MPO

“In my view, the Service’s June 2002 correspondence with Egyptian authorities,preparation of questions, and travel to Egypt for the purpose of obtaininginformation concerning Mr. Elmaati – all without consultation with DFAIT – likely contributed indirectly to Mr. Elmaati’s mistreatment in Egypt”

   

   

This supplement to the public report of the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin should be read together with the Inquiry’s public report,  released in October 2008. It contains information that could not be disclosed at the time the public report was released because of government concerns that disclosure of the information in the manner then proposed would be injurious to national defence, national security or international relations. As a result of subsequent consultations and discussions, I am now in a position to provide to the public further information relating to my mandate and my findings, without jeopardizing legitimate national security confidentiality concerns.   

I am satisfied that this supplement to my public report conveys to the public further important information relating to my mandate and my findings, without jeopardizing legitimate national security confidentiality concerns.   

1. According to Service reporting, in June 2002 Canadian Security Intelligence Service (CSIS) sought confirmation from Egyptian authorities that Mr. Elmaati was being held in Egyptian custody. This message stated, among other things, that Mr. Elmaati might possibly have been involved in a plan to commit a terrorist act in Canada.   

2. The Inquiry obtained no information to indicate that the Service considered at this time what effect this correspondence might have on Egypt’s position towards Mr. Elmaati.    

3. Following confirmation in August 2002 that Mr. Elmaati was in Egyptian custody, the Service continued to correspond with Egyptian authorities. By late October 2002, it appeared that the Service would be able to travel to Egypt to liaise directly with Egyptian authorities.   

Request to travel to Egypt

4. In early November 2002, a briefing note was sent to the Assistant director of Operations, Mr. Hooper, requesting permission for Service employees to travel to Egypt for the purpose of obtaining information concerning Mr. Elmaati.   

The request highlighted that department of Foreign Affairs and International Trade (dFAIT) officials had already begun meeting with Mr. Elmaati and that the Service had received the results of those consular visits. The request went on to state that the Service’s initiative would not interfere with any ongoing Royal Canadian Mounted police (RCMp) investigation of Mr. Elmaati, and that the Service had its own separate requirements. In supporting that assessment, Mr. Hooper noted that dFAIT, the RCMP, the privy Council Office (pCO) and the Ministry of the Solicitor General should be informed of the Service’s plans.   

The deputy director of Operations agreed that the travel was necessary and granted approval.   

5.Following this approval, the Service prepared a list of questions to which it wished to obtain answers. While the list included questions about Mr. Elmaati’s detention in Syria, there were no questions about his physical treatment there.   

A senior CSIS official stated that the purpose of these questions about Syria was to assist the Service in evaluating what Mr. Elmaati had allegedly told the Syrian authorities. When asked whether questions about Mr. Elmaati’s physical treatment would have been relevant to the Service’s assessment of the reliability of his alleged statement to the Syrian authorities, the official stated that, in hindsight, they would have been relevant, and that he did not know why those questions were not included. The Service also did not include any questions about Mr. Elmaati’s treatment in Egypt. According to this official, the Service was satisfied with the information that dFAIT had provided, and it did not want to raise the issue.   

6.When asked about this initiative, a senior CSIS official stated that the Service was interested in the threat-related information Mr. Elmaati had allegedly provided to Syrian authorities. The same official acknowledged that, despite Mr. Elmaati’s allegations concerning his treatment in Syria, the Service did not seek to obtain information from Egyptian authorities concerning this issue during the visit to Egypt. The official added that, nonetheless, such information could potentially have been obtained during the visit to Egypt. As for Mr. Elmaati’s treatment in Egypt, the same official noted that the Service was satisfied with dFAIT’s reporting, based on its consular visits, that Mr. Elmaati was in good condition.    

7.In his interview, Mr. Hooper was asked whether any consideration was given, during the approval process, to what signal, if any, visiting Egypt to obtain information concerning Mr. Elmaati might send to the Egyptian authorities. Mr. Hooper responded that this was among the factors taken into consideration, and that in particular, the Service considered whether Mr. Elmaati might be mistreated as a consequence of the Service’s visit. However, the Service was of the view that this possibility was not highly likely, and balanced that against thecompelling reasons to try to clarify whether there really was a threat to Canada.   

Mr. Hooper stated that, taking these and other considerations into account, CSIS concluded that it would be appropriate to proceed with the visit.   

Findings in relation to Ahmad Abou-Elmaati

CSIS’ correspondence with Egyptian authorities and travel to Egypt

Did any mistreatment result directly or indirectly from these actions ?

1.In my view, the Service’s June 2002 correspondence with Egyptian authorities,preparation of questions, and travel to Egypt for the purpose of obtaininginformation concerning Mr. Elmaati – all without consultation with dFAIT – likely contributed indirectly to Mr. Elmaati’s mistreatment in Egypt.   

2. While the evidence (not all of which I am in a position to recount here) is not conclusive, it is in my view reasonable to infer on all of the evidence available to me, including that of Mr. Elmaati, that Mr. Elmaati suffered mistreatment of some form as a consequence of the Service’s interaction with Egyptian authorities.   

Were CSIS’ actions deficient in the circumstances ?

3. I find that the Service’s June 2002 interaction with Egyptian authorities (as referred to above) was deficient in the circumstances in two respects.   

4. First, CSIS did not take into account the potential consequences for Mr. Elmaati. The Service did not consider what effect its actions might have on the Egyptian authorities’ position towards Mr. Elmaati and the manner in which he might be treated. The Service eventually considered these factors, but onlyafter the June 2002 contact with Egyptian authorities had already been made.   

5. Several witnesses, from both CSIS and the RCMp, told the Inquiry that it was not the responsibility of intelligence or law enforcement officials to be concerned about the human rights of a Canadian detainee, which were for dFAIT alone to consider. This approach is not, in my opinion, satisfactory. While consular officials may have primary responsibility for monitoring the health and well-being of the Canadian detainee, it must at least be an incidental responsibility of the Service and the RCMP, to consider the potential effect of its actions on the detainee and adjust its actions to minimize those effects. As stated by Justice O’Connor, “Conflicts between the investigative interest of Canada and the need to respect the consular and human rights of Canadians held abroad must be resolved on a case-by-case basis, but I would think that officials would strive to ensure the greatest possible respect for human rights.” No Canadian officials should consider themselves exempt from this responsibility.   

 6. Second, CSIS did not consult with either dFAIT ISI or the Consular Affairs bureau about its visit to Egypt and did not advise dFAIT of the visit until March 2003, well after it had taken place. In my view, the Service should have consulted with dFAIT before traveling to Egypt.   

 7. I am unable to conclude that if dFAIT had been advised of the Service’s actions, the mistreatment that I found likely resulted would have been prevented. However, at the very least, involving dFAIT would have enabled Consular Affairs to take the Service visit to Egypt into account in its efforts to provide consular services.   

 8. I also note that in its list of questions and during its visit to Egypt, the Service did not make any inquiries with Egyptian authorities about Mr. Elmaati’s treatment in either Syria or Egypt, despite knowing that Mr. Elmaati had alleged that he was tortured in Syria. One CSIS witness told the Inquiry that, in hindsight, it would have been relevant to make such inquiries. I agree. This CSIS witness also told the Inquiry that the Service did not inquire about Mr. Elmaati’s treatment in Egypt because, at the time, it was satisfied with the information that dFAIT had provided and it did not want to raise the issue with the Egyptians.   

While I am satisfied by this explanation, I find the apparent compartmentalization of human rights concerns within agencies of the Canadian government tobe troubling.   

9. Justice O’Connor recommended that in all cases where Canadians are detained in other countries in connection with terrorism-related activities(where intrusions on individual liberties and human rights are more frequent), Canadian agencies should adopt a unified approach that includes consultationand collaboration with dFAIT. I agree with this recommendation and would note that, further to Justice O’Connor’s recommendation, CSIS and dFAIT havesince established a Memorandum of understanding on consular cases with a national security dimension to ensure that this consultation and collaborationnow takes place.   

The following is a supplement to an inquiry and  public report which was published this week by The Honourable Frank Iacobucci, q.c. Commissioner looking into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.    

 

 

 

 

   

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