Published on the National Security Law Blog, January 31, 2015
The new antiterrorism bill will change everything. Among other things, in its sweeping changes to CSIS’s powers, it is not tinkering at the margins. It rejects insight from experience, and the wisdom of those who enacted the original CSIS Act. I will be doing very little over the next few months except working on assessments, and where warranted (and it is warranted) critiques of this entire (misleadingly billed) “antiterrorism” law project.
I start here with history and CSIS.
Yesterday’s parliamentarians seemed to know in their bone and sinew that the powers of any security service must be surrounded by a high wall, protected by a moat and closely guarded by well-staffed and resourced watch towers.
In 1983, Parliament rejected the original Trudeau CSIS act, at the height of Cold War. It was too controversial. A senate committee totally renovated the project and the new government accepted most changes, enacted just as the 1984 election loomed. Although imperfect (especially in relation to the accountability regime), the law lasted 30 years: the Cold War, the fall of the Berlin Wall, 9/11, the Afghan war. But it seems it will perish in the wake of a single AQ-inspired homicidal driver, and a troubled man with a gun whose motives are apparently known only to the police through an unreleased video.
They had their flaws, and their partisanship, and their deeply held differences. But those parliamentarians of the 1980s who enacted the CSIS Act had in their hands the McDonald Commission report documenting the patently illegal activity of the RCMP security service. In the most famous incident, the RCMP burned down a Quebec barn to pre-empt a meeting between members of the Black Panthers and Quebec separatists. But many other ‘dirty tricks’ (that is, illegal disruption and investigative tactics) were carefully documented. Those contemplating ‘might be’s’ in relation to the new amendments should re-read the McDonald Commissions studies. I will be.
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More than this, those parliamentarians confronted a real, existential menace in the form of a nuclear armed totalitarian enemy, equipped with a brutal and repressive political police apparatus.
Yesterday’s parliamentarians seemed to know in their bone and sinew that the powers of any security service must be surrounded by a high wall, protected by a moat and closely guarded by well-staffed and resourced watch towers. And these powers must be limited. Broad mandate must be countered by limited powers. To do otherwise was to risk too much. Parliamentarians need not have presumed ill-will by those in the security service, but they appreciated the long human experience of little evils done for a good cause accumulating to become the greater evil. Events in the United States after 9/11 — so graphically outlined in the U.S. Senate torture report — are proof of their insight.
- Wesley Wark, The Anti-Terrorism Legislation Has Lkely Been Oversold
- Craig Forcese, Limiting Foreign Fighting by Canadians: Stop-Gap Legal Measures
- Daniel Livermore, Three Missing Pieces in the Canadian Security and Intelligence Debate
Those lawmakers of yore would have raised the roof of the Chambers of Parliament, confronted with a law that combined their broad concept of ‘security of Canada’ in the CSIS Act with new powers to break the law, undertaken by a weakly-reviewed clandestine security service. Many would have gaped in open-mouthed astonishment at a system that enlists judges as enablers of illegality, not firm guardians of the rule of law.
Today’s judges will also be wide-eyed, with varying degrees of amazement and horror.
But will our current parliamentarians recognize danger when they see it, and wonder at how we are losing our way? And will the electorate remember the days of the 1980s, when legislators had the courage to resist a deeply flawed law project, and to force a rethink for the public good?