This morning, a veritable who’s who of Canada’s leading jurists and public officials issued a powerful statement calling for robust national security review and oversight. This case for accountability comes from a group of former Prime Ministers, Ministers of Justice, Solicitors General, Supreme Court of Canada justices, and members of national security and privacy review bodies – in short, Canadians for whom public safety, rule of law, and public accountability aren’t just abstract principles. These are individuals who, during their tenures in public service, were responsible for maintaining national security and for ensuring that government conduct was sound in both law and policy. And their conclusion is that Canada’s impoverished national security accountability regime “poses serious problems for public safety and for human rights.” This call for national security accountability comes at a crucial time when Canada is considering a breathtakingly radical expansion of its national security laws in Bill C-51, the Anti-terrorism Act, 2015.
Better accountability means better security.
As today’s statement makes clear:
“Canada’s national security policies and practices must be effective in order to protect public safety. Independent oversight and effective review mechanisms help ensure that resources devoted to national security activities are being utilized effectively and efficiently. The confidential nature of national security activities means that it is more difficult to rely on the usual public checks on government performance, such as scrutiny from Parliament, civil society, media and the general public. Security-cleared review bodies play crucial roles in catching and correcting operational and structural problems before they become full-blown national security failures, leading to better security for Canadians.”
One of the key ways of making sure that security agencies are doing their jobs effectively, efficiently and lawfully is by examining their activities through review and oversight.
Independent review can, for example, tell us that there are flaws in some of the methods CSIS uses to confirm the value or reliability of foreign intelligence. This was a finding in the 2013-2014 Annual Report from the Security Intelligence Review Committee (SIRC), CSIS’s external review body. Misinterpreting the value, relevance or reliability of intelligence can have serious consequences for public safety. Time could be wasted in chasing down false leads. Resources might be diverted away from actual threats.
Real-time oversight also plays an important role. It can, for example, alert Ministers or Parliament to potentially illegal or controversial activities that might undermine public trust in our national security agencies, or expose agents to unnecessary risk or legal liability.
An “all of government” approach to security means that we need an “all of government approach” to accountability.
Again, from the statement:
“Canada needs independent oversight and effective review mechanisms more than ever, as national security agencies continue to become increasingly integrated, international information sharing remains commonplace and as the powers of law enforcement and intelligence agencies continue to expand with new legislation.”
Since 2001, we’ve seen increased inter-agency cooperation across all sectors of government when it comes to addressing national security concerns. However, cross-agency accountability has not developed in parallel. We have, on the one hand, efforts being made to facilitate government agencies working cooperatively, sharing information, and engaging in joint investigations and operations. On the other hand, we have all the review bodies (like SIRC, the CSE Commissioner, the Complaints Commission for the RCMP, and so forth) still siloed and segregated into their own narrow jurisdictional confines, for the most part. This lopsided development of the national security apparatus has resulted in an accountability deficit.
Here is why integrated review is so important. Long-time readers of these pages may remember that our National Security Blog got its start covering the Afghan Public Interest Hearings at the Military Police Complaints Commission (MPCC). Like very many of Canada’s review bodies, the MPCC has a narrow jurisdictional mandate; in the same way that SIRC is only permitted to review the activities of CSIS and the CSE Commissioner is only permitted to review the activities of CSEC, the MPCC is only permitted to review the activities of the Military Police, the policing arm of the Canadian Forces.
What that meant for the Afghan Public Interest Hearings – which were held in response to complaints brought by the BCCLA and Amnesty International following Canadian transfers of Afghan detainees to risk of torture – was that the Commission could only consider the role of the Military Police in detainee transfers. Any accountability achieved through this procedure would be limited at best, given that detainee transfer was an “all of government” operation.
What do we mean by an “all of government” operation? For example, detainee transfer policies were developed at the Ministerial level in Ottawa. Detainees were captured by members of the Canadian Forces. Afghan prison visits were conducted by what was then known as the Department of Foreign Affairs and International Trade (DFAIT). The Military Police maintained the Canadian detention facilities. The Correctional Service of Canada provided expertise on prisoner handling. The Canadian Forces commander in Afghanistan made each individual decision to transfer. The Military Police effected the actual transfer itself. Post-transfer detainee tracking and monitoring was conducted by DFAIT. (We’ve bolded the activities that the MPCC was permitted to review.) The MPCC’s jurisdictional limitation meant that the Commission had to do its work with incomplete information, and that it could not truly investigate (let alone draw any conclusions concerning) anything beyond the Military Police’s limited role in the affair. As you can see, this left a lot of gaps in the accounting.
Likewise, national security activities have increasingly become “all of government” endeavors. And if the Security of Canada Information Sharing Act in Bill C-51 becomes law and barriers between cross-agency information sharing are essentially torn down, virtually any security-related activity in Canada has the potential of involving “all of government.” An all of government approach to operations demands an all of government approach to accountability.
Canada has gone for too long without robust oversight or meaningful review over some of the most important and sensitive activities of any government – what it does to protect public safety and national security. We need better national security accountability, and we need it now.
*** There are now two bills in Parliament (C-44 and C-51) seeking to dramatically (and dangerously) expand government powers relating to security. Our Parliamentary submissions on Bill C-44 are here. We’ll be unpacking Bill C-51’s provisions in upcoming posts: first up, the Security of Canada Information Sharing Act. In the meantime, law professors Kent Roach and Craig Forcese have been publishing “real time scholarship” on Bill C-51 over at www.antiterrorlaw.ca. Their legal analysis is essential reading.