National security accountability – everyone says they want it.  But not everyone means the same thing when they use the language of “accountability”. 

The dangers of ‘faux accountability’ are always serious, but especially so on national security matters where secrecy can mask abuses and law breaking.

There has been a growing concern that what the government might mean by “accountability” is primarily the introduction of a Parliamentary Oversight Committee.  Bill C-22 is working its way through Parliament right now to create such a committee.  A Parliamentary Oversight Committee for national security matters is long overdue in Canada, but it is entirely inadequate as a means of achieving accountability.

What’s the Problem:

There is a public confidence crisis in national security agencies that appear to break the law with no consequences.  Law breaking by national security agencies is regularly rewarded by changes to laws that expand their powers even further.

Here’s what we need:

• a parliamentary oversight committee that has real powers to do its job;
• integrated expert review and monitoring;
• the repeal of “Bill C-51”; and,
• measured and evidence-based legislation going forward.

Fix Bill C-22

Bill C-22 would create a Parliamentary Oversight Committee.  The concerns about the bill as it currently stands include:

• The lack of independence of the Committee (which could be, and will certainly be seen to be, a mere extension of the Executive branch of government);
• The inability of the Committee to ensure it receives relevant information;
• The inability of the Committee to initiate independent investigations; and,
• The inability of the Committee to ensure substantially complete and robust reporting to the public.

Canada is currently proposing a model of committee known to be flawed and inadequate.  It is completely ridiculous to suggest that we take a wait-and-see approach to the kind of committee that is already an example in other jurisdictions of What-Doesn’t-Work.

In fact, we didn’t even need the evidence from elsewhere to know that a committee that can have its access to information vetoed by the very departments it is trying to investigate is one that is likely to be pretty darn unsuccessful in “overseeing”.

Implement the three-tiered model of accountability

In addition to Parliamentary oversight, Canada urgently needs adequately resourced, integrated expert review of all the national security agencies, including those that currently operate with minimal or no oversight, like Canada Border Services Agency (“CBSA”) and Financial Transactions and Reports Analysis Centre (“FINTRAC”).

Integrated expert review has been urgently called for as long ago as the 2006 O’Connor Commission report  into the detention and torture of Maher Arar. As national security agencies’ work becomes increasingly integrated, it is critical that the bodies that review these agencies have mandates to match, and aren’t prevented from investigating shared national security files and activities because they only have the narrow authority to review single agencies.

The final component of the three-tiered model of accountability is an independent monitor, like in the UK and Australia.  The independent monitor has robust access to secret information, and their job is to provide expert analysis of existing and proposed national security legislation.

This three-tiered model provides more accountability infrastructure than for most areas of government.  But it is necessary for two reasons:

1. National security is unique in the seriousness of the consequences of both failures and abuses, the degree of operational secrecy required, and the extent to which secrecy claims can be abused.
2. There is a crisis of accountability in Canadian national security agencies.

Crisis?  What crisis? 

There is a crisis of accountability in Canadian national security agencies.

The crisis is:

• the scandal of police and intelligence agencies spying on journalists.
• the Canadian government’s choice to stay silent in response to the sweeping surveillance disclosures by Edward Snowden (despite our indisputable involvement as a member of the Five Eyes intelligence coalition and the obvious implications for Canadians’ rights).
• Canada’s failure to implement the recommendations of three major inquiries on national security matters: one on the Air India tragedy and two on Canadians sent to other countries where they were tortured.
• CSIS breaching its duty of candour to the federal courts for ten years, and illegally collecting Canadians’ telecommunications metadata in violation of the CSIS Act.

That particular crisis was  actually Act II of a slightly earlier crisis… In that crisis the public discovered that it’s possible that every piece of Canadians’ personal information currently held in the CSIS bulk data holdings has been illegally acquired. The Security Intelligence Review Committee(SIRC) in its first ever audit of these data holdings found a complete failure to abide by the applicable legal standards.

(There’s more, but I trust the general outline is clear.)

However, the nature of the crisis is not just that bad things have happened in the national security sphere.  It is that when bad things are discovered, nothing happens as a consequence. 

It is increasingly evident that there is a culture of impunity in our national security agencies.

This should be no surprise given the habitual lack of repercussions for violations of the law.  It seems the government would be hard pressed to come up with examples of consequences brought to bear on national security personnel found to be violating the law.

Evidence suggests completely the opposite – law breaking as “law reform” – where the discovery that national security agencies are breaking the law leads quickly to changing the law to allow the agency do the illegal things it was caught doing.  That is, rewarding the violation, not punishing the violator.

This pattern of encouraging impunity has had a corrosive effect on public confidence.

Simply put, failures of accountability have created a negative feedback loop for worse and worse laws.  Tossing some elements of “accountability” into the mix at this stage is not going to remedy the dangerously flawed and over-broad laws that currently exist, and the further radical extensions being considered.

Repeal “Bill C-51”

No committee and no oversight bodies (however constituted) can make amends for, or provide meaningful accountability in the face of, dangerous and recklessly overbroad powers granted to agencies working within national security.

It is critical that the powers given to agencies involved in national security be measured, proportionate and demonstrably needed.  The radical expansion of powers that were introduced by “Bill C-51” (the Anti-terrorism Act, 2015) fails to meet this test.

The measures enacted as part of Bill C-51, which were never justified, present an even more serious danger to the rights and security of Canadians in light of the now-anticipated reshaping of US national security policy.

The consultation that is just now wrapping up has used the concept of “accountability” very narrowly.  But you don’t have to do the same. If you like, you can tell the government that your version of national security accountability includes a measured, evidence-based framework of laws at the outset.

You’ve got till Dec. 15^th.  Here’s some help:

• BCCLA’s full series on the national security consultation
• Open Media’s great tool for making your submissions

And please know, while the national security consultation ends mid-December, civil society’s work in national security accountability is not going to end.  Stay tuned for an active 2017 on this front.