“Battlefield evidence” collected in Syria has begun to appear in Canadian courts for alleged crimes against ISIS members, a Global News investigation has found.
Seized from captured soldiers, ISIS documents and electronic files are being used for the first time in Canada to overcome challenges in holding so-called foreign fighters to account.
The equipment, which has appeared in courts in two states, is a product of Operation Gallant Phoenix, a US-led effort to share what is known as a collection of expendable materials (CEM).
CEM is evidence found on the battlefield, and can include documents and data collected from the pockets, phones and laptops of combatants captured during combat.
It's part of an effort to address Canada's biggest national security issue: How to bring to justice those involved in ISIS in Syria and Iraq.
Such evidence is already being used to convict ISIS members in the United States, but experts and officials say it faces challenges before it can be considered credible in Canadian courts.
A Global News investigation found that the RCMP has already placed CEM before British Columbia and Alberta courts, against suspected ISIS members who have returned from Syria.
In two of these cases, the police asked the courts for peace bonds against terrorism to stop the movement of ISIS women in the name of public safety. Both cases were successful.
But Crown prosecutors have yet to examine CEM in a criminal case, and a senior RCMP officer said the operation continues to use it to prosecute Canadians who have participated in ISIS.
In an exclusive interview with Global News, RCMP Assistant Commissioner Brigitte Gauvin said police were “using CEM, collecting consumables.”
“We've made great progress in finding that evidence, and we're working on a framework to be able to use it as evidence in court,” said Gauvin, the head of national security investigations.
He said it is used to identify the crimes of what the government calls Canadian extremist travelers (CETs), who leave the country to join terrorist groups such as ISIS.
“CEM is very important as it paints a picture, or gives us information about the role and tasks that CETs could do while in the conflict zone.”
“We're always asking for that kind of evidence and other information or intelligence that we can use to further our investigation,” Gauvin said.
“It has not been used in prosecutions or tested in a court of law, but we are definitely willing to do that.”
A US-backed Syrian Democratic Forces fighter hits a man taken out of an ISIS stronghold, in Baghouz, Syria, on Feb. 22, 2019 (AP Photo/Felipe Dana, File).
Although Canada has been prosecuting terrorists for the past two decades, in some cases for what they did in war zones, prosecutors have not relied on battlefield evidence.
“This is the kind of evidence we haven't seen yet,” said Michael Nesbitt, a leading national security expert and dean of the University of Calgary's law school.
He said it would be helpful to prosecutors, but they would have to find out how it was collected and got into the hands of the RCMP.
“The question, as always, will be the authenticity of the evidence.”
Prosecutors may have to file affidavits proving the origin and continuity of the documents, meaning where they were found and how they were transferred from one institution to another.
In the two cases where CEM has already been filed in Canadian courts, the RCMP provided a description of the “circumstances of the capture” in each document.
The use of CEM may be particularly effective against ISIS members since the terrorist group keeps extensive records, in part because it has had to control the areas it lives in.
A logbook found in Raqqah, Syria, was used as 'battlefield evidence' against American ISIS member Emraan Ali.
US District Court
Foreign terrorists leave “trails of evidence” that can be “gold mines for prosecutors and investigators,” said Matt Blue, chief of the US Department of Justice's counterterrorism division.
Goods collected from battlefields are being analyzed, cataloged and distributed, he said in a speech in April. “Knowing how much evidence we've gathered over the years, I know we can bring more people to justice for their crimes.”
Last year, such evidence was used to convict Emraan Ali, an American who worked for ISIS.
“The basis of the charges against Ali was evidence found in two logbooks and two hard drives collected by US authorities,” Blue said.
The government's push to use it in Canadian courts comes amid a series of arrests in Ontario and Quebec over the summer that were a reminder that ISIS remains a threat.
On September 4, RCMP arrested Muhammad Shahzeb Khan in Ormstown, Que. A Pakistani in Canada on a student visa, he is said to have been on his way to New York to fight ISIS at the Brooklyn Jewish Center.
A Toronto teenager was charged in August with alleged ISIS-related terrorism charges, while an Egyptian father and son, Ahmed and Mostafa Eldidi, were arrested in July as they allegedly prepared to stab ISIS in Toronto.
The evidence against the father includes a video in which he was allegedly seen in Iraq, using a sword to cut off the feet and hands of a prisoner who was hanging from a cross.
In addition, in July a British court convicted Edmonton resident Khaled Hussein of belonging to Al-Muhajiroun, a terrorist group led by pro-ISIS preacher Anjem Choudary.
A Montreal woman who joined ISIS speaks to Global News in Syria in 2018. Now he is back in Montreal.
World News
But of the nine women who allegedly joined ISIS and returned from Syria to BC, Alberta, Ontario and Quebec, only three have been charged.
Many other Canadian ISIS women have not returned home, and Kurdish fighters are still holding at least four Canadian men who were captured during the fighting in Syria.
Apart from charges, the RCMP has been using anti-terrorism peace bonds, which have a low burden of proof, to limit the threat posed by returning women.
In one such case, RCMP evidence filed in court included “Collected Actionable Materials” about Edmonton resident Aimee Vasconez. The RCMP said it was provided by the FBI.
The CEM includes Islamic State documents found by Kurdish fighters in Tabqah, Syria, that name ISIS women, their nicknames, husbands, countries of origin and dates of birth.
Inside those documents was a notebook that recorded the names of foreigners who entered ISIS-controlled territory in March 2015. Vasconez and her late husband Ali Abdel-Jabbar were said to be on the list.
Battlefield evidence against Edmonton's Aimee Vasconez includes her request for weapons training.
Alberta Court
The FBI also gave the RCMP materials taken from ISIS members fleeing the Euphrates River Valley in February 2019, including Vasconez's request for military training.
The evidence was used by the RCMP's National Security Enforcement Team in Alberta to obtain an arrest warrant for Vasconez when he returned from Syria last year.
Court records show the equipment was part of Operation Gallant Phoenix, which the RCMP said was launched to “compile and disseminate evidence gathered from the conflict zone in Syria and Iraq.”
Canada has never agreed to be part of Operation Gallant Phoenix, and Gauvin declined to discuss the details of the CEM sharing, saying “there is some sensitivity around it.”
“However, continued cooperation and increased cooperation with our foreign partners, especially Five Eyes, in this area, and the sharing and use of CEM has been an important tool for us to be able to advance that investigation.”
Operation Gallant Phoenix began in 2013 as a way to “track the movement of foreign and domestic terrorists in Iraq and Syria,” according to the New Zealand Defense Force website.
“From now on it has become a platform where our partners gather and share information about potential and existing terrorist threats, regardless of opinions about those threats.”
Entry form for a Canadian arriving in ISIS territory, with Edmonton phone numbers.
A second ISIS suspect, Kimberly Polman of Squamish, BC, was arrested on her return to Canada in a case based in part on CEM, according to court records.
Evidence against him included an Arabic notebook that listed women staying at an ISIS guesthouse in Syria in 2015. The RCMP obtained the memo from the FBI, which it obtained from the US Department of Defense, according to court records.
The US has collected 300 terabytes of CEM, from fingerprints and diaries to books and fighter data, according to the West Point Combating Terrorism Center.
“CEM has significant powers and has been used in significant ways to investigate and prosecute foreign terrorist fighters, screen suspected terrorists, or deny travel,” the statement said.
A US Justice Department official, Blue, said the US had amassed “an extraordinary amount of material and war evidence.”
“And every day, highly trained analysts and investigators sift through that evidence – carefully analyze it and catalog it for retrieval and sharing.”
Stewart.Bell@globalnews.ca
