Three Missing Pieces in the Canadian Security and Intelligence Debate

The Harper government has been forced to introduce amendments to the CSIS Act, following another in a series of government set-backs in the courts on security and intelligence issues. This has triggered comments on the proposed legislation, most of which concern surveillance abroad, foreign intelligence and security and intelligence beyond Canada’s borders. It’s a ‘niche debate’ that has attracted the attention of security specialists. (See, for example, Craig Forcese’s analysis of the proposed legislation.) But the debate should be much larger, because three big issues, now largely ignored, should rightly be part of the discussions.

The first key issue, one of principle and practice, is the propriety of giving CSIS an expanded mandate in the area of foreign intelligence. Canadians may not know much about the intelligence world, but they should know that every major democratic country with intelligence interests at home and abroad assigns its respective domestic and foreign operations to different agencies, reporting to different ministers. There is good reason for this. Putting them in one big agency with gigantically intrusive powers is known as the ‘KGB model’, typically characterized by arbitrary acts and abuse of authority, as its nickname suggests.

Canadians worried about terrorism should take no comfort from the greater powers accorded an agency with little real accountability, no parliamentary oversight and a troubling track record.

Moreover, while domestic security and foreign intelligence may sound like similar functions, they are in fact exact opposites, with different methodologies, differing skills and different legal frameworks in democratic societies. Domestic security intelligence agencies function under tight discipline and strict laws designed to safeguard the rights of citizens from unwarranted and unduly intrusive investigations. Foreign intelligence involves deliberately breaking both international law and the laws of other states to acquire information deemed essential to national security. (On this point, both the Federal Court and the Federal Court of Appeal need better advice in order to understand the realities of foreign intelligence operations.)

The Canadian public and many parliamentarians are largely unaware of these distinctions, because our national interest in foreign intelligence has been minimal. But Canadian officials responsible for security need to tell truth to power. If they haven’t told their political masters why Britain’s two agencies – domestic and foreign – report to two different ministers in a system of multi-ministerial responsibility, then it’s time to do so. And if the Canadian government now believes that working covertly abroad is essential to Canadian security, we should be debating not an extension of the CSIS mandate but how to separate the foreign intelligence function from CSIS’s domestic jurisdiction, give it an appropriate mandate and assign it to an appropriate department headed by a different minister.

This isn’t a small matter. Just ask American officials how frightening the FBI might have become if J. Edgar Hoover had won his battle in the 1940s to acquire the foreign intelligence mandate eventually vested in the CIA.

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The second issue is parliamentary oversight and effective scrutiny in the area of security and intelligence. Canada is virtually alone among major democratic countries in not having a parliamentary committee devoted to security and intelligence issues, with parliamentarians cleared to receive classified materials and to debate sensitive issues. Canadians should ask how their Parliament can be expected to debate the current amendments to the CSIS Act when most of the Conservative, NDP and Liberal members do not have security clearances, cannot appreciate the nuances of the amendments, lack essential background information, and cannot call witnesses who might give them honest answers to clear questions.

For more than a decade, a small group of dedicated MPs have asked—without success—for a Parliamentary committee consisting of cleared individuals and a support staff with similar clearances. It’s not rocket science. The United States and the UK both offer workable models. The complexity of security and intelligence issues in this age of apprehension makes this an essential step in safeguarding proper practices and our democratic traditions.

The third issue is real accountability in security and intelligence. There is one guiding principle here: the more intrusive and powerful the agency, the greater its capacity for abuse and therefore the greater the need for strong review and accountability machinery.

This maxim seems to have been lost on the Harper government, which has moved in precisely the opposite direction. In 2010 it cut the Office of the Inspector General of CSIS, which constituted the most effective internal review mechanism among any of the agencies in Ottawa. And it refused to implement the recommendations of the O’Connor Commission looking into the Maher Arar situation.

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The remaining CSIS watchdog, the Security and Intelligence Review Committee (or SIRC), currently limps along with a few part-time ex-parliamentarians and a woefully inadequate budget. Its reports lack rigour and thoroughness. Most are not available to the public except in highly redacted forms which obscure more than they clarify. Astoundingly, the unredacted reports are not available to parliamentarians because parliamentarians are not cleared to see them.

There are further causes for concern in the weakness of the Office of the CSE Commissioner (who is supposed to monitor our electronic spying in Canada) and the absence of real oversight of the RCMP. Taken together, the lack of effective review of Canada’s security and intelligence community (and all its components) is something of a national disgrace—and worse still, a looming danger.

It makes little sense to pick away at the small bones of the CSIS Act present in the current amendments when larger issues go unaddressed. Canadians worried about terrorism should take no comfort from the greater powers accorded an agency with little real accountability, no parliamentary oversight and a troubling track record. Given that it has repeatedly been called on the carpet by the Federal Court for failing its “duty of candour”, we non-lawyers can construe the meaning as “deliberate concealment” if not something worse.

We are clearly heading down the wrong track. It’s a matter of urgency to adjust our course.

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