“Battlefield evidence” collected in Syria has begun appearing in Canadian courts in cases against suspected ISIS members, a Global News investigation has found.
Seized from captured combatants, ISIS documents and electronic files are being used for the first time in Canada to overcome the challenges of holding so-called foreign fighters to account.
The materials, which have now surfaced in courts in two provinces, are the product of Operation Gallant Phoenix, a U.S.-led effort to share what is known as collected exploitable material (CEM).
CEM is evidence found on the battlefield, and can include paperwork and data harvested from the pockets, phones and laptops of fighters taken prisoner during combat.
It is part of an attempt to address a major national security problem for Canada: How to bring to justice those who participated in ISIS in Syria and Iraq.
Such evidence has already been used to convict ISIS members in the United States, but experts and officials said it faces hurdles before it is treated as reliable in Canada’s courts.
A Global News investigation found the RCMP has already put CEM before the courts in British Columbia and Alberta, against suspected ISIS members who have returned from Syria.
In two of the cases, police asked the courts for terrorism peace bonds to restrict the movements of ISIS women in the name of public safety. Both cases were successful.
But Crown prosecutors have not yet tested CEM in a criminal trial, and a senior RCMP officer said work was underway to use it to bring charges against Canadians who participated in ISIS.
In an exclusive interview with Global News, RCMP Assistant Commissioner Brigitte Gauvin said police had “been utilizing CEM, which is collected exploitable material.”
“We’ve made a lot of progress in obtaining that evidence, and we are working on a framework to be able to utilize it as evidence in court,” said Gauvin, the head of national security investigations.
She said it was being used to identify the crimes of those the government calls Canadian extremist travellers (CETs), who left the country to take part in terror groups like ISIS.
“CEM is very important as it kind of paints a picture, or gives us the knowledge of the role and activities CETs would have perpetrated while in the conflict zone.”
“We are continuously requesting that type of evidence along with other information or intelligence that we can use to advance our investigations,” Gauvin said.
“It hasn’t been used in prosecutions or tested in court yet, but we’re definitely prepared to do so.”
Although Canada has been putting terrorists on trial for the past two decades, in some cases for what they did in war zones, prosecutors have not yet relied on battlefield evidence.
“This is the sort of evidence we haven’t seen yet,” said Michael Nesbitt, a leading national security scholar and associate dean at the University of Calgary law school.
He said it could be a boon to prosecutors, but they will have to establish how it was collected and got into the RCMP’s hands.
“The question, as always, will be the authenticity of the evidence.”
Prosecutors may have to file affidavits attesting to the origin of the papers and their continuity, meaning where they were found and how they were passed from agency to agency.
In the two cases in which CEM has already been filed in Canadian courts, the RCMP provided a description of the “capture circumstances” for each document.
The use of CEM may be particularly effective against ISIS members since the terror group kept voluminous bureaucratic records, partly because it had to govern the areas it occupied.
Foreign terrorist fighters leave “trails of evidence” that can be “a goldmine for prosecutors and investigators, said Matt Blue, the chief of the U.S. Justice Department’s counter-terrorism section.
Materials picked up on battlefields are being analyzed, catalogued and shared, he said in a speech in April. “Knowing how much evidence we’ve collected over the years, I know we can bring many more individuals to justice for their criminal activity.”
Last year, such evidence was used to convict Emraan Ali, an American who served in ISIS.
“Foundational to the criminal charges against Ali was evidence in two logbooks and two hard drives collected by U.S. authorities,” Blue said.
The government’s push to use it in Canadian courtrooms comes amid a series of arrests in Ontario and Quebec over the summer that served as a reminder that ISIS remains a threat.
On Sept. 4, the RCMP arrested Muhammad Shahzeb Khan in Ormstown, Que. A Pakistani in Canada on a student visa, he was allegedly on his way to New York to conduct a mass shooting for ISIS at a Brooklyn Jewish centre.
A Toronto minor was charged in August with terrorism offences allegedly related to ISIS, and a father and son originally from Egypt, Ahmed and Mostafa Eldidi, were arrested in July as they were allegedly preparing to carry out a mass stabbing for ISIS in Toronto.
The evidence against the father includes a video in which he is allegedly seen in Iraq, using a sword to hack the feet and hands off a prisoner suspended from a crucifix.
In addition, in July a British court convicted Edmonton resident Khaled Hussein of belonging to Al-Muhajiroun, a terrorist group headed by pro-ISIS preacher Anjem Choudary.
But of the nine women who were allegedly part of ISIS and have returned from Syria to B.C., Alberta, Ontario and Quebec, just three have been charged.
Several other Canadian ISIS women have not yet come home, and Kurdish fighters are still holding at least four Canadian men who were captured during fighting in Syria.
In the absence of charges, the RCMP has been using terrorism peace bonds, which have a lower burden of proof, to limit the threat posed by the returning women.
In one such case, the RCMP evidence filed in court includes “Collected Exploitable Material” about Edmonton resident Aimee Vasconez. The RCMP said it was provided by the FBI.
The CEM includes Islamic State documents recovered by Kurdish fighters in Tabqah, Syria, that name ISIS women, their aliases, husbands, countries of origin and dates of birth.
Within those documents was a ledger that recorded the names of foreigners who entered ISIS-controlled territory in March 2015. Vasconez and her late husband Ali Abdel-Jabbar were allegedly listed.
The FBI also gave the RCMP materials taken from ISIS members fleeing the Euphrates River Valley in February 2019, including Vasconez’s application for military training.
The evidence was used by the RCMP’s Integrated National Security Enforcement Team in Alberta to obtain a warrant to arrest Vasconez when she returned from Syria last year.
The court records show the materials were part of Operation Gallant Phoenix, which the RCMP said was launched “to consolidate and disseminate evidence gathered from the conflict zone in Syria and Iraq.”
Canada has never acknowledged being part of Operation Gallant Phoenix, and Gauvin declined to discuss specifics about the sharing of CEM, saying “there are some sensitivities surrounding that.”
“But definitely, the ongoing collaboration and increased collaboration with our foreign partners, especially the Five Eyes, in this area, and the sharing and the use of CEM has definitely been an important tool for us to be able to advance those investigations.”
Operation Gallant Phoenix began in 2013 as a way to “track the flow of foreign terrorist fighters in and out of Iraq and Syria,” according to the website of the New Zealand Defence Force.
“It has since evolved into a platform where partners collect and share information about potential and existing terrorist threats, regardless of the ideology behind those threats.”
A second ISIS suspect, Kimberly Polman of Squamish, B.C., was arrested upon returning to Canada in a case based partly on CEM, according to court records.
The evidence against her included an Arabic notebook that listed women inhabiting an ISIS guesthouse in Syria in 2015. The RCMP obtained the notebook from the FBI, which got it from the U.S. Defense Department, according to the court records.
The U.S. has collected 300 terabytes of CEM, ranging from fingerprints and diaries to letters and data on fighters, according to the West Point Combating Terrorism Center.
“CEM holds great potential and has been used in important ways to investigate and prosecute foreign terrorist fighters, screen and watchlist terrorist suspects, or deny travel,” it said.
The U.S. Justice Department counter-terrorism chief, Blue, said the U.S. had amassed “an extraordinary volume of collected exploitable material and battlefield evidence.”
“And every day, highly trained analysts and investigators sift through that evidence — carefully analyzing it and cataloguing it for retrieval and sharing.”
