Canada’s intelligence agencies are regularly in the news for some failing or other, which critics decry as the beginning of the end of Canadians’ rights and freedoms. The agencies routinely respond that they are following the rules and are being closely monitored by independent review bodies, so there is nothing to worry about. What’s the truth here?
The big issue a year ago was a complaint from a judge on the Federal Court of Canada, which authorizes government intrusive surveillance activities, that the court had been “left in the dark” over the plans of one agency (Canadian Security Intelligence Service – CSIS) to ask another agency (Communications Security Establishment Canada – CSEC) to work with allied foreign agencies (members of the Five Eyes group) to track the communications of two suspected Canadian terrorists who had gone abroad. “Someone must answer for the spy agency’s attempt to game the courts”, intoned a Toronto Star editorial. “The global dragnet could have put the Canadians at risk at the hands of foreign security services.”
Another headliner was that CSEC, “the super-secret agency based in Ottawa” as Global News described it, had been “spying” on Brazil’s Ministry of Mines and Energy and perhaps sharing information with Canadian federal departments, even Canadian energy firms. The leader of the Official Opposition called it “the type of behaviour that we reproach other countries (for), often countries that have no rule of law, that have no need therefore to respect international norms. We’ve put ourselves in that lot with this type of behaviour.” The head of CSEC responded that his agency acts on behalf of the Canadian government, and that “Everything we do, and I mean everything we do, is reviewed by an independent CSE commissioner”.
More extreme still was the assessment of a Montreal-based group that the CSEC was “a vital tool of the Canadian ruling class that plays an important role in the pursuit of its imperialist foreign policy and in the surveillance and suppression of opposition at home.”
Is this all just more of the claptrap that passes for political discourse in Canada, or is there really something to worry about?
Mature and informed public discussion of intelligence practices ought to be routine in a country such as Canada – democratic, technologically advanced, and internationally engaged. But it is not. There are exceptions, for example commentary by the National Post’s insightful analyst Stewart Bell is valuable. But for the most part, discussion today usually features trumped up concerns about the erosion of individual privacy that are rarely balanced by objective recognition of the real threats to Canadian interests and to the security of Canadians. The exchanges that occur between parties tend to be acrimonious and truncated, invariably ending with simplistic prescriptions for further tightening the state’s grip on its intelligence agencies. It often seems Canadians worry more about themselves than they do about their country.There are a number of reasons why this might be so. First, government has abrogated its responsibility to publicly articulate a clear and comprehensive national security policy for Canada. The absence of such a policy not only leaves Canadians uninformed about what the government is trying to do, it also compromises the defences of the country by failing to promulgate the strategies necessary to implement that policy. Without policy, government is simply reacting to events, by instinct rather than as a result of reasoned forethought, like an invertebrate slouching along without really knowing why. Tactics without strategy, said the ancient Chinese strategist Sun Tzu, is the noise before defeat.
Second, the twin pathologies of “gotcha” journalism and partisan politics have created a pathological adversarial atmosphere, in which antagonists put their parochial interests ahead of the national interest. In such an atmosphere, it is decidedly difficult to have an informed, objective, and meaningful discussion about anything, let alone sensitive Canadian intelligence issues.
Third, in cases where reasonable discussion does occur, dialogue is typically muddied by a misunderstanding of relevant concepts, aggravated by erroneous or inappropriate use of important terms.
Resolving either of the first two issues is a monumental task, and certainly requires more space than is available here. But perhaps we can make a reasonable start at fixing the third.
The Canadian Intelligence Enterprise
Central to understanding the nature, direction and control of the Canadian Intelligence Enterprise is an appreciation of the fact that it is all provided for and governed by legislation, is directed by the Prime Minister and Cabinet, often requires the explicit approval of the Federal Court of Canada, and is overseen by several layers of internal and external scrutiny. It is fanciful to believe that organizations such as CSIS or CSEC are free to operate as they choose and to ride rough-shod over the rights and privileges of those they are in the business of protecting. This also goes for the intelligence staffs supporting the activities of such organizations as Public Safety Canada, the RCMP, the Canada Border Services Agency, the Department of National Defence, Foreign Affairs, and Transport Canada. No matter what form it may take, Canadian government intelligence activity is under tight legal and political control.
Notwithstanding, there are a great many who claim that the government’s intelligence enterprise is infested with sinister loose cannons operating at the edge of the law, protected by sycophantic bureaucrats dismissive of individual Canadians’ civil rights. Moreover, some preach that the whole operation needs a great deal more parliamentary, governmental, legislative, judicial and other means of independent scrutiny. Much of the feigned outrage masks the fact that the crankiest critics typically lack an understanding of the constitutional and legislative frameworks of intelligence scrutiny already in place. But it makes for dramatic headlines to allege that the Canadian Intelligence Enterprise’s public servants and the senior officials they report to are a lawless bunch.
Just what does “scrutinize” mean? Or, for that matter, how are some of the other terms employed so interchangeably and confusingly defined: responsibility, accountability, oversight, review? Indeed, these terms are best understood as paired partners: responsibility + oversight; accountability + review. Each pairing defines a relationship between the intelligence organizations and those around them: ministers, parliament, and the Canadian public. Responsibility (an attribute) is exercised by oversight (an activity). Accountability (an attribute) invites review (an activity). Let’s look at each in turn.
Responsibility and Oversight
In any hierarchical organization, such as a government, an army, a police force or a large corporation, the people holding executive positions are responsible for the execution of the tasks designated for their organization. Responsibility, then, flows from assigned authority to take action, typically in pursuit of predetermined goals, in accordance with known rules, and within prescribed operational parameters. Responsibility, in turn, is exercised through oversight, i.e. through planning and directing the designated tasks. Hence, oversight is the function of controlling activity before-the-fact and during-the-fact. Oversight includes such activities as formulating policy, issuing guidance or orders, monitoring the execution of those orders to ensure they are being implemented legally, efficiently and effectively – and taking the necessary corrective action when they are not.
Responsibility and oversight, then, are two sides of a coin. To be responsible for something implies having the authority to plan and manage it; a corollary recognizes that to exercise oversight of something requires assuming responsibility for what happens.
In a Western democracy such as Canada, parliament is sovereign and supreme. But to ensure the political neutrality and operational integrity of such sensitive work as intelligence collection, processing and dissemination, parliament is constitutionally and legislatively barred from exercising any direct oversight of intelligence activity, or of planning and conducting such activity, as it is for policing. These are the domain of ministers who provide direction to the deputy ministers and agency heads who have been assigned responsibility for loyal and professional implementation of that direction. In every case, there is a minister of the Crown responsible for the conduct of a government intelligence organization and a subordinate senior official responsible for achieving the goals of that organization. So there is a clear and well established line of responsibility from minister to agency head to agency operator.
It should be noted that inserting some individual or body, say an inspector general or a committee of parliamentarians, into this chain of command in order to exercise additional oversight of intelligence activity would compromise the constitutional and legislated responsibility of the minister involved for controlling and directing agency or departmental intelligence activity. In a democracy such as Canada, either a minister is fully responsible or (s)he is not.
This hierarchical structure, however, does not preclude various ministers, agency heads, and intelligence organizations from cooperating with one another, as the protection of national security and government direction may dictate. One would expect no less from those who share a mandate to protect Canadians. CSEC, for example, might acquire signals intelligence that should be shared with CSIS in pursuit of its counter-terrorism mandate; CSIS, in turn, might collect intelligence that should be disseminated to other organizations such as Public Safety Canada or the Canada Border Services Agency or the RCMP to help them in their work. In Canada, there are legal provisions allowing the intelligence assets resident in one department to operate under the direction of another minister in defined circumstances and usually under the authority of a judicial warrant, i.e. after an affidavit making the case for an operation has been prepared and presented to the Federal Court and the Court has approved. The Department of Justice, incidentally, reviews every affidavit before it goes to the Court.
In the realm of national security, aspects of current and future intelligence work are necessarily sensitive and usually highly classified. Consequently, given the before-the-fact and during-the-fact nature of responsibility and oversight, the work of the intelligence agencies, including their capabilities, methods and tradecraft are legitimately closely guarded, known only to those with responsibility and a “need to know”. This reality is not comforting for those convinced that Canadian intelligence organizations are running amok. But parliament is not completely shut out of government intelligence activity for there is always an after-the-fact exercise. This is where accountability and review enter the picture.
Accountability and Review
Accountability is the requirement to justify what you did or did not do in the exercise of your responsibility. In some respects, it acts in the opposite direction from responsibility – not top down but bottom up. Within a hierarchical organization, agents of the organization are accountable to the supervisory level immediately above them to whom they are obligated to explain the actions (or inaction) for which they are responsible. Within an intelligence organization, the chain of accountability and associated legal obligations flow from the intelligence practitioners to their agency superiors, who in turn are accountable to the head of the organization. The organizational chief is then accountable to the deputy minister and/or the minister to whom that individual reports. Ministers are accountable to colleagues in Cabinet and, constitutionally, to parliament. Government and parliament are accountable to the public they serve.
In addition to the constitutional accountability of ministers, parliament has legislated a number of additional bodies to which intelligence chiefs and ministers are also accountable. Under law, CSIS must account for its actions to the Security Intelligence Review Committee (SIRC), an independent external review body which reports to parliament. CSEC is accountable to the CSEC Commissioner – not to be confused with the CSEC Chief who runs the organization – who advises the Minister of National Defence and the Attorney General of Canada of any CSEC activity the Commissioner believes is not in compliance with the law. Both SIRC and the CSEC Commissioner have absolute authority to examine all information concerning the activities of the respective organizations, no matter how sensitive and highly classified the information may be. Additionally, all public servants, intelligence agencies and ministers of the Crown are accountable to the laws of the land.
Accountability requires that an individual be able to provide after-the-fact justification of how the responsibility accorded them has been exercised. Strictly speaking, only ministers are accountable to parliament and to the public for the intelligence activities of the departments and agencies for which they are responsible. Under Canadian law, it is ministers who must “account,” not departmental or agency heads or staff. But the custom has arisen of ministers approving the appearances of deputies, agency heads, and subordinate officials before parliamentary committees examining agency budgets or other matters. In extreme and rare cases, parliament holds the power to overrule a minister’s refusal to let a departmental or agency official appear before a committee.
The review of intelligence activity is a long-standing Canadian practice. Just like accountability, review is an after-the-fact function.
There are generally two aspects of review: review for efficacy (Are we getting what we have mandated?) and review for propriety (Is what the organization is doing legally and politically acceptable?). In the case of an intelligence agency, review for efficacy demands an evaluation of the accuracy and usefulness of the assessments being produced, while review for propriety examines the organization’s compliance with the legal and policy constraints within which it is supposed to operate. Both kinds of review are important, but it is regrettable that critics of Canadian intelligence practices have invariably ignored the issue of effectiveness and keyed almost exclusively on the issue of propriety – a not inconsequential contribution to the imbalance and distortion which afflicts discussion of intelligence matters in Canada.
Institutionalized review mechanisms exist in all government departments and agencies having an intelligence mandate, with the review function assigned to bodies operating at various levels of an organization’s chain of accountability. Reviews inside an organization are normally conducted by the equivalent of an “internal affairs” unit in a police force or by an independent inspector-general. While both are typically staffed by professionally competent individuals and expected to operate at arm’s length, neither is entirely “independent” in that they are ultimately accountable to the minister in charge.
Some are more effective than others. It is deeply worrying that for spurious “economy” reasons the government terminated the Office of the Inspector General (IG) of CSIS in 2012. The CSIS IG had been established under Section 30 of the CSIS Act of 1984 expressly “to monitor the compliance by the Service with its operational policies” and “to review the operational activities of the Service”. The intended effect of these functions was to provide the minister with a window on what CSIS was doing independent of reports the minister received directly from CSIS. The government subsequently argued that “to ensure a comparable degree of accountability” SIRC will be more diligent in briefing the minister.
Oversight vs. Review
For all the sound and fury associated with supposed threats to civil liberties and loss of privacy, too little sober thought has been given to reasonable ways of enhancing intelligence oversight and review in Canada. Two notable exceptions were the report of the O’Connor Commission of Inquiry into the Maher Arar affair in 2004 and the report of the Interim Committee of Parliamentarians on National Security also in 2004, both of which had some useful suggestions to make. Both, interestingly, opted for better review, not more oversight.
Justice O’Connor explained, in some detail, his preference for the former:
“Review mechanism” generally refers to a mechanism that assesses an organization’s activities against standards like lawfulness and/or propriety, and delivers a report of that assessment, with recommendations, to those in government politically responsible for the organization. Activities are usually examined after they have occurred … Review mechanisms are more appropriately seen as facilitating accountability: they ensure that the entities to which the organization under review is accountable, and the public, receive an independent assessment of that organization’s activities.
As explained earlier, responsibility and oversight go together, and they are constitutionally and legally required to remain exclusively in the hands of elected ministers of the crown and duly appointed civil authorities. Accountability and review, in contrast, provide the means by which those with responsibility are held to public account. It follows that enhancing review offers the most promising avenue for increasing democratic control.
There are several conceivable ways this can be accomplished, including obviously re-establishing the Office of the Inspector General of CSIS. Another suggestion has been to broaden the mandate of SIRC to review not only CSIS but also CSEC, and perhaps all government intelligence activity. At issue would be determining what exactly the new organization would be responsible for and to whom it would be accountable, as well as resolving a host of relationship, structure, and resources problems.
A third proposal came from the Interim Committee of Parliamentarians on National Security, calling for the creation of a Parliamentary Intelligence Committee with a remit to scrutinize not only all government intelligence activity but also the work of other review bodies.
Parliament is the ultimate guarantor of responsible security and intelligence operations in Canada, so its role certainly needs to be looked at as a priority. Just last year, Sen. Hugh Segal told a national intelligence conference that, for all the checks and balances in place, there is “zero legislative accountability”. By this he meant that Canadian parliamentarians, unlike their American and British counterparts, are unable, or unwilling, to deal head on with current security and intelligence issues, to have full access to confidential documents and to require agency personnel to appear before them. Even after-the-fact reviews, he said, were problematic.
The debate over the creation of a special committee of parliament to oversee intelligence activity dates back at least to the 1981 report of the McDonald Royal Commission which led to the establishment of the Canadian Security Intelligence Service. The fact that the debate stretches back more than 30 years suggests it is time to settle it once and for all. At the very least, parliament should take a serious look at its own members’ proposals in 2004.
Indeed, perhaps it is time we put a little more energy into holding parliamentarians to account for their lax approach to accountability and a little less into trying to find fault with intelligence agencies whose operational responsibilities these days are as weighty as they have ever been. In the final analysis, it is intelligence accountability and review that needs attention, not responsibility and oversight. Parliamentarians need to get involved in a serious way, but first they need to understand what they are talking about.