It is abundantly clear that Canadian security services are acutely sensitive to the disclosure of intelligence shared by allied services. Intelligence is shared pursuant to originator control expectations and understandings that strictly regiment what happens to that shared information. Specifically, they limit who can see it and where it can travel.
To be clear, these controls are not imposed simply where disclosure of this information would actually be prejudicial to national security in any direct way. I imagine that often it would be. Sometimes it might not be -- the communication is routine or banal. So when states like Canada anxiously guard originator control, it is not always about the direct content of the information. Instead, what is being honored is the expectations of the sharing service. If those expectations are dashed, allied relations are impaired.
I have voiced concern in the past about the breadth of originator control. In it most acute form, I fear a mosaic of intelligence services, each persuading their national courts that the good name of the service in the intelligence community depends on tender assessments of intelligence-sharing practices. Intelligence sharing thereby becomes a zone of relative impunity.
In voicing this preoccupation, I am not implying a conscious conspiracy, but rather an uncritical application of a cardinal principle that could produce a beggar thy neighbour degradation of accountability. There is something disturbing about like-minded countries with similar due process traditions protecting the banal shared intelligence of other such states, all doing so simultaneously in a sort of circular fashion. I have heard some defence lawyers with strong views on excessive claims to government secrecy call this phenomenon "intelligence laundering".
For their part, courts clearly have struggled with the concept of originator control, as witnessed most dramatically in the Binyan Mohamed case.
And since I come from a tradition wary of government secrecy, I too often look for chinks in government claims in this area.
And so I was struck this past week by a contrast. On the one hand, in security certificate cases and elsewhere, the government claims serious adverse effects where originator control is disregarded, to the point that it fears even going back to allied agencies to ask for a (voluntary) relaxation of the control strictures. The fear is that even asking for this rollback sends the wrong message about reliability.
And yet, this last week we had statements from the minister of public safety suggesting that there were no pernicious consequences to Canada's intelligence relationships from a spying scandal in which a naval officer passed on entire thumb drives worth of allied secrets to the Russians.
On its face, this latest position is very difficult to reconcile with the government's traditional claims in security certificate cases. Recall that in the latter, we are discussing controlled, court-supervised disclosure in cases in which people might be deported to torture.
However, in speaking to those better versed in these things than I am and in parsing Minister Toews statement, there may be one key reason for this apparent incongruity: the intelligence community is more sensitive about systemic erosion of originator control than it is with the occasional, one-off, high profile spy case.
Everyone has their occasional traitors. More difficult to continence for security services is everyone having courts like the one in the Binyam Mohamed case.