This presentation was ultimately published in a symposium edition of the Canadian Bar Review, available here.
Canadian Civil Liberties Association Conference
University of Toronto
October 19, 2012
For the last eight years, I have taught, written, spoken and been involved in court cases and inquiries in the area of national security law. With all that effort, I have built a special expertise in the study of the tip of the iceberg. That is I really know very little despite all my best efforts, because the bulk of the national security legal practice lies below the watermark, protected by strict secrecy.
I tell you this because when I come to an event like this, where no government speakers are on the roster (although invited), I feel it necessary to point out the limitations we all have in knowing the capital "T" truth of how it all works.
I have the virtue of being in Ottawa, and knowing at least some of actors in the field. And without betraying any secrets, they give me some flavour of what it really means to do national security law.
And so I feel obligated when I come to a venue like this to try to convey these occasional glimpses below the water line. Because if there is one thing I have found, it is that the story is always -- always -- more complicated than we might expect from what we read and hear and are predisposed to think.
That is not to say that the other side of the story is convincing – it may not be. It is simply to say that there is another side to the story.
And I want to discuss accountability and national security paying some heed to the invisible.
Challenges of understanding national security law
As lawyers, we look to legislation and caselaw to frame our understanding of the content of law. We expect law to be overt, and an understanding of the law open to all who apply themselves to the task. This is not always how it works in national security law. In national security law, there are such things as redacted court decisions.
And even legislation cannot be read literally. Some statutes are construed internally in a manner that is difficult to anticipate from an external reading. A case in point is the actual manner in which ministerial authorizations for intercepts by Communications Security Establishment Canada operate.
Invisible Systems of Accountability
A lot of what we would describe as accountability also takes place behind closed doors. A lot of accountability takes place, not through courts or review bodies, and absolutely and definitely not through Parliament.
Instead, a lot of accountability takes place in the form of internal firewalls in executive government and testing, occasionally pseudo adversarial relationships between units involved in the chain of approvals.
The most famous example of a firewall is the special advocate support unit, housed in Justice, but at arm's length and often playing a role adverse to government litigation interests.
Examples of accountability through chains of responsibility include the various levels of intra and interdepartmental legal approvals for certain sensitive intelligence collection operations.
None of this is overt. Indeed, much of it is opaque to an external observer, if not invisible. In the result it quite naturally gets short shrift.
And it is certainly understandable why we might be suspicious of these systems -- they don't enjoy the pure, formal separation of powers and independence concepts everyone from Locke to our first year public law profs told us are the ingredients of accountability. But they are real nevertheless -- not perfect, sometimes inadequate, but usually evolving and real.
At heart, these systems – like any other system of accountability – depend on good people. Even the most robust pit bull of an accountability system fails when run by the incompetent or the indifferent. Likewise, even anemic accountability systems can outperform their design when staffed with people with fire in the belly. The examples of both such outcomes are legion in Ottawa. At some level, I think we should as attentive to the quality of people in these institutions as to the design features of the institutions themselves.
To repeat an admonition I make to my students so often preoccupied with civil liberties, and now considering career possibilities: don’t abandon the notion of public service in the government because of your presuppositions about the government of the day or the constraints of government service. It is not enough to clamour for civil liberties on the outside. We need people who bring those values to work every day, as is the case with many of the government lawyers I know.
Visible Systems of Accountability
In the few moments left to me, I’d like to talk about two other, more visible institutions of accountability: the Security Intelligence Review Committee and the Federal Court.
I think review bodies and SIRC in particular have a very hard job. Its budget has not kept pace with the core budget of CSIS, even setting aside money spent on CSIS capital projects.
The SIRC members are parttime, and in fact very, very parttime.
SIRC is and has been understaffed -- the member roster has been understrength for a while.
None of the current members has legal training, which is not in its own right vice, but it does make them dependent on their scarce staff in what I assume are matters that are sometimes quasi-judicial.
SIRC is now supposed to be SIRC and inspector general, whatever that means. I was told in the spring that would mean 2 new employees for SIRC, in comparison to the 8 or so cut from the abolished IG office.
SIRC is undergoing key staffing changes at the senior level and that will mean a real loss of institutional knowledge
SIRC clearly has a credibility problem with members of the bar who might represent complainants. Part of this is their anemic powers – why go to SIRC when at best you obtain a recommendation? But part of this perception stems from the opacity of SIRC’s functions. That opacity is anathema to lawyers. And on this point, I think SIRC should be like many other administrative tribunals and releasing redacted versions of their decisions, and not just oblique summaries in their annual report.
All that said, if you look my blog, I did a rough performance assessment of SIRC and I think on balance, they have performed fairly consistently in terms of levels of scrutiny of CSIS.
Of course, as some of you may be quick to point out, this is quantitative assessment and there is no way for me to do a qualitative assessment. Qualitative assessments would require examining a lot of what happens below the tip of the iceberg, and that has not been possible.
What about Federal Courts?
Well judges have many of my problems, with more responsibility: they too struggle to peer through the glass darkly, and without my ability to wander about and ask questions and poke my nose into things.
They are isolated by judicial independence and cabined by procedural rules that require them to focus only on what is before them, which may or may not be the full picture depending on the litigation strategy of parties.
It falls to them to decide epic questions like: is this person really as dangerous as the government says?
Will our intelligence relations really be impaired if I order this disclosure?
Will someone end up floating face down in Lake Ontario if the named person gets this information and extrapolates the identity of an informer?
Will something go boom?
These are not theoretical concerns. And so federal court judges (and in fact government lawyers) must be civil libertarians for the day after something goes seriously wrong. That is, they need to be the people who contemplate the full impact for our system of governance of getting it wrong today in a manner that precipitates a disaster tomorrow. And that is never easy.
And so you see them struggling with issues such as the mosaic effect, and originator control and security service informer privilege -- all of which can be principled concerns (although sometimes may not be on the facts) and involve important acts of balancing. Look, for instance, to the spectacular dispute in the UK Binyam Mohamed case.
For all of these actors -- government lawyers, review body, judges and to some great extent special advocates -- there is no room for absolutes. I can deal in absolutes. I am a tenured academic accountable to basically no one and responsible for basically nothing. They, on the other hand, are charged with saving us all from harm while preserving our fundamental rights and liberties. They need to be more William James than Immanuel Kant.
What Does this Mean for the Role of Civil Society in Accountability?
This lengthy invitation to understand context is no invitation for all of us to pull punches, to fail to criticize where critique is warranted. But when I critique, I appreciate I operate in the fog and there is every reason to believe I am dead wrong. And so I have to be intellectually nimble and prepared to be wrong, which is not fun.
So what about advocacy -- what room for it? Well, without persons prepared to be more stridently persistent, moderates are not moderate. Instead, they are the new radicals.
And so all of us should commit to being uncommonly persistent for, say, 10% of our time. By this, I don’t mean be rude, confrontational or extreme. On the contrary, I think how you advance a cause is as important as the cause you advance. What I do mean is to be politely, doggedly, unshakingly persistent.
And in that 10% of your time, look hard for the chinks in the system. And they are there and deserving of much closer scrutiny than they receive. Take one example. SIRC issues it annual report for 2005 a few years ago concluding that CSIS detained an individual transported by CSIS from the Middle East and handed over to the United States:
Jabarah could not be prosecuted for any crime in Canada, since his terrorist activities pre-dated Canada's Anti-Terrorism Act. Neither CSIS nor the police had any right to detain him. Based on these and other circumstances, the Committee concluded that Jabarah was “arbitrarily detained” by CSIS in violation of Section 9 of the Charter. Because he was detained, his right to silence as protected by Sections 7 and 11(c) was violated, as was his right to counsel under Section 10. Furthermore, his right to remain in Canada as protected by Section 6 of the Charter (mobility rights) was breached
This is an absolutely staggering finding. Now, there is lots reported generally on Jabarah in the press -- but this damning SIRC finding received a grand total of 9 mentions in the major Canadian print dailies. Nine, and one was an op-ed by Alan Borovoy. The rest were stories by the best reporters on the national security beat: Jim Bronskill, Colin Freeze, Michelle Shephard, Stewart Bell.
But 9 stories? Where was the outcry, where was the more pronounced media coverage? This was a definitive finding by the chief national security accountability body of acts that were ultra vires CSIS’s mandate and, by the way, unconstitutional.
I suspect that SIRC itself must be puzzled when there is so little take-up from its reports. Read them, please. And then deploy that knowledge in that 10% of your time.
Second: the torture directives; that is, the ministerial authorizations on the use of information procured by torture. I know some of us have differences on some of the aspects of these directives. But, indisputably, many of the instructions contained in these directives, if applied, would put the user in non-compliance with international law, the Charter and probably the Criminal Code. This is the sort of thing that deserves close scrutiny even outside of the 10% of the time spent being difficult. The directives are unconscionable, and more than that, unlawful.
Let me end with this thought. For all that I have said about the good, behind the scenes work of many talented people, accountability works best when prodded by the occasional high profile issue. When I see documents like the torture directives, I think we may be getting a little too comfortable. Time for some prodding.