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The Stalemate over National Security Accountability

By Wesley Wark
University of Ottawa

Political and public attention to questions of ‘watching the watchers’ has been energized by the debate over new anti-terrorism legislation, Bill C-51, and by rising concerns about threats posed by global, transnational terrorism. Serious questions have been raised about the capacity of existing Canadian accountability mechanisms to keep proper tabs on a fast-expanding security and intelligence sector of government, one shrouded in secrecy and with growing intrusive powers driven by new technological capabilities. There are contextual worries about whether Canada is losing sight of the necessary balance between security imperatives and the protection of democratic rights and privacy.

While this attention to intelligence and security accountability is unusual for Canada, it also represents a historic moment of opportunity to consider changes to an accountability system that has remained in stasis over the past fourteen years, since the 9/11 attacks.

 

Politics aside, the reality is that the Canadian accountability system for security and intelligence is a Swiss cheese, with big gaps throughout.

But opportunity faces political stalemate. In the face of many authoritative calls for change, including a highly unusual public letter penned by four former Canadian prime ministers, the government has held fast. Its resistance to change is rooted in an expressed belief that existing mechanisms are adequate and that proposals for change would merely over-burden the Canadian security and intelligence community.

Government arguments have been three-fold. One tack denies the capacity of Parliament to usefully increase its scrutiny of security and intelligence on the grounds that Parliament is not sufficiently independent (e.g. non-partisan) and not sufficiently expert in such matters. A second line of argument relies on the notion that existing external review agencies, in particular the Security and Intelligence Review Committee, are more than capable of fulfilling the necessary watchdog role. The third argument, however strange it might sound in the mouth of the current government, is that strong judicial oversight will ensure that the balance between security imperatives and democratic rights is preserved.

Opposition parties have pounced on the government position, with the Liberals in particular calling for the creation of a new Parliamentary oversight capacity and the New Democrats decrying the government’s notion of the adequacy of existing review mechanisms and arguing that judicial oversight, however valuable, cannot fully guarantee Canadians’ rights in the face of expanded surveillance .

Opposition parties sense that they are on strong ground here, a perception supported by some polling data that, while it continues to indicate majority Canadian support for the new anti-terrorism legislation, also indicates high levels of support for strengthened accountability.

Politics aside, the reality is that the Canadian accountability system for security and intelligence is a Swiss cheese, with big gaps throughout. The worst gaps are easy to identify:

a) insufficient internal oversight at the top, in the form of ministerial accountability
b) the absence of review coverage of the entirety of the expanded Canadian security and intelligence community, or even all of its key components
c) the inability of Parliament to properly scrutinize security and intelligence; and
d) the weak public legitimacy of the elements of the existing accountability system.

A word on each of these gaps. The strength of ministerial accountability is difficult to measure outside the machinery of government. But there are worrying straws in the wind that suggest that ministers of key national security portfolios (i.e. Public Safety and National Defence) may be insufficiently engaged and insufficiently knowledgeable about the operations of intelligence and security agencies in their portfolios, and that ministerial policy direction may be inadequate. This problem is compounded by the absence of any Cabinet-level committee on national security, and the absence of any high-level machinery to deal with emergency issues. (In the UK, by contrast, COBRA brings together the prime minister, key ministers and intelligence and security agency heads.)

In the absence of ministerial level committees and emergency management structures, the musculature of ministerial accountability can easily wane. The rarity of substantial public statements by ministers about national security threats, and about the operations of Canadian security and intelligence agencies in response, further compounds the problem.

 

Existing review mechanisms for this activity have simply not kept pace with change

In considering the absence of sufficiently broad external review capacity of the Canadian security and intelligence system as a whole, we have to acknowledge two facts. First, the Canadian security and intelligence system has been radically transformed since the 9/11 attacks and is now better resourced, more capable, more powerful and more significant to decision-making than was ever the case prior to 2001. Second, it is also more intrusive and poses greater challenges to the maintenance of the security-rights balance.

Yet, in the nearly fourteen years since the 9/11 attacks, the existing review mechanisms for this activity have simply not kept pace with change. They remain largely as they were constructed—in the case of the Security Intelligence Review Committee, a construction that dates back to 1984 and the passage of the CSIS Act; in the case of the review body responsible for the Communications Security Establishment, the CSE Commissioner, the date of origin is 1996 (post Cold War to be sure, but still pre the 9/11 age). No new resources have flowed into the system; at best, such resources have flat-lined, if not declined. No new mandates have been provided to allow for wider strategic coverage, despite the 2006 recommendations provided by the Arar Inquiry report on new national security review mechanisms, which were a product of lengthy study led by Justice O’Connor. The existing review bodies remain not just under-resourced, but siloed, unable to reach beyond narrow mandates for study that limit their watchfulness—to CSIS in the case of SIRC, to the CSE Commissioner in the case of CSE and (in more marginal and less tested) fashion, to the newly named Civilian Review and Complaints Commission (CRCC) in the case of RCMP national security operations

One illustration of the gap between reviewed and non-reviewed government bodies can be seen in the listing of entities to be included in the proposed national security information-sharing regime under Bill C-51. The list includes 17 entities, of which only three (CSIS, CSE and RCMP) are subject to some form of independent external review. The list of non-reviewed entities includes the Canada Border Services Agency, the Department of National Defence/Canadian Armed Forces, the Department of Foreign Affairs, Trade and Development, the Department of Public Safety, and the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). All have important intelligence and national security mandates and functions.

 

Parliament is currently a weak actor in the Canadian national security accountability system.

Parliament is currently a weak actor in the Canadian national security accountability system. There are standing committees of both the House of Commons (the Standing Committee of Public Safety and National Defence) and the Senate (Senate Standing Committee on National Security and Defence) whose mandates include issues of security and intelligence. But several things are worthy of note about the current committee system. One is that the mandates of both existing committees are very broad (including Defence) and not just focused on intelligence and security matters. The second is that the membership of these committees is chosen in the usual manner of jockeying among the parties and does not involve considerations of expertise on the part of MPs and Senators (which may help explain their frequent descent into partisanship). The third is that these committees have only minimal research expertise at hand, relying on assistance from the staff of the Library of Parliament. Their budgets are constrained. And if this list was not long enough, the biggest problem they face is that the MPs and Senators who sit on these committees are not security cleared, so they have no access to classified briefings and classified documents. These are committees seeking to understand the secret world without having access to the secret world.

As has often been pointed out, Canada stands apart from the practice of many of our close allies and partners (especially in the Five Eyes intelligence community) by not having any dedicated security-cleared Parliamentary body to engage in review of security and intelligence agencies. Among Westminster-style legislative bodies, the United Kingdom has its Intelligence and Security Committee, with a recently expanded mandate; Australia has its Joint Committee on Intelligence and Security; and tiny New Zealand punches above its weight with a Parliamentary Intelligence and Security Committee.

There are many models out there to choose from and best practices to adapt to Canadian needs, but we have done none of this. The most recent effort to establish genuine Parliamentary scrutiny of security and intelligence was the private member’s bill C-622, introduced by Joyce Murray, the Liberal defence critic. It was two-part in nature, aimed at improving the accountability and transparency of CSE, as well as creating a committee of Parliament to scrutinize intelligence and security matters more broadly.

In Ms. Murray’s private member’s bill, the mandate of a proposed committee of Parliamentarians was three-fold:

a) review the legislative, regulatory, policy and administrative framework for intelligence and national security in Canada
b) review the activities of federal departments and agencies in relation to intelligence and national security; and
c) report publicly on its activities, findings and recommendations.

This would have provided for what Craig Forcese and Kent Roach aptly describe as ‘pinnacle’ review, of the sort missing not just in Parliament but in all the external review mechanisms of the current accountability system. However, Bill C-622 was voted down by the Government majority at second reading in the House in September 2014.

A proper Parliamentary review capacity would, admittedly, not be easy to engineer, even if one were established through legislation. Membership on any such committee would need to be carefully considered, and it would be a challenge for Parliament to set aside partisanship, as any such committee must. The committee’s reporting would inevitably be hampered by official secrecy constraints, and special resources in terms of security-cleared staff and budgets would be required.

 

Public legitimacy is an important question, one often overlooked in the current debate on strengthening accountability.

But should we worry that such a committee would simply disappear down its own rabbit hole of secrecy, leading, as Philippe Lagasse has opined, simply to “a select group of parliamentarians knowing more about national security affairs, but the public knowing, and perhaps caring, less”? The answer to that is, I think, no—based on both the experience of other established Parliamentary or legislative bodies among our close allies, and on the self-interest of Parliamentarians and Parliament itself.

Public legitimacy is an important question, one often overlooked in the current debate on strengthening accountability. Such public legitimacy stems from knowledge and trust, but existing review bodies have failed to generate much public knowledge or capture necessary public trust. Bodies such as SIRC and the CSE Commissioner issue public annual reports to Parliament, often tabled at times when Parliament is in recess. These annual reports engage only limited (if any) Parliamentary attention and only flashes of media coverage.

The fault might be supposed to lie in a lack of public interest, or lack of a sensational story line. But in reality, I think, the fault lies in the nature of the reporting by the review agencies themselves. They are torn as to their real audience: is it the agencies they are responsible for reviewing (in the hope that their recommendations will be treated with respect) or is it the public? They have not found effective communications strategies, tangling their reports in euphemistic language and obscurity (allegedly prompted by the constraints of official secrecy). They tell a discontinuous story, with each annual report a new birth launched without the context of past trends or past issues.

Weak public legitimacy severely hampers the ability of a review body to speak with an authoritative voice, especially in moments of national security crisis. This became a problem for the CSE Commissioner as his office was thrust forward by the Harper government in an effort to explain that CSE remained engaged in wholly lawful surveillance amidst an outpouring of Edward Snowden leaks (some bearing on Canada) that appeared to tell a very different story. On the SIRC side of the equation, the Canadian public is more likely to know that it was once led by a political appointee of the Harper government (Arthur Porter, who now languishes in a Panamanian jail) than anything about the substance of its reporting in recent years.

As easy as it might be to identify the most serious gaps in Canadian accountability, the fact remains that no breakthroughs can be expected given the political stalemate generated by partisan debate over Bill C-51. Does this mean that we will miss an historic opportunity for change, to redress slipping accountability capacities and restore the Canadian system to a lustre it once enjoyed as one of the leading democratic experiments in intelligence and security accountability?

The hopeful answer might be: not necessarily. If we can’t expect imminent change or improvement, we can at least engage in ongoing purposeful study of the issues. Sometimes there can be more than cynicism to the reflex to punt a complex issue over the (short) political horizon. In the case of changes to democratic accountability for security and intelligence, punting might be valuable. The new Rome of accountability won’t be built in a day.

 

Further study might bridge the gap between the necessity for change and the current political stalemate.

What would constitute purposeful study? Here are two suggestions. One is a dedicated Parliamentary review of the matter, conducted by one or both of the House and Senate. The other is the creation of an independent external body of experts to study the accountability waterfront. Both endeavours would have as their purpose the collection and analysis of evidence about accountability gaps in Canada and the best practices of our close partners. Both would reflect on public requirements for accountability. And finally, both would be charged with offering, within a reasonable time frame, concrete recommendations for change to be presented as public reports to the Prime Minister and Parliament.

Further study is needed, would be beneficial and would capitalize on the opportunity of public attention. Further study might bridge the gap between the necessity for change and the current political stalemate. Even if our political system chose to consider further study as a form of punting the problem over the horizon, that too would be OK. The issues aren’t going away, and my bet is that they will be kept front and centre as all our major parties position themselves for a fall election when national security issues will be more prominent than at any time in recent memory.

Wesley Wark is Visiting Professor, Graduate School of Public and International Affairs at the University of Ottawa.