The following is the text of a presentation “Intelligence Accountability” given by Dr. Kurt Jensen at the annual Canadian Military Intelligence Conference (CANIC 2015) in Ottawa on October 30, 2015.
Canada has not done well on intelligence accountability over the past decade. Accountability structures have withered. The CSIS Inspector General was done away with to save lunch money. SIRC and the CSEC Commissioner continue to exist, both coping with substantial mandates and inadequate resources.
The incoming Liberal government has announced that it will repeal part of Bill C-51 – some aspects of the bill are not at issue – and introduce a House-Senate Committee reporting to the Prime Minister, a model long championed by former Sen. Hugh Segal. A corner may have been turned in the world of intelligence.
There is no argument against intelligence accountability in a democratic society. Actions by intelligence organizations may at times be contrary to the interests of the populace – or the law. Society must ensure against transgressions. Any government advocating the absence or reduction of accountability of intelligence organizations must be asked “Why”?
People in intelligence are honourable and scrupulous about adhering to the rules. But scrutiny of actions is a necessary tool of democracy. Great power and great secrecy make accountability reasonable and imperative to protect the rights of citizens. The means employed are less important than how robust and uncompromising the instruments are.
Canada has failed to provide robust intelligence accountability. Only CSEC and CSIS have any moderately arms-length accountability. Yet there are rumblings about the effectiveness of SIRC and the Harper government did away with the CSIS Inspector General, an office with a reputation of value-for-money. The RCMP has only the appearance of arms-length accountability. The other Canadian organizations engaged in intelligence, and there are more than a dozen in all, have no accountability beyond conventional political oversight, which is primarily defined by, and responsive to, what might appear on the front page of the Globe and Mail.
Canada has a minimalist approach to intelligence accountability. We have a self-perception of being “the nice guys”, something not always borne out by the historical evidence. Wrongs have occurred in the name of national security. The old adage of “trust us, we’re the good guys” no longer carries weight with the Canadian public, having seen evidence of poor judgment exercised by some of the people involved in this business. Canada is at a democratic cross-roads. We can no longer rationalize intrusive acts which are against the basic principles this country stands for by assuming that the actions taken are legal and sanctioned by Parliament. Waterboarding in the US was also legal. We should not assume that intelligence accountability not at arms-length is a solution to concerns about transgressions.
So what do we do? Greater transparency is imperative. We must do away with the myths and mystique that surround the intelligence business – and which are perpetuated by some in the business. The easiest and least stressful solution is to declassify a lot of the old files. Most intelligence files up to the early 1950s contain little of value which would be compromised if released. Much of it is already in the public domain. Some efforts have already been made in this regard – particularly by CSEC. Others must do more.
Administrative oversight exercised by bureaucrats and ministers is good – and necessary. But it is not a solution. Remember the old adage of “Who will watch the watchers?” In Canada the answer is no one. The Canadian intelligence community must be proactive if it wants to regain the trust of the electorate.
Robust accountability architecture must be constructed – it does not exist today. A first step is to trust the electorate and those whom it selects to represent them in Parliament. Any government which remains afraid of Parliament will never resolve the absence of trust with which the intelligence community is viewed today. SIRC and the CSEC Commissioner should be made more robust. Perhaps a sense of an adversarial relationship with those they oversee should be introduced.
The rest of the Canadian intelligence community are subject to no objective accountability structure. That isn’t very smart and we need to find a solution before something goes wrong. A Super-SIRC is the answer. The different components of the intelligence community involve different tradecraft, different operational spheres (domestic and foreign), and a host of other challenges. A Super-SIRC administrative structure or secretariat might work, but delving into the diffuse activities of members of the Canadian intelligence community requires a variety of skills, often unique to different intelligence organizations. A Super-SIRC secretariat might facilitate the necessity for review agencies to connect, share, and consult with each other when appropriate – in a sense, to “follow the investigate thread” when it flows into another agency, as has happened between CSIS and CSEC.
Additional structures are also needed. At present there is no oversight of what data is provided to Canada’s intelligence partners, except by SIRC after the fact. This isn’t very smart. An intelligence ombudsman, possibly a sitting or retired federal judge, is required to act as a court of last resort for those perceiving themselves to be penalized by the negative, illegal, or incorrect application of intelligence to their situations. Some people fall between the “intelligence cracks” and have no recourse to justice now.
Some sort of Parliamentary accountability structure of intelligence is vital, and now seems inevitable. No other solution will stand the test of time. Canada could follow the British accountability model which has, itself, evolved over time. The British model began as a Committee of Parliamentarians established in 1994 reporting to the Prime Minister, not a Committee of Parliament reporting to Parliament. This changed in 2013 when the Britain adopted the model of an Intelligence and Security Committee of Parliament (ISC) with members appointed by Parliament after consideration of nominations from the Prime Minister. Parliamentary accountability architecture would not conflict with the existing mandates of either SIRC or the CSEC Commissioner.
A Parliamentary committee should also include a mandate to actively oversee all authority granted to infringe on the rights of individuals or involving potentially aggressive collection strategies beyond our borders. A free and democratic society cannot afford unwarranted transgressions of the rights of potentially innocent individuals. One model to examine is the special committee of the German Bundestag (parliament) which oversees and authorizes the electronic monitoring of individuals under suspicion.
Bad things do happen to people who surrender freedoms without accountability. This can’t be sanctioned in democratic Canada. Accountability is not to be feared by those engaged in intelligence matters. But its architecture must be balanced, objective and at arms-length, and must provide an equilibrium between the rights and entitlements of citizens and the needs of national security. We’re not there now.