-Qaeda.

The ranks of the Somali insurgency are attracting thousands of young men who have been radicalized by the harsh reality of deprivation and civil war.

More recently, Al-Qaeda and other Islamist extremist groups have begun calling on the larger Muslim world to join Somali fighters in order to establish a caliphate in the Horn of Africa.

Foreign fighters are reportedly answering the call. In the United States, recent FBI investigations have focused on four Somali-American teenagers from the midwest who traveled to Somalia and joined the Islamist insurgency group, Al Shabaab. One detonated himself in a suicide bombing and another is believed to have been killed in combat.

Radicalization within the US Somali community may be an indicator of similar processes at work in Canada.  As you know, we have one of the largest Somali diaspora communities in the Western world.

The potential follow-on threat, from a Canadian and RCMP perspective, is Somali-Canadians who travel to Somalia to fight and then return, imbued with both extremist ideology and the skills necessary to translate it into direct action.

La menace d’aujourd’hui prend aussi les traits aguerris des Tigres de libération de l’Eelam tamoul, the LTTE.

The recent defeat of the Liberation Tigers of Tamil Eelam in Sri Lanka means that it has ceased to exist as an insurgency.  It remains, however, a terrorist group which could potentially have a significant impact in Canada.

There are an estimated 250,000 Tamils in this country, more than anywhere else in the world outside of Sri Lanka. Canada is one of the few places in the world where LTTE terrorists and supporters might seek to hide in plain sight, and potentially launch terrorist activities.  Although it is too soon to conclude whether any of those now in Canada, who recently arrived in British Columbia aboard the Ocean Lady represent a threat to the security of Canada, the fact of their arrival, and the potential for others to follow, does raise security concerns.

The RCMP and many Tamil Canadians are also too well aware that criminal proxies have been extremely effective at extracting so-called “war taxes” for the LTTE from Tamil-Canadians through violence and intimidation.

There have also been attempts by the LTTE and its supporters to influence the government of Canada to pressure the Sri Lankan government to achieve specific political goals in Sri Lanka.

The right to legitimate protest is one of the freedoms of democracy and the Tamil demonstrations this past summer were not, in and of themselves, a national security risk.

However, symbols of a listed terrorist entity on public display at rallies in Toronto and Ottawa certainly raise questions and concerns.

Even if the target of potential LTTE terrorists in Canada was not specifically Canadian, the outcomes could still be devastating.

Remember that in its aspirations for a Sikh homeland, the Babbar Khalsa had no specific grievance with Canada. However, their activists and sympathizers here both conceived and carried out the Air India bombing.  The result was the world’s worst terrorist attack involving aircraft before the fall of 2001, and the worst mass murder in Canadian history.

On another front, espionage is a re-emerging threat to Canadian national security.

Weapons of mass destruction and their delivery systems are highly sought after by states and non-state actors.

For example, one of the greatest impediments to the nuclear programs of countries like Iran and North Korea is the international sanction regime that has sought to limit access to advanced nuclear technology.

Canada is not immune from illegal attempts to get around such sanctions.  The arrest of a suspect in Toronto earlier this year who is accused of trying to procure and export nuclear technology to Iran is testament to this.

Other forms of espionage are economically driven.

Foreign entities use clandestine methods to gain commercial and economic information from both the Canadian private and public sectors.  This can negatively impact the economic well-being of Canadian companies, of individual Canadians and ultimately the Canadian economy.

These risks must be dealt with through education and awareness, due diligence, effective intelligence gathering and analysis, counter-espionage and investigation and enforcement.

No discussion of the threat environment would be complete without some mention of our borders.

Most Canadians think of borders as our land border with the United States and most Canadians perceive the law enforcement challenge associated with the border as criminal activity along and across the border itself.

This would include the smuggling of drugs and other contraband, including alcohol, tobacco and firearms, and illegal migration.

Many of those activities raise national security concerns as does the potential for the trans-border movement of explosives and chemical, biological radiological and nuclear devices.

But threats associated with borders are only partly about the land border itself.

La vraie menace est installée plus profondément, là où les groupes criminels et les terroristes cherchent à exploiter les frontières pour leurs propres fins.

While some may see the border as a first line of defence, it should be viewed as one of the last.   Both the US and Canada agree that the most effective strategy is to stop criminals and terrorists before they reach the border. We must ascertain their intentions and disrupt their operations.

The Canada-US border is a critical component of the overall border security challenge.

Integrated border enforcement teams with participating agencies from both nations have been one of the great success stories of Canada-US collaboration.

And IBETS are not the only current example of effective collaboration.  There is the annual cross-border crime forum, in its twelfth year, which brings together very senior justice and law enforcement leaders, both at the political and officials level, from both countries.

There is the bilateral consultative group on counter-terrorism, as well as Integrated National Security Enforcement Teams – or INSETs.

Our combined investigative and enforcement efforts have borne fruit.  Two examples are the successful joint operations against maritime smuggling, known as Shiprider, and the guilty pleas entered by suspects following a joint investigation of weapons procurement for the LTTE.

Our nations are proud of these and many other collaborative successes.  Nevertheless, Canada does suffer an image problem with some Americans as a safe haven for terrorists.  We must work to overcome that perception.

The new administration in the US Presents us with opportunities to counter such perceptions and to demonstrate a more proportional and comprehensive commitment to not only fighting terrorism but to advancing our shared security interests more broadly.

I note that this year the RCMP’s strategic priority of “Terrorism” will be expanded to “National Security” which is consistent with this broader objective.

More criminal prosecutions for terrorist offences would certainly be one step to enhancing security relations with the United States. 

Drug trafficking is also a threat to national security.

One of the largest drug seizures in Canadian history was made this past summer in Toronto: 117 kilograms of heroin, much of it stamped "Islamic Republic of Afghanistan".

Unless it is directly linked to terrorist fundraising, drug trafficking is generally not seen as a threat to national security.

But drug trafficking can have geopolitical and – ultimately – national security implications:
For example, the Taliban survives, and is able to continue to kill Canadian soldiers, because it is funded by the Afghan drug trade.  I note that in addition to Canadian forces personnel, members of the RCMP and other Canadian police services are also serving in Afghanistan and one of our members was recently injured in a suicide bombing attack in Kabul.

The Afghan drug trade also has regional implications, with networks that extend into Central Asia, Iran and, most importantly, Pakistan.

In Pakistan’s volatile tribal regions, drug trafficking organizations and other types of criminal groups often represent the only form of meaningful authority.

It is an environment in which Al-Qaeda and its affiliates will continue to thrive and a geopolitical situation that will continue to challenge Canada and its allies for some time to come.

Put succinctly, Canadian criminals and Canadian drug users keep Afghan and Pakistani heroin traffickers in business and contribute to the continuation of a serious threat to the West, and to Canada and Canadian interests.

Proving such linkages in court would mean that drug couriers and their associates could face terrorism financing charges.  That would help send a strong message to the world that we are serious about prosecuting accomplices to terror.

Of course, it would also mean that we would have to increase our investigative capacity, including our capacity to conduct and support extraterritorial investigations.

On the subject of capacity, I note that over the last eight years considerable resources have been devoted to enhancing national security in Canada.  The Anti-Terrorism Act was passed in 2001 and in December of that year the Federal Budget devoted $7.7 billion to public safety and anti-terrorism initiatives.

The RCMP benefited from a small portion of that to support the creation of integrated, multi-agency enforcement teams for border integrity and national security, which I mentioned a moment ago.

There have been much more significant investments in Canada’s intelligence capacity, notably investments in the Canadian security intelligence service and the communications security establishment.

Today, we have a much clearer, albeit incomplete, picture of who is a threat, their potential methods, and their financial and international networks.

I pose the question, however: has the focus on enhanced intelligence overshadowed the role of law enforcement in protecting Canada’s national security?

I believe the time has come for law enforcement to be even more active in the realm of national security.

We need greater capacity to put more terrorism cases before the courts and more terrorists in jail.

An opinion piece in The Economist this past summer on torture and counter-terrorism suggested that governments “need to be readier to prosecute terrorists for their crimes.”  It read, “the struggle against terrorism will be long; in a democracy, methods have to be sustainable.  Legal process is not a luxury for good times, but a tool to rob terrorists of legitimacy and show that locking them up is justified.”

The author continues: “that way, those who share the terrorists’ religion or race are less likely to be silent accomplices.  More could act as sources themselves.”

People often speak of a balance between national security and human rights.  That implies we have to choose between the two.  I believe we can have both and that this will be more achievable by a greater reliance on law enforcement.

As former Chief Justice Barak of Israel once said, democracies must fight terrorism with one hand tied behind their back. But he also maintained that, for this very reason, they will prevail in the end, defeating terrorism and preserving freedom.

It must be recognized that in the presence of a credible and imminent threat, our first job is to protect Canadians.  That sometimes means disrupting threats to national security before sufficient evidence can be gathered to justify criminal charges.

However, counter-terrorism measures based exclusively on intelligence that falls short of the evidentiary threshold are fraught with danger and difficulty.

I believe that law enforcement and criminal prosecution will be the new paradigm of national security in democratic nations the world over.

Most democratic nations have realized that infringing on the very rights and freedoms we seek to protect from terrorism is ultimately untenable, it is also not very effective in countering terrorist threats.

As President Obama has recently said “. . . The United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly; we are going to do so effectively; and we are going to do so in a manner that is consistent with our values and our ideals.”

President Obama’s statement is reminiscent of the words of the then prime minister of Canada the Right Honourable Paul Martin in April of 2004 in referring to Canada’s national security policy. “Securing an open society articulates core national security interests and proposes a framework for addressing threats to Canadians.  It does so in a way that fully reflects and supports key Canadian values of democracy, human rights, respect for the rule of law, and pluralism.”

And as the Honourable Irwin Cottler, well-known and well-respected Parliamentarian and civil rights lawyer has said, “there is no greater human right than the right to security”.

I have referred to the misperception by some Americans that Canada is soft on terror.  Let me address another perception.  Terrorism prosecutions are often seen as overly lengthy and complex and there is a perception that terrorism investigations seldom result in criminal convictions.

But we have seven convictions to date, since the anti-terrorism provisions took effect – three by pleas of guilty.

I note there are more cases before the courts and there are more coming where we will recommend criminal charges. As our experience grows, so will the effectiveness and efficiency of national security criminal prosecutions, especially if ways are implemented to speed up and make more efficient the criminal justice system as a whole.

I do not believe that placing greater emphasis on law enforcement and criminal justice would necessitate a sea change in intelligence-gathering and sharing.

What is required is closer collaboration between intelligence agencies and law enforcement so that as operations are planned and intelligence is gathered the requirements for disclosure and the admissibility of evidence are duly considered and, to the extent possible, put in place.

In a 2006 report to the British Parliament from the Joint Committee on Human Rights of the House of Lords and House of Commons, the authors describe criminal prosecution of terrorists as an obligation of government and the preferred recourse to threats of terrorism.

The report acknowledges some of the impediments to the criminal justice approach, including the fact that intelligence information may not always meet the evidentiary standard required for it to be admissible in court.

Voici ce que le comité mixte conclut et recommande dans ce rapport :

“if protection of the public through criminal prosecution is genuinely to be the first objective of counter-terrorism policy, then turning information into evidence should be uppermost in the minds of all those involved in acquiring intelligence at the earliest possible stage in that process. Intelligence should always be gathered with one eye on the problem of how to turn it into admissible evidence before a judge in a criminal court.”

It is generally accepted that intelligence work and counter-terrorism require operational secrecy to be effective. 

However, we will have to come to terms with – and prepare for – increased scrutiny and judicialization of intelligence information, whether that comes by way of the courts, review bodies, commissions of inquiry or by the media and the public.

Cela signifie que la collectivité de la sécurité devra discuter et collaborer encore plus étroitement afin de coordonner les renseignements et d’évaluer les conséquences de leur divulgation.

As has long been the case in law enforcement, we as a security community will have to make tough choices about what we are willing to reveal in open court, what information we must protect and what we will disclose in our attempt to secure convictions.

As we know, decisions on these matters are rarely easy.  There are no absolutes and many complicating and other competing factors.

However, if we do not draw ourselves closer together of our own volition to better manage and utilize intelligence, could supervision come in the form of a national intelligence czar? There is wide speculation that this may be one of the recommendations to arise from the Air India inquiry.  I am personally not convinced that this is necessary.  However, I am very interested in what justice major may say on this matter and more generally, including potentially about protecting certain information, perhaps by rethinking disclosure requirements and making distinctions where appropriate between the different stages of national security investigations.

I would like to say that although there is no doubt room for further improvement and adjustments, I believe the security, intelligence and law enforcement communities are today working together better than ever.

Certainly, challenges persist as we reconcile historical, structural, capacity and authority issues.  But we are at the table together and working through some notably difficult security scenarios to clarify our responsibilities and decision-making processes, and better coordinate our actions.

As you may know, the RCMP and CSIS revised their memorandum of understanding three years ago.  We outlined our respective roles in counter-terrorism investigations and agreed to joint training and other opportunities to promote mutual support in line with our respective mandates.

All of this to say, the national security community has come a long way in cooperation since the Air India tragedy and in intelligence capacity since 9/11.

A prime example of that is our collaboration in preparation for the upcoming Olympic Games in British Columbia.

In closing, let me say that the next chapter in Canada’s unfolding history of national security must be written by law enforcement.

As an effective and democratic deterrent to criminality, as a bridge-builder, and as a focal point to all our efforts in protecting Canadians in a complex threat environment, I believe the time has come to step up law enforcement in closing the loop on national security.

Pour son pouvoir efficace et démocratique de dissuasion en matière de criminalité, pour sa capacité de jeter des ponts et pour son rôle centralisateur de tous les efforts pour protéger la population canadienne dans un contexte où les menaces se font complexes, j’estime que le temps est venu de donner à la collectivité de l’application de la loi les moyens de boucler la boucle sur la sécurité nationale.

Thank you.

William J.S. Elliott