Intelligence Sharing

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 477-503

477

cha Pter 12

INTELLIGENCE SHAR ING

The sh aring of inform ation between and within states is among the

most sensitive and controversial intelligence issue in the post-9/11

era. It lay at the hear t, for example, of the Arar inquiry ’s key f‌indings.

There, the RCMP’s ill-considered provision to A merican authoritie s of

raw information, along with sensationalist commentary on the putative

aff‌iliation of Mr. Arar and his wife, Monia Ma zigh, with al-Qaeda, was

the likely cause of Arar’s treatment at the hand s of the U.S. authorities,

including his ultimate rendition to Syr ia. Further, as Justice O’Connor

underscored repe atedly in h is report, “the RCMP provided American

authorities with i nformation about Mr. Arar without attaching written

caveats, a s required by RCMP policy, thereby increasing the risk that

the information would be used for purposes of which the RCMP would

not approve, such as sending Mr. Arar to Syria.”1

Although cr itical of the performance of t he RCMP on the specif-

ics of the Arar case, Just ice O’Connor nevertheless underscored the

importance of international information sharing to national security.2

Indeed, as a matter of international law, in formation sha ring of some

sort is probably mandatory in t he area of anti-terrorism.

1 Commission of I nquiry into the Actions of Ca nadian Off‌icial s in Relation to

Maher Arar, Rep ort of the Events Relating to Maher Arar: Analysis a nd Recommen-

dations (Ottawa: Publ ic Works and Govern ment Services Cana da, 2006) at 13

[Arar inquir y, Factual Report].

2 Ibid. at 22.

NATIONAL SECUR ITY LAW478

Canadian government information shari ng is subject to the Privacy

Act3 and its standards discussed i n Chapter 11. The exceptions to the

limits on di sclosure found in thi s statute are, however, quite extensive

and leave ample room for in formation to migrate within and among

governments. This chapter reviews other rules that might govern Pri-

vacy Act–compliant intelligence sharing at both t he inter national and

domestic level. It examines, f‌irst, information sharing between states

and then information shar ing within C anada.

Part i: inFOrmatiOn Shar ing a mOng

StateS

Intelligence sharing among allied st ates is a regular practice, one that

has accelerated in the post-9/11 environment. This information ex-

change is inf‌luenced by both multilateral a nd bilateral international

instruments. Among other things, these include U.N. Security Council

resolutions and intelligence-sharing agreements.

a. u.n. Security cOuncil reSOlutiOnS

Pre-9/11 U.N. Security Council re solutions, such as Resolution 1269

(1999), “called upon” states to “exchange information in accordance

with inter national a nd domestic l aw, and cooperate on administr ative

and judicial matters i n order to prevent the commission of terrorist

acts.” After 9/11, this hortatory language gave way to binding legal

dictates. Thus, in re solution 1373, the council decided that all states

must, inter alia, “take the necessary steps to prevent the commission of

terrorist acts, including by provision of e arly war ning to other States

by exchange of information … [and] afford one another the greatest

measure of as sistance in connection with crimina l investigations or

crimina l proceed ings relating to the f‌in ancing or support of terrorist

acts, including assistance in obtaining evidence in their possession ne-

cessary for the proceedings.” As a result, information shar ing is now a

mandatory counterterror ism obligation.

3 R.S.C., 1985, c. P-21.