Trust Us. We’re in the business of national security. In our war on terrorism, this now familiar refrain comes from every quarter of our national security establishment.
National security activities of the RCMP, CSIS and other such agencies are top top secret.
To a significant degree, this is understandable. Terrorists do unthinkable things and operate in the shadows. Countering terrorism effectively requires a commensurate degree of stealth.
But in democratic societies, where transparency and accountability to the sovereign citizen is the norm, this degree of secrecy is an anathema. Almost no one outside of these agencies knows what they are doing. Yet what they do can have profound consequences for the liberty of Canadians and non-Canadians alike.
Just ask Maher Arar, the Canadian born in Syria who, extradited by the United States to Syria, possibly with the complicity of Canadian officials, languished in jail for a year subject to the interrogation tactics of a regime well known for its use of torture to extract information from prisoners.
The Arar inquiry’s “public hearings” recently resumed after a hiatus of almost nine months. Regrettably, testimony from government officials will remain only a small part of the story.
Owing to the federal government’s continued — and unreasonable — claims to national security confidentiality regarding RCMP and CSIS testimony, the Canadian public will not hear the lion’s share of the story. Worse, Arar may never testify at his own public inquiry because of this unprecedented secrecy.
Never mind that the Arar commissioner, Dennis O’Connor, associate chief justice of Ontario, wanted to release a summary of the CSIS information to Arar and the public that, in his opinion, would not harm national security.
Ignore the fact that Ron Atkey, a lawyer advising the Commissioner and the former chair of SIRC, the civilian agency that reviews the work of our spy agency CSIS, agreed with the commissioner’s opinion.
Consider that the government wanted to release only the list of questions posed to security officials and none of the answers. For now, the feds’ legal maneouvres involving national security confidentiality have rendered a public inquiry mostly private.
This legal posturing is enabled by our law. After 9-11, our laws were amended to allow the federal government an absolute veto over public disclosure of national security information. Even if the matter made it to the Supreme Court of Canada and the justices carefully examined the information and thought that its public release would not harm national security, the federal government could veto the opinion of the court — a notwithstanding clause without the hassle of a constitutional amendment. So much for transparency and accountability.
Regrettably, the Arar inquiry isn’t the only process saddled with such secretive tactics by the federal government.
Security certificates are issued to foreign nationals in Canada who are considered a threat to national security. Persons subject to security certificates have no direct access to evidence against them to challenge their detentions, again on the grounds of national security confidentiality. In the meantime, five Muslim men have languished in Canadian jails for a collective 14 years awaiting decisions about their status. Canada’s very own gulag.
Don’t misunderstand us. Even truly democratic governments must be able to retain the confidentiality of legitimate, sensitive national security intelligence.
Our concern is that we have a federal government that appears ready to play the national security confidentiality card at will, legitimate or not. Moreover, since 9-11, new anti-terrorism laws have made it easier for government to play that card with less or no effective independent review.
What to do?
The key to balancing liberties with national security is to ensure that there are effective procedures to assess the legitimacy of governments’ claims to confidentiality and to protect against the abuse of those claims.
Those procedures must include advocates who have access to the top secret information and who can effectively test the government’s claims to secrecy. These safeguards are just as important for the general review of national security activities of the RCMP, CSIS, Canada Border Services Agency and other agencies.
The conundrum is that these procedures must almost always also be in secret until a final order is made to ensure no truly confidential information is leaked.
One novel approach to meet this challenge is to create a federal Civil Liberties Ombudsman. We have proposed this idea to the Arar inquiry, which is looking at how best to review the national security work of the RCMP.
The mandate of the CLO would be to promote and protect civil liberties, the rule of law and Charter values in the context of national security. This official would advise the government and audit other review agencies like SIRC to make sure that civil liberties receive the attention they deserve.
The CLO would be an independent officer of Parliament like the auditor-general. We see the CLO’s office as lean and mean, not as another large cog in the bureaucratic chain.
As both the Senate and House of Commons review anti-terrorism legislation, we believe that we are at an important crossroads in Canada.
Are we going to permit the government to cry wolf as it pleases?
Or are we going to make sure that our trust is always earned?
Jason Gratl is president of the B.C. Civil Liberties Association, Murray Mollard is its executive director.