The Collateral Casualties of Collaboration: The Consequence for Civil and Human Rights of Transnational Intelligence Sharing

Abstract

The sharing of intelligence information between and among states is among the most important intelligence practices in the post-9/11 era. Its value from a national security perspective is clear: no one state is so omniscient that it has access to all the intelligence information relevant to its national security interests. This observation is even more pertinent in a period in which the focus on terrorism has prompted increased consumption of intelligence shared with and between the states from which Islamist terrorists operate. At the same time, intelligence information sharing presents serious challenges to key values animating democratic societies. Intelligence sharing lay at the heart, for example, of the comprehensive Canadian public inquiry into the precipitous and unorthodox removal in 2002 of Canadian citizen Maher Arar by the United States to Syria, and his subsequent imprisonment and torture in that country. The Arar matter, read with an eye to other proceedings, suggests a number of collateral impacts associated with intelligence sharing. First, intelligence sharing - especially that which implicates human rights-abusing states - may actually induce violations of fundamental rights and freedoms. Second, even within democratic societies, intelligence sharing risks further undermining the already fragile public rights to information in national security matters that exist under freedom of information laws or under the due process standards applied in court proceedings. Third, information is inherently fungible, and national systems designed to guard how it used may prove ineffective once that information is in international circulation. This paper tests these assertions, drawing examples [in this draft] primarily from the Canadian experience. Part I examines the scope and legal basis of intelligence information sharing. Part II then assesses several implications of information sharing for civil and human rights. The chapter concludes by highlighting what Hans Born has called the accountability gap - the national focus of review and accountability bodies in an era of enhanced cooperation between intelligence agencies. It joins his call for redoubled review body cooperation as a partial means of overcoming the collateral consequences of intelligence sharing.