Dispersing the Fog E51 - Dispensary Raids, MCC Through Racial Lens, Guest Garry Clement on R Wedding
Adam Rodgers - Nova Scotia Lawyer Chief defends Arar probe investigators
COBOURG - Police Chief Garry Clement has spoken out in defence of the RCMP in the aftermath of Justice Dennis O’Connor’s inquiry report into the Maher Arar affair.
“I want to assure the public that at no time did the investigators mislead our American counterparts, causing them to take action they would not have done on their own volition,” states Chief Clement, who, before coming to Cobourg, was an inspector in the RCMP’s criminal operations branch, which investigated Mr. Arar.
Need I say Pure D Bullshit???
Garry Clement explained last night to his pal Palango why our Feds fed the info to the FBI
The Royal Canadian Mounted Police is no longer fit for purpose
Reflecting on his career in the RCMP from 1973 to 2003, Garry Clement recounts his childhood in rural Ontario; his RCMP training in Regina; his drug-bust days based in British Columbia, Montreal, and Toronto; his work battling the Chinese Communist Party’s infiltration of Canada; his role in the Parliament Hill bus hijacking; his involvement in the post–9/11 Maher Arar inquiry; his impact on the RCMP’s Proceeds of Crime program and on anti–money laundering in Canada and abroad; and his reasons for leaving the RCMP. Under Cover provides a gripping and vulnerable inside look into the corruption of politics and policing in Canada.
Report of the Events Relating to Maher Arar
Factual Background volume I
Introduction
This Factual Background summarizes the evidence presented to the Factual Inquiry into the actions of Canadian officials in relation to Maher Arar. The information it contains was taken from the testimony of over 70 government officials, and some 6,500 government documents that were entered as exhibits.
The Factual Background is organized chronologically around the events before, during and after Mr. Arar’s detention in New York and his subsequent removal and imprisonment in Syria. It also explains the organizational and policy contexts of the investigations in which he was considered a person of interest, and the contexts of Canadian officials’ actions in response to his detention and mistreatment.
There are two versions of this Report. One, which may not be disclosed publicly, is a summary of all of the evidence, including that which is subject to national security confidentiality. The public version that you are reading does not include those parts of the evidence that, in the Commissioner’s opinion, may not be disclosed publicly for reasons of national security confidentiality.
A good deal of evidence in the Inquiry was heard in closed, or in camera, hearings, but a significant amount of this in camera evidence can be discussed publicly without compromising national security confidentiality.1 For that reason, this Report contains a more extensive summary of the evidence than might have been the case in a public inquiry in which all of the hearings were open
In the footnotes, testimony that was heard in camera is indicated with an [IC] prefix, while public testimony is indicated with a [P]. In some cases, the name of the person who testified in camera has been deleted for reasons of national security confidentiality. In camera exhibits are indicated with a C prefix before the identifying number (e.g. C-134), and public exhibits with a P (P-134). Transcripts of public testimony can be accessed on the Arar Commission website, www.ararcommission.ca
Events Prior to Mr. Arar’s Detention in New York
1. CANADA’S RESPONSE TO 9/11
1.1 PROJECT SHOCK
The RCMP’s interest in Maher Arar originated in investigative projects that began in the aftermath of the terrorist attacks in New York, Washington and Pennsylvania on September 11, 2001. The immediate RCMP response to these events was an effort by Headquarters to coordinate all of the tips received concerning the terrorist attacks. Called Project Shock, this effort was coordinated by the National Security Intelligence Branch (NSIB) at RCMP Headquarters. All tips related to the Ottawa area were investigated by the National Security Investigations Section (NSIS) of the RCMP’s “A” Division in Ottawa.1
Before 9/11, Ottawa’s “A” Division had a large number of national security protective responsibilities, including protecting foreign embassies and certain designated persons. These responsibilities increased significantly after 9/11, putting a strain on “A” Division’s resources as it responded to the many tips from Project Shock.
Project Shock had three goals, which were first introduced at a video conference held on September 25 or 26, 2001. The purpose of the meeting was to advise all officers working in the Integrated Proceeds of Crime (IPOC) units across Canada that RCMP Headquarters was establishing a new entity, the Financial Intelligence Task Force (later known as the Financial Intelligence Branch), to coordinate research on the financial transactions of suspected terrorist organizations. In order of priority, the goals of the Task Force were to be prevention, intelligence and prosecution. This marked the first time that IPOC officers had been directed to conduct their investigations with prevention, rather than prosecution, as the primary goal.
At the same meeting, participants agreed that these three goals would also apply to Project Shock. The Assistant Criminal Operations (CROPS) Officer for “A” Division, Inspector Garry Clement, testified it was clear to him that these instructions had the approval of RCMP Headquarters, up to and including Commissioner Giuliano Zaccardelli.
1.2 COMMUNICATIONS FROM THE UNITED STATES
On September 22, 2001, members of the RCMP, CSIS, the FBI and other law enforcement agencies attended an all-agency meeting at CSIS Headquarters. The purpose of the meeting was to promote a sense of cooperation among the agencies with primary responsibility for anti-terrorism activities in Canada and the United States. Shortly thereafter, the Canadian agencies were asked to investigate certain Canadian individuals who allegedly had ties to persons whom the Americans suspected to be terrorists. The agencies were to provide further information about these individuals, and if possible, detain them for interviews. The RCMP did not act on the FBI’s request, as it was not yet prepared to detain and interview the individuals named.
1.3 CSIS TRANSFER OF INVESTIGATIONS TO THE RCMP
For some months prior to September 11, 2001, the CSIS office in Toronto had been investigating the activities of a group of targets10 active in the area who CSIS believed were connected to al-Qaeda. Following 9/11, Western intelligence services were preoccupied with the prospect of a second wave of attacks occurring in the United States, and CSIS spent a great deal of time developing intelligence about this potential next wave. Among the Toronto targets were individuals CSIS believed could have the capability and intent of facilitating an act of terrorism, if not actually executing it. It was in this climate that CSIS put the targets under intensive scrutiny. By September 22, 2001, CSIS officials in Toronto were exhausted and reaching the breaking point. They had been working 12-hour days. Jack Hooper, who was then Director General of the Toronto office, decided to seek assistance from law enforcement agencies. On September 22, 2001 — the same day as the all-agency meeting — Mr. Hooper chaired a meeting at the CSIS Toronto office involving officials from CSIS, the RCMP, the Ontario Provincial Police (OPP), the Toronto Police Service
FORMATION OF PROJECT A-O CANADA
2.1 MANDATE
In early October 2001, RCMP “O” Division asked “A” Division for assistance in investigating the activities of Abdullah Almalki, an Ottawa resident who was believed to be connected to al-Qaeda. In response, “A” Division created Project A-O Canada. In a relatively short time, Project A-O Canada’s role evolved from providing assistance to Project O Canada, to conducting its own investigations. Initially, these investigations focused on Abdullah Almalki, and then on others — including Mr. Arar — who surfaced in the course of its investigations.
Inspector Cabana was appointed Officer in Charge of Project A-O Canada at its inception in early October 2001, and held that position until February 4, 2003. Before his appointment, Inspector Cabana was the Interim Officer in Charge of the IPOC unit at “A” Division. His background in policing focused on drug enforcement, biker enforcement, and the proceeds of crime. During his career with the RCMP, Inspector Cabana received training in the proceeds of crime, criminal intelligence analysis, investigative techniques, and statement analysis. He had not previously been involved in a national security investigation.As part of the integrated policing approach, officers from the Ontario Provincial Police (OPP), Ottawa Police Service (OPS), Sûreté du Québec, Gatineau Police Service and Hull Police Service were added to the team.
Two officers from outside the RCMP were assigned to serve as assistant managers. A member of the OPS, Staff Sergeant Patrick Callaghan had worked with the RCMP in criminal investigations for nine years. He had an aptitude for major crime investigations, as well as a good grasp of many of the RCMP policy issues that applied to major investigations. Recruited from the OPP, Staff Sergeant Kevin Corcoran was also experienced in major criminal investigations. Inspector Cabana had met Staff Sergeant Corcoran while working on another RCMP project, and was impressed by his understanding of major crime and his solid reputation in policing. Although Staff Sergeant Corcoran was not familiar with RCMP policies, procedures and protocols, including those related to national security investigations, Inspectors Cabana and Clement felt that there would be sufficient oversight in this area.
Inspector Clement, who had worked with Inspector Cabana to assemble the Project A-O Canada team, was asked whether the team had sufficient national security training to carry out the investigation as it was understood in October 2001. He acknowledged that members of the team, including its managers, had no experience in investigating terrorism, with the exception of Corporal Buffam. However, Inspector Clement believed that Project A-O Canada would ultimately be conducting criminal investigations, and that experienced criminal investigators, like those assigned to Project A-O Canada, had the necessary skills. While it would have been preferable to use people with prior knowledge of terrorism investigations, there were few such people available. The same was true for Project O Canada. Inspector Clement knew each investigator selected and was satisfied that it was the best team available at that time
Project A-O Canada reported to Criminal Operations (CROPS) at “A” Division. As part of the chain of command to CROPS, Project A-O Canada assistant managers reported to Inspector Cabana, who in turn reported to the Assistant CROPS Officer, Inspector Clement. On any given day, Inspector Cabana and Inspector Clement were in frequent contact with each other.76 Inspector Clement informed the CROPS Officer, Chief Superintendent Couture, about the investigation’s progress. In addition to briefings by Inspector Clement, Chief Superintendent Couture was also provided with Project A-O Canada’s situation reports, which were prepared daily and detailed the progress and challenges encountered during the investigation. From time to time, he was also given Project A-O Canada briefing notes.
3.1.3.2
The Need to Cooperate with Other Agencies The Project A-O Canada team was instructed to use every tool possible, within the bounds of the law, to ensure that 9/11 was not repeated.158 This included sharing information with other domestic and foreign agencies. To Project A-O Canada, outside cooperation was important for two reasons.
First, members of the Project A-O Canada team lacked in-depth knowledge of, and experience in, anti-terrorism investigations. Sharing information with other agencies helped them understand the type of threat they were facing. As well, without the cooperation of other agencies, it would have been difficult to assess whether Canadian intelligence information would be useful to American investigations, or to those being conducted in Europe, Africa or Asia. According to the Commanding Officer of “A” Division, the only way the RCMP was going to be successful in the fight against terrorism was to share information.
Team members recognized that a good deal of the information on their target subjects had been provided by U.S. authorities. Project A-O Canada did not have the resources to gather all of the information it needed on its own, nor did it have direct access to information on the targets’ backgrounds, except through other agencies.
The second strong incentive for cooperation, according to RCMP witnesses, was the potential for loss of life if information was withheld. As Inspector Clement explained, law enforcement officers were dealing with “real-time” events occurring against the backdrop of an imminent terrorist attack. “One tidbit of information” could be the missing piece of the puzzle in another agency’s database. “That [information] may have prevented an explosion. We can all speculate.” Assistant Commissioner Hovey agreed that no one wanted to withhold information that might prevent a catastrophe.
According to Inspector Cabana, the Project A-O Canada investigation was more analogous to dealing with an international crisis, than a national one. He noted that agencies were coming to the table and information was being shared to an extent unprecedented in his previous 20 years as a police officer; after 9/11, there was no more territorial squabbling, he added.
3.1.4.4 RCMP “A” Division — Commanding Officer/CROPS
Three senior officers from “A” Division testified about their understanding of how Project A-O Canada was to share information with the other participating agencies. In order of rank, Assistant Commissioner Dawson Hovey was the Commanding Officer of “A” Division, Chief Superintendent Antoine Couture was the Officer in Charge of CROPS, and Inspector Garry Clement was the Assistant CROPS Officer.
Although Assistant Commissioner Hovey was not closely involved in decisions about sharing information among these agencies, he recognized that the issue assumed a higher priority following 9/11. Like Assistant Commissioner Proulx, however, he understood that information sharing would continue in accordance with RCMP policies. He did not agree that the RCMP had discretion to tailor its policies to a particular situation.
Over time, Assistant Commissioner Hovey became aware that Project A-O Canada was sharing information with its American colleagues. Although he supported the approach in general, he was not aware of the details of the arrangement. He testified that, as Commanding Officer, he was ultimately accountable for the investigations conducted by “A” Division. However, it was the CROPS Officer who was responsible for providing day-to-day direction on files.
Assistant Commissioner Hovey believed that information was being shared with American agencies in accordance with RCMP policies, including those concerning caveats. Moreover, he was not aware of any issues about the use of caveats or information sharing more generally during his tenure as Commanding Officer.
As the Officer in Charge of CROPS at “A” Division until January 2003, Chief Superintendent Couture was given general direction from RCMP Headquarters on how information was to be shared. He understood that Project A-O Canada investigators were to share information in a timely manner because of the imminent threat of another terrorist attack — information was to flow as freely as possible among the participating agencies.
Chief Superintendent Couture was not able to provide details of communications from RCMP Headquarters, other than to say that the information-sharing message was delivered once or twice by video conference or telephone conference.
Three points about Chief Superintendent Couture’s testimony are important to note. First, he would neither confirm nor deny that existing RCMP policies for exchanging information with domestic or foreign agencies were no longer applicable on the direction of RCMP Headquarters. He would say only that members of “A” Division were encouraged to communicate information as freely as possible to ensure an efficient response to the imminent threat of another attack.
Second, Chief Superintendent Couture stated it was his general understanding that Project A-O Canada could share information without using caveats, as the use of caveats and the third-party rule would not be enforced in the fight against terrorism. He made specific reference to a video conference on December 6, 2001, in which Assistant Commissioner Proulx indicated that caveats were down. Although Chief Superintendent Couture made a note of this meeting,206 Assistant Commissioner Proulx did not recall making the comment.
Finally, Chief Superintendent Couture did not believe RCMP Headquarters had directed that information obtained from another party could be shared without the authority of the originating party. He understood that each party would pass its own information directly to the other parties.
Chief Superintendent Couture testified that post-9/11 information sharing by Project A-O Canada was unique. Never before had he seen information shared fully with the other agencies, but neither had he been in a situation where the stakes were as high.
According to Chief Superintendent Couture, an unstructured approach was taken in communicating the parameters for information sharing to Project A-O Canada. This approach was similar to that used by RCMP Headquarters to communicate instructions to him. The arrangement was never written down in a clear set of rules for investigators, but was communicated verbally to team members. It was also communicated implicitly every time “A” Division’s senior management sanctioned Project A-O Canada’s actions. For instance, Chief Superintendent Couture implicitly sanctioned the team’s actions by receiving and reading Project A-O Canada’s situation reports.
Chief Superintendent Couture’s general directions on information sharing were to ensure the team got the job done and shared the information necessary to prevent another terrorist attack. These directions were communicated in conversations with the Assistant CROPS Officer. Chief Superintendent Couture did not speak directly to investigators about information sharing. In general, he left officers within “A” Division to control the day-to-day management of files.
Following a meeting, Chief Superintendent Couture would generally meet to debrief the officers in charge of the various units at “A” Division. Based on this, he believed he passed on Assistant Commissioner Proulx’s statement that caveats were down, which was made at the December 6, 2001 meeting. Chief Superintendent Couture understood this direction to mean that Project A-O Canada was not to restrict the flow of information, and should ensure that information reached its destination quickly in order to prevent another terrorist attack.
Chief Superintendent Couture was also questioned about testimony by Project A-O Canada witnesses that they were directed to share information freely for intelligence purposes, but that permission was required, and very likely an MLAT (Mutual Legal Assistance Treaty) application, if information was to be used in a court proceeding. He confirmed that a foreign agency would require an MLAT to use RCMP information in a legal proceeding.
Chief Superintendent Couture believed that RCMP Headquarters was aware of the working relationship between the U.S. agencies and Project A-O Canada, including how information was being shared. Further, he believed Headquarters knew of this relationship from the outset of the project.
Inspector Clement, the Assistant CROPS Officer at “A” Division, communicated the information-sharing arrangement to Project A-O Canada. According to him, he gave very clear direction as soon as the investigation began that there would be an open-book arrangement with Project A-O Canada’s partners. Apparently, Inspector Clement was the first one to use the term “open-book investigation.” Given the potential threat, Inspector Clement believed that the investigation could not progress unless all of the partners were well briefed on a day-to-day basis.
Inspector Clement also stressed the open-book approach with each of the partner agencies, emphasizing the need for an open and frank sharing of information. He believed his directive was supported up the chain of command in “A” Division, from the CROPS Officer, Chief Superintendent Couture, to the Commanding Officer, Assistant Commissioner Hovey, as well as at RCMP Headquarters.
Inspector Clement’s view of an open-book investigation included two elements of note. First, he believed the arrangement extended to sharing information without taking into account RCMP policies about the use of caveats and the third-party rule. However, he explained this was not the original intent when the open-book directive was conceived. At the time, the arrangement focused on information shared verbally among the partner agencies at regular meetings, rather than on physically sharing documents. All of the agencies openly discussed information contained in the documents. Eventually, when Project A-O Canada investigators became aware that information had been shared verbally, they began to pass it in documentary form. In doing so, Inspector Clement testified, they were not passing along new information, but information that was already known.
Second, Inspector Clement testified that, in time, it became acceptable for Project A-O Canada to share information received from another partner agency, given that all relevant information was being shared verbally among the partners.
Inspector Clement further believed that all partner agencies understood that information could be shared without the formal application of caveats and the third-party rule. According to him, other partner agencies tacitly approved this approach because they were present at meetings where it was a topic of discussion. Inspector Clement was adamant that, regardless of other deviations from established RCMP policies, there was an implicit understanding among the partner agencies that the third-party rule applied if information was to be used in a legal proceeding. This was in line with legal requirements applicable to all criminal investigations.
Inspector Clement’s rationale for promoting the open-book investigation was based on two main factors. First, his experience managing major case files told him that information could not be withheld from a partner agency if an investigation was to be successful. An open-book investigation promoted cooperation and trust. Second, the imminent threat of another terrorist attack demanded that partner agencies foster an environment of openness so that information could be shared quickly and efficiently. As Inspector Clement stated: “Circumstances sometimes require you to go a step further than you normally would in a routine-type investigation.”
The parameters of the open-book concept were not explicitly laid out for Project A-O Canada investigators. However, Inspector Clement testified that most members of the team had worked directly with him before and would have been familiar with how he managed a case. In this instance, he felt the team was very clear on what he intended. The overriding message was that the partners were to share everything openly, and that nothing was to be held back if it was potentially relevant to any one of them.
Inspector Clement’s interpretation of the information-sharing arrangement was never put into writing. Neither could he direct the Commission to notes of a meeting setting out the implicit understanding that partner agencies needed permission to use another agency’s information. According to Inspector Clement, there was never any discussion of drafting a Memorandum of Understanding (MOU) or other document to record the specifics of the information-sharing arrangement.
Inspector Clement was aware that even though senior officers understood the implied arrangement about the third-party rule, this was not necessarily the case at the grassroots level of an investigation. However, he took into account that the FBI was a reputable agency with policies similar to the RCMP, and that, at any given time, the RCMP had numerous investigations involving its U.S. counterparts. As a result, the two agencies had developed a common understanding of what rules must be followed.
When Project A-O Canada began, Inspector Clement informed Inspector Cabana that it was to be conducted as an open-book investigation. According to Inspector Cabana, Inspector Clement gave him these instructions on October 5, 2001, as part of their discussion about Project A-O Canada taking over the investigation of Mr. Almalki. Inspector Clement told him that Project A-O Canada would be working with the American agencies, and because of the extraordinary circumstances of 9/11, they had all agreed to share information freely.
From Inspector Cabana’s understanding, an open-book investigation meant that caveats normally attached to documents sent to external agencies were down. Project A-O Canada’s primary mandate was to prevent any further attacks. To do so effectively meant ensuring information flowed freely among all the agencies.232 As Inspector Cabana observed: “[T]he way it was described to us, is you are working hand- in-hand with these [agencies] now, and when you are working in partnership with agencies, caveats don’t apply.
Inspector Cabana understood that they were no longer required to follow the steps laid out in the RCMP’s existing policy “with respect to the use of caveats [and] with respect to the requirement to determine the purpose of the information to be shared.” Instead, information was to be shared immediately, without delays.
Inspector Cabana believed that there was an agreement in place among the agencies for that purpose. Inspector Cabana did not interpret the open-book arrangement to mean that RCMP policies relating to caveats had necessarily been suspended. He testified that RCMP policies were devised as a guideline on which officers built their investigations, but were not developed with events like 9/11 in mind. He was aware that RCMP policy included certain circumstances where information could be exchanged without a caveat — for example, if there was an MOU, or something similar, in place. Since obtaining an MOU would take too much time under the circumstances, the information-sharing arrangement was put in place. (The applicable RCMP policy referred to a “written” MOU; Inspector Cabana never saw a written agreement.)
Neither did Inspector Cabana interpret the arrangement to mean that there were absolutely no controls over RCMP information once it had been shared with partner agencies. Everyone understood that information was being shared for intelligence purposes. If the information was to be used in a legal proceeding, the consent of the originating agency was required, and possibly an MLAT application. This was an established rule within the law enforcement community, and it did not change on account of 9/11. Inspector Cabana also believed that if a partner agency wanted to share the information with a non-partner agency, permission from the originating agency was required.
According to Inspector Cabana, both the CROPS Officer and Assistant CROPS Officer for “A” Division attended a briefing on October 15, 2001. When instructions were given for sharing information, they did not object; nor did they suggest that Inspector Cabana had misunderstood the original instructions.
Staff Sergeants Callaghan and Corcoran testified that they did not recall receiving instructions on the information-sharing arrangement at the October meeting. Neither could they recall the exact date when the information-sharing arrangement was communicated to them. According to Staff Sergeants Callaghan and Corcoran, the arrangement evolved as the project progressed, and as the American agencies and CSIS became more involved in the investigation. As discussed later in this Report, the officers eventually came to understand that information could be shared without attaching explicit caveats. Caveats were implied; if the requesting party wanted to use the information other than for intelligence purposes, approval from the RCMP was required. The officers also understood that because of the open-book arrangement between the participating agencies, the RCMP could pass along information received from another partner agency.
Staff Sergeant Callaghan’s interpretation of what could be shared came from the Assistant CROPS Officer, Inspector Clement. He recalled Inspector Clement using the phrase “open-book investigation” on a number of occasions, and explaining that Project A-O Canada could share information with all of its partners. According to Staff Sergeant Callaghan, “...[t]here was no ifs, ands or buts about it, or grey area, as to what we were going to share.”
Staff Sergeant Corcoran went even further, testifying that “A” Division’s Commanding Officer, Assistant Commissioner Dawson Hovey, the CROPS Officers, Chief Superintendent Couture and Inspector Clement, and Project A-O Canada’s Officer in Charge, Inspector Cabana, communicated the message to share information openly, right from the beginning. According to Staff Sergeant Corcoran, the instructions for sharing information with various agencies did not appear to be optional — “We were told to share.”
He also testified that there was no discussion of caveats at the start of the investigation, and it only became an issue later on, in the summer of 2002. By November or December 2001, the hard-and-fast rule was that any information the RCMP gave to an outside agency was for intelligence purposes. If an external agency wanted to use RCMP information for another purpose, it would have to obtain the RCMP’s permission.
Staff Sergeant Corcoran testified that he was never criticized or disciplined for sharing information in accordance with his understanding of the information-sharing arrangement — specifically, sharing information without caveats. On the contrary, Project A-O Canada was applauded by other agencies for its efforts. “It was clear to everyone that times had changed. The situation was grave. We could not risk not sharing information.”
Project A-O Canada managers testified there was no single document that captured the information-sharing arrangement among the partner agencies, including such phrases as “open-book investigation,” “free-flow-of-information” and “all caveats are down.” Instead, it was more generally included in various officers’ meeting notes and in Project A-O Canada correspondence.
The instructions to Project A-O Canada about sharing information did not have a fixed end date. As Inspector Cabana testified, the original instructions he received from Inspector Clement were not time-limited, nor were they countermanded before he left the project in February 2003. It was his understanding that this arrangement would be in place for the duration of the Project.
The Role of Department of Justice Lawyers
At least one lawyer — and as many as three — were assigned to Project A-O Canada from its inception.
In early October 2001, the Assistant CROPS Officer, Inspector Clement, requested that the Department of Justice (DOJ) assign counsel to the Project. Because the department was not in a position to provide the Project with its own counsel at the time, it assigned the lawyers at “A” Division’s IPOC unit to work at Project A-O Canada as well.
With offices on the same floor, DOJ lawyers and the Project A-O Canada team maintained open lines of communication. Many team members, including the Officer in Charge, had a background in IPOC and a history of dealing with these same lawyers. Inspector Cabana testified that he had daily interaction with legal counsel on a number of different issues, including Project A-O Canada.
Legal counsel played an integral role in developing files for IPOC, and a similar arrangement was adopted for Project A-O Canada files. As a general rule, Project A-O Canada personnel sought legal advice for all investigative steps. In addition, counsel for Project A-O Canada regularly attended the investigators’ meetings and joint management team meetings where information sharing was discussed.250
Inspector Cabana stated he was not aware that his investigators specifically discussed the issue of caveats with Project A-O Canada’s lawyers, as the lawyers already knew of the arrangement. He testified that Project A-O Canada’s lawyers would have been aware of RCMP policies because of their experience with IPOC, which had been conducting international investigations for as long as the lawyers had been there. He concluded that the lawyers were well versed in RCMP policy, and did not recall them suggesting that the team was contravening policy. According to Inspector Cabana, the legal advice he received about the Project was consistent with his original instructions, particularly with regard to RCMP policy.
Inspector Cabana did not believe that any of his investigators consulted Project A-O Canada lawyers about whether the team could go against RCMP policy, nor did he feel there was any need to do so, as the team’s directions came from management
3.10 THE ATTEMPT TO INTERVIEW MR. ARAR
The following section describes in some detail the RCMP’s attempt to interview Mr. Arar and, in the end, why the interview did not occur. This account is included because Project A-O Canada officers stated repeatedly in the month that followed — including in documents provided to American authorities — that Mr. Arar refused to be interviewed by the RCMP. In fact, this was not the case.
Mr. Arar was one of seven people who were to be interviewed on January 22, 2002. As mentioned, the goal of the interview was to determine his role in the larger investigation, particularly in relation to Mr. Almalki. From the RCMP’s perspective, Mr. Arar was to be interviewed as a witness, not as a suspect.
Prior to the searches, Corporal Lemay prepared questions for Mr. Arar’s interview. It appears these were “core questions” that would be asked of all interviewees, with no questions specific to Mr. Arar. For instance, there were no plans to ask Mr. Arar about his meeting with Mr. Almalki at Mango’s Café. Corporal Buffam was assigned to interview Mr. Arar, with the assistance of Corporal McKinnon of the RCMP’s “A” Division National Security Investigations Section (NSIS).
On January 22, 2002, at 7:30 a.m., Corporals Buffam and McKinnon approached the Arar residence. When Mr. Arar’s wife, Monia Mazigh, answered the door, they identified themselves and asked to speak to Mr. Arar. Dr. Mazigh advised them that he was not at home. When asked where he was, she initially replied that he was “abroad.” When pressed again, she stated that he was “overseas,” and finally, in response to a further question, that he was in Tunisia. She told the officials that he had been gone for two to three weeks and would be back in “maybe three days.” Corporal Buffam gave her his business card and told her it was important for Mr. Arar to contact him as soon as possible.Corporal Buffam recalls the whole exchange taking about three to four minutes.
Apparently, Dr. Mazigh did not express any concern about having to deal with a police officer at 7:30 in the morning. At the time, Corporal Buffam was not aware of the Muslim community’s concerns about the police, in particular, about police officers approaching a Muslim home. Nor was he aware of the protocols and customs that should be followed when a man approaches a Muslim woman.
After speaking to Dr. Mazigh, Corporal Buffam left to help execute the remaining search warrants. At approximately 3:40 p.m. that day, he was informed that Mr. Arar had contacted the office asking why Corporal Buffam had been to his home. Mr. Arar was quite perturbed and had left a phone number where he could be reached in Tunisia. However, when Corporal Buffam called Mr. Arar later that day, at about eight or nine in the evening, there was no answer, which he attributed to the time difference. Mr. Arar did not call Corporal Buffam again.
On January 24, 2002, Constable Lang contacted Canada Customs and confirmed that Mr. Arar’s name was still in its databanks.432 Project A-O Canada officials wanted to ensure that they would be informed of Mr. Arar’s return, and that Customs officials would subject him to another secondary examination. Although Corporal Lang testified that this was not a new lookout request, a new lookout on Mr. Arar was created at this time.
When Mr. Arar entered Canada at the Montreal airport on either January 24 or 25, 2002, he was not subjected to a secondary examination, nor did Customs officials notify Project A-O Canada of his return. Apparently, this was the result of human error.
On Friday, January 25, 2002, at 10:00 a.m., Corporal Buffam called Mr. Arar’s residence to find out whether he had contacted his wife, and to ask when he was scheduled to return from Tunisia. Mr. Arar answered the phone, stating that he had attempted to contact the RCMP from Tunisia. He was somewhat annoyed the RCMP had gone to his home without prior notice while he was away, and disturbed his pregnant wife. Corporal Buffam explained that the RCMP did not know he was away at the time, and described his brief conversation with Dr. Mazigh.
Corporal Buffam requested that Mr. Arar go to RCMP offices in Vanier that day to be interviewed. When Mr. Arar asked why, and inquired how the RCMP had obtained his name, Corporal Buffam explained that they did not discuss ongoing investigations over the telephone. He asked to speak to Mr. Arar in person to clarify some issues that had surfaced as a result of their inquiries, to which Mr. Arar replied that he was tired from travelling, and had not seen his family in several weeks. Although Corporal Buffam urged him to visit RCMP offices that day, Mr. Arar insisted he was too tired, but said he would perhaps go on the coming Monday. Corporal Buffam advised Mr. Arar to rest, visit with his family, and contact him the following day, Saturday, January 26, for a proposed interview at 3:00 p.m. Apparently, Mr. Arar consented to be interviewed at the time suggested.
Sometime after the conversation with Corporal Buffam, on January 25, Mr. Arar attempted to contact Ottawa criminal defence lawyer, Michael Edelson. Although Mr. Edelson tried to return Mr. Arar’s call the next day, Saturday, January 26, at 10:30 a.m., he was unsuccessful. However, his office made an appointment for Mr. Arar to meet with Mr. Edelson on January 30. As a result, Mr. Arar’s interview with the RCMP did not take place on January 26, as scheduled with Corporal Buffam.
Mr. Arar first met with Mr. Edelson on January 30, 2002 for about 45 minutes, at which time he gave Mr. Edelson his personal information, and described how he had been stopped at Canadian Customs in December 2001, and his laptop seized. He also told Mr. Edelson about his trip to Tunisia, and the RCMP’s attempt to contact him for an interview.
In addition, Mr. Arar raised an issue that Mr. Edelson assumed had been posed by national security personnel: namely, whether Mr. Arar knew Safa Almalki and Abdullah Almalki. Mr. Arar indicated that he knew Safa, but was “not a direct friend” of Abdullah Almalki. He said he knew Abdullah Almalki’s brother, Nazih, as well, and that he saw Safa and Nazih at Friday evening prayers.
According to Mr. Arar, on the previous Friday at the mosque, Safa Almalki had told him the RCMP had asked about Mr. Arar and whether he had extreme views about the United States. Mr. Edelson testified that he vividly recalled Mr. Arar putting his hands in the air, sort of shaking his head, and saying, “I admire the Americans.” He did not understand why he was being questioned about his views concerning the United States.
Mr. Edelson’s overall impression was that Mr. Arar was “totally forthcoming” during the interview.
On January 30, 2002, Mr. Edelson contacted Ann Alder, counsel to Project A-O Canada, to discuss a possible interview with Mr. Arar. Mr. Edelson indicated that Mr. Arar would meet with the police, and that this had always been Mr. Arar’s intent. It may have been at this time that Ms. Alder told Mr. Edelson the RCMP wanted a videotaped statement made under oath. However, Ms. Alder could not and would not indicate whether Mr. Arar would be interviewed as a witness or a suspect, nor would she reveal whether the interview related to a traditional criminal investigation, an intelligence investigation, an anti-terrorist investigation, or something else entirely.
As a criminal lawyer, Mr. Edelson would normally have advised his client not to give a statement, but Mr. Arar had indicated he had no objection to speaking to the RCMP. As Mr. Edelson did not know what allegations, if any, had been made against Mr. Arar, or what the RCMP’s objectives were, he suggested that certain conditions be attached to the interview. He believed that Mr. Arar’s life might be in jeopardy, even if the RCMP only wanted a statement that could be used in court against someone else. In fact, the RCMP might actually regard Mr. Arar as a suspect, meaning that the information could be used against him (a situation Mr. Edelson said would typically lead defence counsel to advise Mr. Arar not to speak at all). Mr. Edelson therefore imposed conditions that would address both of these concerns.
The conditions were as follows:
1) Mr. Edelson would not consent to a videotaped, sworn statement because he wanted to avoid a situation where the interview would later be admissible as evidence in court — referred to colloquially in criminal practice as a “KGB.” statement, after a Canadian case involving the admissibility of outof-court statements.
2) The statement could be audiotaped. 3) A transcript could be prepared, if Mr. Arar was given an opportunity to review the transcript to correct anything erroneous or mistaken.
4) The statement would not be “under caution,” i.e., the typical police caution indicating that if the interviewee waived the right to remain silent, then anything said could be taken down and used in evidence.
5) Mr. Edelson would be present throughout the interview.
6) If Mr. Edelson objected, certain questions would not be answered.449 7) Mr. Arar and his counsel would be free to leave at any time.
Mr. Edelson testified that, in his experience, these conditions were appropriate, given the little information provided by the officers and their counsel about the nature of the investigation and whether Mr. Arar was regarded as a witness or a suspect. He said he had dictated similar conditions in dozens of other criminal investigations where the client was willing to speak to the police. In Mr. Edelson’s opinion, the conditions did not render the interview useless, as the RCMP would still be able to use the information for intelligence purposes.
Inspector Cabana did not agree with Mr. Edelson’s view. In fact, he felt the conditions were exceptionally stringent, more so than he had seen in his over 20 years’ experience as an investigator. It was not particularly surprising that the information from the interview could not be used in a future prosecution against Mr. Arar, but stipulating that it “could not be used in relation to any prosecution against anybody, anywhere, basically rendered the interview, for all intents and purposes, useless.” As a result, Inspector Cabana and Staff Sergeants Corcoran and Callaghan, in conjunction with Ann Alder from the Department of Justice, decided not to proceed with Mr. Arar’s interview.
The very fact that Mr. Arar had retained Mr. Edelson raised suspicions among Project A-O Canada investigators, as Mr. Edelson also represented other targeted individuals and persons of interest. In Inspector Cabana’s view, it showed that they were part of a group, as it was common for one lawyer to represent an entire criminal organization. At the time, Project A-O Canada officers were not aware that local imams had recommended that Muslims who were approached by the police retain one of three lawyers, one of whom was Mr. Edelson.
4.1.1 The All-Agency Meeting on January 31, 2002
Following the searches of January 22, 2002, Project A-O Canada had an enormous amount of material to process. The fruits of the searches included 26 computer hard drives, almost 100 CDs and diskettes, approximately 20,000 pages of documents, about 40 videotapes and two boxes of shredded documents.457 Staff Sergeant Corcoran testified that Project A-O Canada officials were surprised at the amount of information obtained from the searches.458 Synthesis and analysis of the seized materials began almost immediately. On January 28, 2002, the RCMP began reading the hard drives and CDs.459 Shortly after, on January 30, the preliminary analysis of the electronic information and documents uncovered information that Project A-O Canada officials felt linked Mr. Almalki with terrorist groups. These initial efforts notwithstanding, Project A-O Canada was still faced with the monumental task of reviewing all of the information from the searches, and following up on any investigative leads as quickly as possible. Because of the resources required, it was decided to share all of the seized information with CSIS, the FBI and the other partner agencies, and to enlist their help with the analysis. 460 Inspector Cabana also felt it would be useful to share the information more broadly, as similar investigations were underway in other parts of the world.461 Accordingly, Project A-O Canada scheduled an all-agency meeting for January 31, 2002.462 Two days before, Inspector Cabana had sent an internal message to Chief Superintendent Couture at RCMP Criminal Operations (CROPS), recommending that all available information be shared with CSIS and its American counterparts. A list of the seized materials was attached.463 The January 31, 2002 all-agency meeting was attended by representatives of Project A-O Canada, CSIS, the FBI, RCMP Headquarters (National Security), Criminal Operations (CROPS), Ontario Provincial Police (OPP), Ottawa Police Service (OPS), Gatineau Police Force, Sûreté du Québec, Montreal Police Force, RCMP “C” Division, and other partner agencies.464 Project “O” Canada was not represented at the meeting as that project was already finished.465 The purpose of the meeting was to update all outside agencies on the investigation’s progress, and to request their assistance in providing additional personnel and resources.466 Speaking notes from the meeting indicate that Chief Superintendent Couture delivered the initial welcome, followed by comments from Superintendent Clement. Assistant Commissioner Hovey left after making some preliminary remarks.467 Inspector Cabana oversaw the meeting once it was underway.468 Members of Project A-O Canada made a presentation, similar to those given on other occasions, summarizing their investigation to date.469 According to speaking notes from the meeting, the presentation was divided among three people: Inspector Cabana, who reviewed Project A-O Canada’s history, Staff Sergeant Callaghan, who addressed the current status of the investigation — including the material seized during the recent searches — and Staff Sergeant Corcoran, who outlined the plan for analysing the search materials and the need for additional resources.470 During the search, the RCMP had seized Arabic documents (about five percent of the total), 40 to 50 Arabic videos, and vast amounts of electronic data that might contain Arabic material. By Project A-O Canada’s estimation, at least two translators would be required. As well, there was evidence of hundreds of financial transactions involving Abdullah Almalki and his companies, some of these involving large amounts of money. One investigator had already arrived from Canada Customs and Revenue Agency (CCRA), but two more would be required. The team also needed expert assistance in reassembling the shredded documents. All told, Project A-O Canada officials estimated they would need a minimum of seven additional police investigators, two translators, two accountants and five analysts, as well as continued support from the High Tech Crime Section of RCMP “A” Division, and various background inquiries from other sections of the RCMP.471 Project A-O Canada offered to share copies of the seized data with CSIS and some of the other partner agencies in return for their assistance.472, 473 Almost everyone agreed to help. For example, the FBI offered to provide a translator and a Computer Analyst Response Team (CART). The Sûreté du Québec agreed to provide an analyst, investigators and an accountant,474 as well as two Arabic-speaking constables to help with translation.475 RCMP Headquarters contributed the use of its Financial Intelligence Unit.476 The OPP offered investigators,477 although it is unclear whether these were ever forthcoming. For its part, the OPS committed to keeping its members involved in the investigation.478 CSIS did not offer any assistance,479 explaining that its post-9/11 resources were already stretched. As discussed below, however, CSIS would soon provide a full-time analyst to assist in the Project A-O Canada investigation.480 According to Inspector Clement, the January 31 meeting was a good one, allowing investigators to put the information into context, based on the collaborative efforts of everybody at the table.
4.1.2 The Sharing Arrangements — January 31, 2002
It is clear that information sharing was discussed at the January 31, 2002 meeting. Less clear is the precise scope of the sharing arrangements that were agreed on, or even if there was agreement in this respect. Following is a summary of the testimony by those present at the meeting. 4.1.2.1 Project A-O Canada Inspector Cabana testified that CSIS and the other partner agencies were offered access not only to the seized data, but also to the “sum of the investigation” beyond the fruits of the searches. At the same time, he acknowledged that the focus was on the new information acquired,482 and conceded that the scope of the sharing arrangements was unprecedented. However, according to Inspector Cabana, the broad scope of these arrangements was consistent with Project A-O Canada’s mandate to work in partnership with outside agencies to prevent further terrorist attacks.483 Inspector Cabana was certain that this degree of information sharing was sanctioned at the highest level, that is, by CROPS and RCMP Headquarters,484 as
neither had objected to the extensive disclosure arrangements discussed at the meeting. CSIS did not object to the level of sharing either, or to the possibility that CSIS information would be shared. Inspector Cabana testified that Project A-O Canada had already disclosed CSIS information to the American agencies in meetings at which CSIS was present.485 In fact, all of Project A-O Canada’s pre-search information had been disclosed to the partner agencies at previous meetings.486 Inspector Cabana was questioned specifically about whether CSIS, CROPS and RCMP Headquarters knew as a result of the January 31, 2002 meeting that the entire Supertext database would be shared with the Americans. He reiterated that although the focus of the meeting was on sharing the fruits of the searches, it was made clear that all available information would be shared.487 In later testimony, Inspector Cabana went even further, stating that Project A-O Canada had offered a copy of the Supertext database to anyone who was interested. Given that CROPS and RCMP Headquarters were both present at the meeting, he concluded they would have been aware of this.488 Inspector Cabana pointed to a January 29, 2002 internal memo from Project A-O Canada to CROPS as further evidence of the sharing arrangements, and that CROPS was aware all information would be shared with the partner agencies. Although the memo recommended that “all available information” be shared with these agencies, it went on to state that “[s]imilar investigations are being conducted in other areas of the world and it would be beneficial to compared [sic] all seized information to establish links.” [Emphasis added.] Despite the memo’s qualifier, Inspector Cabana testified that it was meant to include not only seized information, but all information that was available. In his opinion, the seized information could not be analyzed in isolation.489 Even though the memo suggested that Inspector Cabana wanted to share only the fruits of the searches with Project A-O Canada’s partners, other discussions were taking place at the time the memo was forwarded to CROPS. According to Inspector Cabana, those discussions, together with the memo, meant that CROPS (specifically, Chief Superintendent Couture and Inspector Clement) would have been aware that Project A-O Canada intended to share everything with the Americans, beyond the fruits of the searches, and including the entire Supertext database.490 Staff Sergeant Corcoran confirmed Inspector Cabana’s assessment, testifying it was also his understanding the January 29, 2002 memo intended that all Project A-O Canada intelligence would be shared, including everything in Supertext.491 He could not remember if any ground rules for sharing information were discussed at the meeting, although he maintained it was made clear there would
82 FACTUAL BACKGROUND: VOLUME I be full and open sharing.492 Staff Sergeant Callaghan could not recall a specific discussion about sharing everything on the Supertext database, as the focus of the meeting was on sharing the hard drives and the seized documents.493 As an aside, the Project A-O Canada team sought legal advice on whether they could disclose the materials from the January 22, 2002 searches to CSIS and other partner agencies.494 However, because the Government claimed solicitor-client privilege, the nature of this advice was not disclosed to the Commission. 4.1.2.2 CSIS A CSIS employee did not recall being informed, at any time, that the RCMP planned to share more than the product of the January 22, 2002 searches with the American partner agencies. She was present at the January 31, 2002 meeting, and understood that the meeting dealt with how to analyze and process the vast amount of information seized. She also understood that the RCMP would need to share information in order to receive help from others.495 Although he did not attend the meeting, another CSIS headquarters employee agreed that it would have to be a routine matter to share the material with the American agencies if they were going to help analyze the search product. It appears that he, too, was referring to the material seized during the searches.496 4.1.2.3 CROPS Chief Superintendent Couture’s general understanding of sharing arrangements following the January 31 meeting was that Project A-O Canada would share the search results with its partner agencies, but would not share the entire contents of the Supertext file.497 As discussed in Section 4.3, when Chief Superintendent Couture learned that the three CDs containing the entire Project A-O Canada Supertext database had been given to the American agencies in April 2002, he generally disapproved that the sharing had exceeded the fruits of the searches. He did not recall authorizing such extensive disclosure,498 nor did he believe that the original free-flow-of-information agreement was modified on January 31, 2002, or any time after that.499 According to Chief Superintendent Couture, the January 29 internal memo recommending that all available information be shared with CSIS and the American agencies500 simply confirmed that the pre-search information-sharing arrangement would remain in place if Project A-O Canada received significant new information.
Superintendent Clement testified that he gave general direction at the January 31 meeting for members of Project A-O Canada to continue working with other agencies, and to share everything in pursuit of their common goal. Like Chief Superintendent Couture, he did not think that the agreement extended to Project A-O Canada’s entire Supertext database. However, he suggested that his original direction for it to be an open-book investigation might have given the impression it was acceptable to share absolutely everything. He took full responsibility for the fact that Project A-O Canada members might have understood that more than the fruits of the searches could be shared.
4.1.2.4 CID
Superintendent Pilgrim, who represented RCMP Headquarters at the all-agency meeting, recalled only that it was agreed the U.S. agencies would help retrieve and analyze information from the searches.504 Other than that, sharing the seized information was not a significant part of the discussion, although it was generally agreed that the U.S. agencies would have access to it. He did not recall any specific discussions about sharing other information beyond the fruits of the searches. Although Assistant Commissioner Proulx was not present at the meeting, he was later made aware of the decision to seek assistance from the American agencies to analyze the seized hard drives. To his mind, this was acceptable, given that this information might help to prevent another attack.507 However, he was not asked for his consent to release the information, nor would it normally have been required, as this was an operational decision generally left to the investigator or officer in charge.
4.1.3 The Plan for Analysis
Even before the January 31 meeting, Project A-O Canada had begun planning how to analyze the search materials. Staff Sergeants Callaghan and Corcoran consulted with a number of people, including members of “A” Division’s High Tech Crime Unit and CSIS. The 26 hard drives contained approximately 150 gigabytes of potential data storage space, including e-mails, correspondence, and Internet search sites, all of which needed to be analyzed carefully using tech-strings to identify key words and phrases. Many of the 40 videotapes seized were in Arabic, and their content had not been established. Family videos had been seized because they showed unidentified individuals whose role in the investigation had yet to be determined. The 20,000 paper documents seized included photographs, financial records, correspondence and books, in English and various Arabic dialects. By all appearances, the two boxes of shredded documents could be reassembled. As well, based on an initial assessment, the officers concluded that further interviews and some follow-up investigation would be required. On February 6, 2002, a delegation from the American Embassy arrived to discuss a strategy for analyzing the search materials. Inspector Cabana was present, along with representatives from the American agencies. That same day, members from the Sûreté du Québec, including two civilian analysts, two police officers and two Arabic translators/police officers, arrived and were briefed on the investigation. Three members of the Montreal RCMP came as well, and were assigned the task of analyzing documentary evidence from the various search sites.510 Analysis of the hard drives began in early February. Sergeant Walsh examined them and appears to have largely completed this task by February 5 or 6, 2002. At the same time, Project A-O Canada officials were working on a more effective way of scanning the large number of documents.512 Around this time as well, Project A-O Canada decided to scan all the seized documents to disk and provide them to the partner agencies.513 Despite its initial reluctance to commit resources at the January 31, 2002 meeting, CSIS agreed at a meeting on February 18, 2002 to provide analysts to the Project on a part-time basis. This help never materialized; instead they sent a CSIS employee who is an expert in transnational organized crime to participate in the investigation full time.514 He was seconded to Project A-O Canada in March 2002.515 According to Staff Sergeant Corcoran, Project A-O Canada paid little attention to Mr. Arar in the months after the January 22 searches, as investigators focused on analyzing the seized materials.
Prior to the January 2002 searches, Staff Sergeants Callaghan and Corcoran met occasionally with the U.S. agencies, but senior command staff was usually present.519 Project A-O Canada’s direct relationship with the FBI began in late October 2001, when Project A-O Canada officials began meeting with an FBI agent, primarily about the Almalki investigation. A working relationship developed from there in which the agent would occasionally drop off information to Project A-O Canada. The relationship intensified somewhat when Mr. Arar’s computer was seized by Canada Customs in December 2001. [***]. After 9/11, the CIA assumed a more operational role in the U.S.-led “war on terror.”520 Following the searches, Staff Sergeants Callaghan and Corcoran began dealing directly with the American agencies on a regular basis, and Corporals Lemay and Buffam did so occasionally as well. Not only did contact with these agencies become more frequent, it also became less formal. Inspector Clement testified that he considered the new informality to be acceptable.521 While one or two FBI officers had building passes to RCMP Headquarters, none were allowed unescorted access to the “A” Division building that housed Project A-O Canada. To enter the building, American officials had to be signed in and escorted by a Project A-O Canada investigator.522 As they did not have access to investigators’ work stations, they would have gone directly to the office shared by Staff Sergeants Callaghan and Corcoran.523 In essence, then, the access afforded the American agencies was no different than that permitted to any approved outsider.524 Either Inspector Cabana or Inspector Clement, or both, were aware when American agents were on Project A-O Canada premises.525 Inspector Cabana testified that the American agents did not have open access to Project A-O Canada databases, but if they had requested information, the request would have been granted. 526 In February 2002, Project A-O Canada officials met four times with the FBI,527 and periodically with other American agencies.528 Following is a brief description of these meetings and the topics addressed.529 On February 5, Inspector Cabana and Staff Sergeants Callaghan and Corcoran met with the American agents. The American authorities wanted to examine the seized hard drives and prepare copies for themselves. The protocol for sharing information was discussed, as was the process for obtaining copies of the search information. Staff Sergeant Corcoran specifically recalled the message being conveyed that information sharing was for intelligence purposes only; if the Americans wished to use it in court, they would have to make an MLAT (Mutual Legal Assistance Treaty) request.530 The discussion also touched on other topics related to the investigation, including Mr. El Maati.531 However, no specific information was shared at this meeting. On February 6, Staff Sergeant Corcoran met with members of the American agencies to discuss progress on the overall investigation, including manpower requirements and how the information would be analyzed. While FBI officials were present on site as of early February, the agency’s presence increased in late February, when a team of FBI special agents arrived at Project A-O Canada offices. The team included two agents who had expressed an interest in Mr. Arar and other Project A-O Canada targets, a Washington financial analyst with an interest in the financial records seized from the searches, and an investigative analyst exploring potential links to al-Qaeda. The situation report for February 19 indicated that Project A-O Canada was to exchange information with the FBI over the next several days, with the understanding that a request for documentation would be formalized by a memorandum.532 On February 7, Inspector Cabana held a meeting with Staff Sergeants Corcoran and Callaghan to discuss a process for controlling information related to the Project. Inspector Cabana requested that all partners be advised that his approval was required before any information was disclosed. This was not an attempt to modify the agencies’ information-sharing arrangement, but simply an attempt to avoid the circular flow of information.
4.2.2 The Search Information That Was Shared
Following is a timeline and description of the information shared with the American agencies in the period following the January 22, 2002 searches. The seized hard drives were fairly easy to share. Scanning paper documents was more time consuming; however they too were provided to the Americans in time.534 A situation report for February 6, 2002 indicates that informal information sharing began at this time with a “general exchange of information” and a discussion of manpower requirements.535 It is clear that the fruits of the searches were already being shared with the Americans. The first evidence of a direct transfer of search information to the Americans appears on February 8, when Staff Sergeant Corcoran provided American analysts with analytical charts. However, it is unclear what this information related to, and to which agency it was given. No caveats were attached to the information that U.S. agencies were given during this period. In Inspector Cabana’s opinion, this was acceptable for a number of reasons. First, the order had been given that caveats no longer applied and, as the Inspector pointed out, they were unnecessary in any event. Caveats are used to protect sources, prevent further dissemination, and ensure that information is used for the purpose intended. According to Inspector Cabana, everyone knew that the information was being shared to prevent further terrorist attacks. Moreover, much of the information in question had already been discussed in open meetings involving the RCMP and its partner agencies. Project A-O Canada’s view of the sharing arrangements as established at the January 31, 2002 meeting was that, at the very least, everything from the searches would be shared with the Americans. Staff Sergeant Corcoran confirmed this understanding with Inspector Cabana on February 13, 2002, and confirmed with the Americans that none of the information would be released more widely without Project A-O Canada authorization. With this understanding, Project A-O Canada provided the Americans with CDs containing approximately 50 megabytes of data, on or about February 14, 2002. Inspector Cabana testified that the CDs contained digital copies of paper documents seized from the search, which Project A-O Canada had been scanning continuously since the searches. He did not believe that all such documents had been scanned by February 14, and could not say when digital copies of all the seized paper documents were provided. It is apparent from officers’ notes that the plan was to provide the scanned paper documents to the Americans on a piecemeal basis, as the scanning process continued. It is not clear when Project A-O Canada transferred to the Americans copies of the hard drives obtained in the January 22 searches. Staff Sergeant Corcoran could not recall the exact date, but he thought it was done by February 8, 2002. In any event, Inspector Cabana’s notes reflect that, by February 21, 2002, the Americans had the hard-drive information in their possession. It appears that the Americans had not yet received the search videotapes as of February 15, 2002. An entry in Staff Sergeant Corcoran’s notes for that day indicates that the Americans would “love” to have access to them.542 Similarly, it is unclear whether the shredded documents were ever turned over to the Americans for analysis. Instead, it appears that this information was analyzed by the RCMP in Edmonton. One more piece of information shared with the Americans is worth mentioning. On February 8, 2002, the Information to Obtain (ITO) for the January 22 searches was given to the Americans for review. Sergeant Walsh stated that this was done to provide American agents with a roadmap for their investigation, and to help them analyze the information gathered during the searches. In his view, the Americans needed the ITO for law enforcement purposes, and he trusted that the U.S. agencies would maintain its confidentiality. Inspector Clement also testified that an ITO was commonly used to update investigators in this fashion.547 The ITO was subject to a sealing order, which was issued on January 21, 2002. Sergeant Walsh testified that he did not believe a variation of the sealing order was required before making the ITO available to American authorities; in fact, no one obtained a variation before allowing the Americans to read it. As far as Sergeant Walsh understood, the purpose of the sealing order was to prevent public disclosure of the information used to obtain the search warrant. In this case, U.S. authorities were part of the investigation, not members of the general public. Although the U.S. authorities were not given access to the sealed package, Sergeant Walsh testified that using the ITO was essential to advancing the Project A-O Canada investigation,549 as sharing intelligence with the Americans was an integral part of the investigation. To summarize, by February 21, 2002 the Americans had received a portion of the paper documents from the searches, as well as imaged copies of the seized hard drives and a summary of the ITO for the searches. It should be noted that, after 9/11, the relationship between the CIA and the FBI changed as a result of a Presidential Direction which required the two agencies to work more closely together and share information. Any information shared by Project A-O Canada with U.S. agencies could have been provided to the CIA. This was understood by Project A-O Canada’s managers and senior members of CID.
4.2.3 The FBI Visit — Late February 2002
In late February 2002,550 members of the Project A-O Canada team met with five FBI personnel. FBI agents had expressed an interest in Mr. Arar, as well as other Project A-O Canada targets. The situation report for that day (which was sent to RCMP Headquarters and CSIS551) indicates that an “exchange of information with the FBI will take place over the next several days with the understanding that a request for documentation will be formalized by memorandum.”552 During the visit, the FBI sought and received access to Project A-O Canada files.553 The presence of the FBI agents was a surprise to Project A-O Canada officials.554 Inspector Cabana did not recall inviting them to take part in the February 19, 2002 meeting, and Inspector Clement concurred that the agents were there without a formal request. Out of courtesy, they were allowed to view materials, strictly on an intelligence basis, until a formalized request arrived.555 The agents expressed an interest in Mr. Arar, but did not provide any details. They merely asked to review the information on Mr. Arar and others (including Mr. Almalki). When Corporal Lemay mentioned that the RCMP had requested information on Mr. Arar from the FBI almost three months ago, and still had not heard anything, the agents promised to follow up on the issue.556 Inspector Cabana testified that he was aware of an FBI investigation underway, but did not recall asking for specifics.557 According to Staff Sergeant Corcoran, the Americans’ interest in Mr. Arar piqued his own. Although he asked the FBI to share what they knew about Mr. Arar, he was never given a satisfactory response. To this day, Project A-O Canada has not been able to obtain a full understanding of the FBI interest in Mr. Arar. In any event, members of the FBI were at the Project A-O Canada offices reviewing documents and analyzing information in three days in February 2002.558 The visit began with a 1:30 p.m. meeting on February 19 concerning how to retrieve and analyze the seized documents. Project A-O Canada agreed to provide the FBI with the information for intelligence purposes only, making it clear that an MLAT would be required if the FBI used the information in a prosecution.559 That same day, Staff Sergeants Corcoran and Callaghan met with Inspector Cabana to discuss the FBI presence, and the protocol for sharing information.560 Staff Sergeant Corcoran testified that he wanted to discuss the sharing arrangements to ensure everyone at Project A-O Canada was “on the same page.” Inspector Cabana told the officers to ask the FBI for a formal letter of request for the documents being shared.561 During the FBI visit, Project A-O Canada personnel gave FBI agents significant access to the fruits of the searches, as well as to materials from the Project A-O Canada investigation in general. However, it is not clear if a direct transfer of documents or material occurred at this time. At a minimum, the FBI spent three days engaged in a rigorous review of Project A-O Canada information, including material from the January 22 searches and other material contained in the files. Also during this time, the FBI agents met with Corporal Lemay and reviewed two binders of information on Mr. Arar.562 These binders contained the rental application and lease that may have been shown to Mr. Arar when he was detained in the United States.563 The binders also included the following material: a profile of Mr. Arar; a photo of Mr. Arar and his home; immigration photos of Mr. Arar and his wife; police reports; past employment information; NSIS inquiries on Mr. Arar; a surveillance report from October 12, 2001; the results of the November 29, 2001 secondary examination of Mr. Arar; and other investigative materials on, or related to, Mr. Arar.
Staff Sergeant Corcoran instructed Corporal Lemay to allow the FBI agents to copy anything they wanted, as long as he was made aware of it and a comprehensive inventory was kept.565 Again, it is unclear whether the FBI agents actually received copies of the binders. Staff Sergeant Corcoran testified that he was initially under the impression that the FBI made copies of some of the documents, and were given a copy of the rental application and lease. Certainly, if they had wanted copies they would have received them.566 However, Staff Sergeant Corcoran’s contention that the FBI received copies of documents in the Arar binders was later contradicted. (In the fall of 2003, the FBI was asked about receiving a copy of the rental application and lease during their February visit.567) Staff Sergeant Corcoran said that he would later learn the FBI made notes, and did not take actual documents.568 In his testimony, Corporal Lemay denied passing the rental application and lease to the agents, although he agreed that these documents were in the binders the agents reviewed.569 The agents took notes while viewing the binders, but Corporal Lemay did not give them photocopies, nor was he aware that they had requested any.570 According to Staff Sergeant Callaghan’s notes, on February 20 the FBI spent some time reviewing documents and videos from the January 22 searches. He was with them while they conducted this review, and testified that they only looked at a couple of the videos.571 According to the Project A-O Canada situation report for February 21, the FBI also reviewed CSIS advisory letters that contained caveats requiring CSIS’ consent to share the information with agencies other than the RCMP. Although Inspector Cabana was not aware if this consent was sought before the letters were shown to the visiting FBI agents, he testified that the letters had been the subject of extensive discussions in numerous meetings involving all agencies, including the American agencies, CSIS and RCMP Headquarters. In these circumstances, testified Inspector Cabana, the chances were “remote” that anyone had gone to CSIS to obtain consent. Moreover, the February 21 situation report was given to CSIS, and no one from there had contacted “A” Division to object to this information being shared with the FBI. Inspector Cabana testified that this was consistent with the post-9/11 agreement between the partner agencies, which called for them to share information freely.572 The February 21 situation report also indicates that when the Americans reviewed the E&R III database,573 they realized that information they had forwarded to CSIS might not have been provided to the RCMP as well.
Consequently, the FBI reviewed the information provided to CSIS during the previous two years, and compiled a report for Project A-O Canada.574 Both Inspector Cabana and Staff Sergeant Corcoran testified that the situation report wrongly indicated that the FBI had access to the E&R III database; apparently, not even CSIS had access to it. Furthermore, the Americans did not have the training necessary to use the database. A more likely event was that FBI agents were shown a report from the E&R III database.575 4.3 THE SUPERTEXT DATABASE In late March or early April 2002, Project A-O Canada prepared CDs containing the entire Supertext database and provided them to the American agencies. The database contained all documents pertaining to the Project A-O Canada investigation, including the documents seized during the January 22, 2002 searches, and a considerable amount of information about Mr. Arar. 4.3.1 The FBI Request By the time the FBI visited Project A-O Canada offices in late February 2002, Project A-O Canada had already shared information with the Americans, and had indicated its intention to share even more.576 To Inspector Cabana’ mind, this practice of sharing documents with the U.S. agencies was an important feature of the Project A-O Canada investigation.577 Clearly, the Americans had an interest in acquiring as much information as possible. However, such a request was not formally made until the February 2002 visit, when it was agreed that the FBI would do so.578 Project A-O Canada would not receive a formal written request from another U.S. partner until April 2002.579 On February 22, 2002, immediately after visiting the Project A-O Canada offices, the FBI sent a letter addressed to Commissioner Zaccardelli,580 to the attention of Superintendent Pilgrim at National Security Investigations Branch (NSIB). The letter was a formal request for materials obtained in the January 22 searches. The letter acknowledged that an MLAT request would be required if the materials were to be used in any U.S. criminal proceeding. Referring to items seized in the searches, the letter requested copies of documents, both paper and electronic, hard drives, media storage devices including CD-ROMs and floppy disks, audio and video recorded materials, together with investigative and analytical reports and translations produced by Project A-O Canada in relation to the seized materials. The letter also requested other material relevant to the Project A-O Canada investigation. Finally, the letter also mentioned the partner agencies’ shared interest in a number of individuals, including Mr. Arar. RCMP Headquarters forwarded the letter to Project A-O Canada, without any directions as to how Project A-O Canada should respond. On the face of it, the FBI request refers only to the material obtained from the searches. However, RCMP officers interpreted it as encompassing more than just the product of the searches. In Inspector Cabana’s opinion, the FBI letter reflected discussions among the participating agencies at the January 31, 2002, all-agency meeting. On this basis, it was not surprising that Headquarters did not prohibit release of the information, or require that caveats be attached. Nor was it surprising that Headquarters did not ask to see the information before it was released to the FBI.581 Inspector Cabana further testified that it was agreed at the January 31, 2002 meeting that all available information would be shared, not only the seized documents.582 This is an important distinction, as will become clear, because Project A-O Canada investigators eventually shared with the Americans much more than just the documents seized during the searches. According to Staff Sergeant Corcoran, the FBI letter appeared to request not only the fruits of the searches, but everything in the Supertext database.583 In making this determination, he relied on the letter’s request for other material relevant to the investigation.584 Assistant Commissioner Proulx concurred that the request went well beyond what was obtained in the searches.585 In contrast, Inspector Reynolds — the only RCMP officer to offer a different interpretation — understood the request to be for other relevant material and, as such, it did not include everything related to the investigation.586 Notably, none of the officers attached significance to the fact that the materials requested by the FBI were referred to as items seized in the searches.587 It is not entirely clear from the testimony whether Headquarters approved the FBI request. Although it appears that no one actually considered the request and formally approved it, there were grounds for Project A-O Canada officials to conclude that approval had been given. First, the copy of the letter sent to Project A-O Canada had been initialled by two Headquarters officers, both of whom reviewed operations investigations for Assistant Commissioner Proulx. However, according to Assistant Commissioner Proulx, the initials did not necessarily indicate approval of the content, merely approval that the correspondence be sent to the divisions. That said, he agreed that Project A-O Canada officials might interpret the initials to mean that Headquarters had approved of the letter’s request.588 Project A-O Canada’s copy of the letter also contained a hand-written request to “please process.”589 Again, according to Assistant Commissioner Proulx, this did not necessarily indicate approval from Headquarters. It was possible that someone had written the note, then sent the document to the two officers.590 Alternatively, he suggested that the note might have meant “process,” in the sense of uploading the document onto a database.591 Despite the difficulty in determining whether Headquarters approved the FBI request, Assistant Commissioner Proulx agreed that, in the circumstances, Project A-O Canada officers might have believed they were authorized to proceed with the letter’s request for information. Moreover, Assistant Commissioner Proulx’s understanding was that the FBI request referred to the entire Supertext database.592 Inspector Clement, who was Inspector Cabana’s senior at “A” Division, saw the February 22 request from the FBI, reviewed it, and authorized disclosure of the information,593 knowing that the request went well beyond the fruits of the January 22 searches. In his view, Headquarters had approved the request and the subsequent release of information.594 Several other issues about Project A-O Canada’s transfer of the CDs are relevant here. Project A-O Canada did not attach caveats or the third-party rule to the three CDs, or to any correspondence accompanying them. Moreover, before delivering the CDs, Project A-O Canada did not review them for relevance, based on the “need-to-know” principle, or for personal information. Nor did officials seek the consent of third parties whose documents were included, even where caveats and third-party rules were attached.595 Finally, Project A-O Canada transferred the three CDs to the American agencies directly. The contents of the CDs are described below. This is followed by the testimony of the officers involved in the transfer, including their understanding of what occurred and whether it was acceptable practice. The Contents Clearly, there was confusion within Project A-O Canada and the RCMP generally about what precisely was contained on the three CDs. By way of example, the Project A-O Canada situation report for April 9, 2002 (signed by Inspector Cabana and Staff Sergeant Corcoran) indicated that the Americans were given scanned documents from the January 22 searches, but made no mention of the balance of the Supertext database.596 Apparently, Staff Sergeant Corcoran drafted this report believing that Project A-O Canada was providing only the results of the searches, even though it was his understanding that all of the documents on Supertext would ultimately be shared with the Americans.597 Inspector Cabana testified that 99 percent of what was contained on the Supertext database — and therefore on the three CDs — would have been the scanned paper documents seized from the January 22, 2002 searches.598 While this might have been true in terms of volume, in fact the CDs contained much more information than this. Furthermore, given that situation reports599 (such as the inaccurate report drafted on April 9, 2002) were the means Headquarters used to monitor Project A-O Canada’s activities, the fact that additional material was exchanged likely went unnoticed by Headquarters.600 Project A-O Canada used the Supertext database to store and manage all documents originating from the Project, including exhibits, statements, memos and reports, as well as situation reports, surveillance reports, and reports from outside agencies.601 Theoretically, every piece of paper Project A-O Canada generated or received was scanned and stored in the Supertext database.602 During testimony heard in camera, RCMP officials provided detailed descriptions of the information contained in Supertext when the three CDs were given to the Americans.603 The following sections describe the information that can be disclosed in this public Report. 4.3.2.1 CSIS Materials Many of the CSIS documents given to the Americans as part of the Supertext database were either disclosure letters or advisory letters containing a CSIS third-party caveat. Also included in the database was a CSIS study, as well as reports, threat assessments, an interview summary, photographs, an RCMP memo, various RCMP letters, faxes and briefing notes, and RCMP situation reports. Most of these documents contained a CSIS third-party caveat as well.604 Project A-O Canada did not obtain CSIS’ consent to transfer any of this material to the American agencies. According to Project A-O Canada managers, it was not necessary to do so because of the free-flow-of-information agreement. However, as discussed elsewhere in this Report, CSIS officials did not concur that an agreement was in place permitting the RCMP to transfer CSIS material subject to a third-party caveat, without CSIS consent.
