The FBI is allowed to operate in Canada

The foiling of what is alleged to be an attempted terrorist attack targeting a passenger train traveling from Toronto to New York is raising questions about the authority of United States officials to operate abroad.

Officers with the Royal Canadian Mounted Police announced earlier this week that the US Federal Bureau of Investigation and US Department of Homeland Security played an instrumental role in the apprehension of two foreign men suspected of plotting an attack against a Via Rail passenger train going from Toronto, Ontario to New York City.

"We are alleging that these two individuals took steps and conducted activities to initiate a terrorist attack," Jennifer Strachan, criminal operations officer for RCMP Ontario, said during Monday’s press conference.

The suspects, 30-year-old Montreal, Quebec resident Chiheb Esseghaier and Raed Jaser, 35 of Toronto, are being held in Canada while authorities examine what a preliminary investigation has led them to consider thus far an al-Qaeda-supported terrorist attack. But as officials north of the border try to get to the bottom of the alleged plot, Canadians are also questioning the role of US authorities in the apprehension of the men.

Not only did two federal agencies operated by the US government assist in the probe, but plans are in the works to allow for these entities and others to have greater power when pursuing cross-border investigations. RCMP Chief Superintendent Joe Oliver spoke with Canada’s Embassy News recently and explained how current rules — while relatively lax — are impeding international investigations like the one foiled on Monday.

“When you look at our environment, increasing travel and trade, more complex legal systems, continuing pressures with respect to resources and how we allocate...your investigative capacity has actually declined,” Oliver told Embassy.

“Taking into consideration the need for us to be more effective when you look at this question of economics and policing; taking into consideration that the Canada-US border is a huge area, a huge responsibility to monitor, detect, protect and investigate, there’s a real need for us to work together,” he said.

Three months and a day after the September 11, 2001 terrorist attacks, the US and Canada signed the Smart Border Declaration, in turn agreeing to increase information sharing and law enforcement cooperation between the two countries. In the decade-plus since, agencies on either side of the border have seen things change dramatically. The Canadian Public Safety Office notes that the signing of the Smart Border Declaration led to the creation of Integrated Border Enforcement Teams (IBETS) “to jointly investigate cross-border criminal and terrorist activity.” Today there are IBETs operating in 15 regions along the US/Canada border drawing upon the RCMP and the Canada Border Services Agency to cooperate directly with the US Coast Guard, Customs and Border Protection and Immigration and Customs Enforcement.

Five years after that agreement was signed, Canadian Public Safety Minister Stockwell Day said that the FBI was approving US officials to conduct “routine investigations” on a regular basis across the border up to 50 miles deep into Canadian territory.

In 2011, the partnership between the two countries’ agencies changed again. That February, US President Barack Obama and Canadian Prime Minister Harper signed a joint declaration, “Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness,” and in December the White House celebrated the program’s expansion.

But that partnership could still be stronger, the RCMP’s Oliver told Embassy. A 2012 budget implementation legislation signed by PM Harper changed a number of Canadian laws to solidify a program that would allow for investigators on both sides of the border to more easily engage in maritime missions in shared waterways. Allowing for agencies that operate primarily on land to easily hop from one country to another is something that hasn’t yet been perfected.

“We’re still trying to negotiate...the challenge is, in the land environment, it’s much more complex,” said Oliver. “The possibility of having contact with the general public is greater, because of interaction with streets...it’s the visibility with the public,” he said.

Speaking to the Canadian Senate Committee on National Security and Defense last May, Oliver testified that Canucks are being led with “baby steps” to accept the growing presence of American authorities, adding, "We recognized early that this approach would raise concerns about sovereignty, of privacy, and civil liberties of Canadians.”

"Criminals are exploiting the fact that we have to respect our boundaries and we have to stop at the border," Oliver said, acknowledging last year that while the FBI and Drug Enforcement Agency is allowed to operate in Canada now, that power could come to more agencies in just a matter of times — perhaps most evident with the reported use of the DHS during this week’s terror bust.

If all goes as planned, baby steps won’t matter in a few years. Outside of the Beyond the Border program, US law enforcement has other workarounds to ensure the FBI can conduct missions abroad. On the official website for the agency, the FBI touts itself as “the nation’s lead federal law enforcement agency for investigating and preventing acts of domestic and international terrorism. “

“Combating terrorism effectively requires the continuous exchange of information and close, daily coordination among US law enforcement, members of the US Intelligence Community, first responders, international law enforcement agencies and others,” the website continues. And since the alleged terror plot targeted a passenger train traveling through the US — and likely continuing Americans — investigating and attempting to halt the attempt falls under the jurisdiction of the agency, despite the suspects being stopped in Canada.

“With the permission of the host government and in conjunction with the State Department, the FBI deploys its resources, supporting the investigative efforts of the foreign government,” acknowledges the agency. Since the 1980s, the FBI says agents have been deployed hundreds of times around the world to investigate foreign crimes targeting US citizens, including to Athens, Greece in 2007 when a rocket-propelled grenade was fired into the US Embassy.

The US and Greece aren’t adjacent, of course, and US authorities are less likely to be asked to intervene there than Canada, where both North American nations share more than 5,000 miles of border. And as the treat of terrorist attacks remains present and a desire for these units to team up grows too, new rules would ensure that it’s more than just the FBI that’s regularly racing back and forth across the border.

“I think in terms of the next decade or so, we’d certainly like to see the evolution of integrated cross-border law enforcement. We’d take our crime-fighting capability to the next level, which is bringing the [maritime] concept to the land environment,” said Oliver.

The Globe and Mail reports that Canadian authorities continue to investigate the two suspects apprehended earlier this week, and that a third suspect — a man living in the States — has been questioned there by the FBI.