New Senate report on anti-terrorism: good but with gaps

The Special Senate Committee on Anti-terrorism has released an "interim" report, entitled "Security, Freedom and the Complex Terrorist Threat: Positive Steps Ahead".  On balance, this is a reasonable report, that makes plausible (if sometimes quite general) recommendations.  A good portion of the report resuscitates the Air India inquiry idea of a enhanced National Security Advisor able to compel increased information flow between national security agencies.  To date, this idea has been rejected by the government, perhaps on sound grounds.  (See discussion here).  Other portions of the report deal, inter alia, with critical infrastructure protection, radicalization, profiling and assorted other anti-terrorism issues.


In this blog, however, I would like to focus on two issues: the perennial CSIS disclosure question and the question of "oversight".


Recommending Charkaoui II but no discussion of the aftermath


In relation to terrorism prosecutions, the committee makes a number of comments about CSIS and the use of CSIS intelligence in criminal proceedings.  It recommends, specifically,


(9) That the Canadian Security Intelligence Service Act be amended (i) to require that CSIS provide to the appropriate law enforcement agencies, or to the National Security Advisor, information that may be used in an investigation or prosecution regarding an offence constituting a “threat to the security of Canada” within the meaning of section 2 of that Act; (ii) when it is possible and reasonable to expect that the intelligence will be relevant to an investigation or criminal prosecution, to require that CSIS retain intelligence collected during an investigation into threats to the security of Canada (such as operational notes, tapes of interviews, and verbatim transcripts of intercepted communications); (iii) to require that CSIS collect and provide this material so as to comply with the rules of evidence and disclosure; and (iv) to clarify that the transfer of a human source from CSIS to a police service will not prevent the police service from invoking the police informer privilege. Disputes over the use of a human source could be resolved through the intervention of the National Security Advisor.


To some great extent, this recommendation simply endorses the result of the Supreme Court of Canada's Charkaoui II decision.  As with that case, however, the recommendation leaves open how the Service will partition its information collection into circumstances in which "it is possible and reasonable to expect that the intelligence will be relevant" in a subsequent criminal prosecution, and those where it is not.  Since at the genesis of (and indeed, well into) any CSIS investigation it seems impossible to make this determination, the Service will almost certainly need to err on the side of "treat it as if it could be a prosecution".  The practical result of this is almost certainly the retention of much larger quantities of information that, under the prior policy, would have been eventually destroyed.


Accordingly, the most important exercise now is not so much protecting the due process interests of prospective accused (in essence, Charkaoui II and its aftermath have gone a long way in doing that).  Instead, the delicate policy issue is now how to protect privacy interests in relation to the huge quantity of information that likely is and will pile up in CSIS databanks.


CSIS director Fadden famously denounced the new legal regime under which CSIS is operating by predicting that "within several years, someone will accuse us of acting like the Stasi [the infamous East German security service] because of the information we are now compelled to keep."  It was a colourful piece of commentary, entrenched in a speech that included other strong words.  But Fadden has a point.  It would be nice if the senate committee, in what I assume will be a final report, might turn its mind to this conundrum.


Shortshrift on "Oversight"


The final section of the report deals with "oversight" -- or more correctly "review" since  the report focuses on "review by a permanent parliamentary body to deal with security and intelligence issues".  The committee endorses such a body, bolstered by observations that we are one of the few Westminster democracies without one.


I'm inclined to support the parliamentary review model, if only for two reasons: First, a standing, legislatively-created committee of parliamentarians (as opposed to a parliamentary committee, created via Parliament's own standing orders and endowed with parliamentary privileges) obviates the need for ad hocery.  Such an entity might have avoided the need for the something close to a constitutional crisis arising from the Afghan detainee document dispute


In terms of design, the Martin government's bill C-81 was a sensible model.


Second, the experience in other Westminster jurisdictions (and especially Australia) suggests that a committee of parliamentarians can generate a new centre of national security-related policy thinking.  The more minds having an adult conversation about these matters the better.  To the extent that a committee of parliamentarians can operate at arm's length from the partisan bickering that seems to characterize at least the Commons national security committee, the better we all would be served.  There is also some obvious utility in building expertise on national security matters among parliamentarians.


But there is a missing link in the senate committee's discussion. 


Canada is distinguished from other Westminster democracies in not having a national security committee of parliamentarians.  But we are also distinguished by our long-standing, independent review bodies, like SIRC.


In relative terms, SIRCS personnel and budget have not kept pace with the expansion of CSIS.  This fact must have an impact on its operations.  Indeed, on its website, SIRC notes: “[b]ecause of the small size of SIRC in relation to CSIS, the Committee operates on the basis of risk management. Since it is not capable of examining all of the Service's activities in any given period, it must carefully choose which issues to examine.”  This has always been true, but it may be more true now than before and it may always have been more true than is desirable.  Throwing money at SIRC and increasing its capacity ranks well above creating a committee of parliamentarians.


Likewise, before a single drop of energy is poured into creating a committee of parliamentarians, the much more essential review problems identified by the Arar Commission need to be resolved.  They haven't yet been addressed.  They won't be resolved in the foresseable future.  The government's disappointing bill revamping the RCMP complaints commission will die on the order paper.


In sum, on accountability, the senate report could be a lot stronger.