Federal confusion undermines no-fly list, spy watchdog says

The federal spy watchdog says confusion over how Canada's no-fly list should work has "significantly undermined" its potential to help keep the skies safe.

In its newly released annual report, the Security Intelligence Review Committee reveals there is uncertainty in government over who should be on the no-fly roster.

Under the program in place since June 2007, airlines rely on a list of individuals considered "an immediate threat to civil aviation" should they board an aircraft.

The review committee says, however, that description is open to interpretation, and federal agencies have "struggled" with nominating people for the list.

The committee, which keeps an eye on the Canadian Security Intelligence Service, is chaired by former Conservative MP Chuck Strahl, who once served as transport minister.

Candidates for the no-fly list are put forward primarily by the RCMP and the Canadian Security Intelligence Service.

Members of these agencies, along with representatives of Transport, the Canada Border Services Agency and the Justice Department, sit on an advisory panel that formally recommends names for inclusion. The Public Safety minister has the final say.

"Even though guidance materials were provided by Transport Canada that were intended to assist the nominating departments, uncertainty remains about the precise meaning of 'immediate threat,"' says the review committee's report.

Consistent criteria needed

Overall, CSIS has taken a "generally cautious" but "somewhat ad hoc" approach to putting forward names, says the committee. It found the spy service cast the net too broadly, straying from the principle of a direct threat to aviation security.

The committee recommends CSIS develop a consistent set of criteria for identifying names to be added to the list.

CSIS had no immediate comment on the recommendation.

People are not told in advance that they are on the no-fly list.

When an airline zeroes in on someone as a possible match with an entry on the list, the carrier contacts Transport Canada for confirmation of identity and a decision about boarding.

Someone on the roster, or whose name mistakenly matches one on the list, is automatically prevented from printing an airline ticket through an Internet vendor or at an airport kiosk.

In establishing the list, Canada took its cue from the United States. The American no-fly roster believed to be much larger than the Canadian one has been heavily criticized by civil libertarians.

Ottawa insisted a Canadian version was necessary to guard against terrorists and others out to cause serious trouble aboard aircraft. Critics called it a violation of human rights with no guarantee of increased safety.

Only one person is publicly known to have been prevented from boarding a plane due to being on the Canadian no-fly list.

Hani Al Telbani of Longueuil, Que., was denied a seat on an Air Canada flight from Montreal to Riyadh, Saudi Arabia, via London, on June 4, 2008.

Within days the master's student in information system security at Concordia University applied to the federal Office of Reconsideration an appeal body and filed suit in the Federal Court, alleging the no-fly program breached guarantees under the Charter of Rights and Freedoms.

A 2008 report commissioned by the appeal office said Telbani should never have been barred from the flight.

Report notes other security concerns

In the course of another study outlined in its annual report, the intelligence review committee found CSIS suffered a "serious operational failure" during an effort abroad to investigate a serious threat involving proliferation of weapons of mass destruction.

Though divulging no details, the committee says a number of factors, many beyond CSIS control, prompted the failure.

The review committee also raises concerns about CSIS's information exchanges with foreign counterparts a sensitive issue given the possibility such sharing can lead to the torture of people detained in overseas prisons.

The committee identified problems with:

• CSIS's efforts to obtain assurances from foreign partners when receiving information from them.
• the attachment of caveats or restrictions on use when providing information to a foreign agency.
• the sharing of information on young offenders.

The watchdog concluded there was a "lack of clarity and absence of guidelines" on assurances from foreign partners when information-sharing poses a substantial risk of torture.

It also found the use of specific caveats was inconsistent noting up to a dozen different ones had been attached to files shared in recent years.

The review committee recommends CSIS develop policy and direction on the use of assurances, and that it revise its policy on caveats.