Getting to Yes on National Security Law and Policy

Speaking Notes

May 2015

I’m on this panel to offer the perspective of a government outsider.  I suppose in my case, I might be described as an outsider with some occasional insider experience and who, by reason of the fact that I work in Ottawa, is usually lurking around the doors.

So I have been on the periphery of government and government policy issues for my entire professional life, most recently in the area of national security law. I am also (in a much less informed and much more distant way) an observer of how public policy in national security works in other democracies, such as the United States and the UK and Australia.

Based on that perspective, I’ll make three brief points.

First, Canadian national security policy making suffers from significant silos.   Some of this silo effect is compounded by today’s unproductive political environment.  But some of it is more structural and long-standing.

Silos exist between government and those outside of it.  But from where I sit, I believe silos also exist within government, between and even within agencies. Policy is developed internally, through a sometimes imperfect interdepartmental process, and then sometimes shared and applied unevenly.

I confess, I am sometimes dumbfounded by admissions suggesting that even those you’d expect to have their finger on the pulse aren’t able to stay on top of the whole picture.  I see a lot of agencies focusing on trees, but I am sometimes left wondering whether the government is good at seeing forests.

And that may be the reality of a complicated world, where officials are distracted by the crises of the hour in big sprawling bureaucracies.  But bigness can be overcome as a collective action problem, so long as there is more transparency.  Transparency allows us to capitalize on what, in the modern jargon, we call “crowdsourcing”.

And that brings me to the poverty of our consultative tradition. 

In Canada, national security (and many other) policies or law projects are almost always sprung on the world without any meaningful advance external consultation.  Yes, sometimes, some people – a select few -- are given advanced notice of a policy development.  But this is not real consultation, and at any rate this process is uneven and itself opaque.  And more than that, it sometimes done for optics, not for effect.

We are nowhere near having emulated the quite important UK tradition of floating policy ideas in national security law through detailed discussion papers and emphatically eliciting responses.  Nor have we emulated the UK and Australian experience of an independent reviewer of anti-terrorism law – more on that in a second.

We have had, through the now terminating Kanishka initiative, an emerging process of feeding academic research into government.  There are also academic outreach initiatives in some of the security services.  But in my experience, those events are often either the presentation of a finished government product, or a one way expression of views by academics to a sometimes very inert government audience.

Perhaps I look across the Atlantic with rose coloured glasses.  But again, the Canadian practice is quite different from apparently meaningful and seemingly rich, prior consultation on actual policy and law that occurs in the UK.

It is not as if the UK always arrives a good outcomes -- quite the contrary.  Consultation is not a perfect foil to bad ideas, especially if it is pro forma.  But it also seems clearly the case that the result in Canada of our stovepiped, closed door policy making is suboptimal outcomes.  Not all wisdom is monopolized by government.  I promise not to beat up on C-51, but I will say this: Had it been floated through a UK style process, I firmly believe it would have been possible to arrive at each and every one of the bill’s security objectives, without much of what has and will happen in response to that bill, including at least a decade of avertable litigation.

So to sum up on this point: the silo approach risks outcomes reflecting tunnel vision and creates unnecessary adversaries.

Second, because the silo approach spits out untested policy and law as a finished product, efforts to improve that outcome necessarily becomes a political issue.  In our current unhappy political environment, the political executive seems to view any change as a loss of face, to be avoided at all costs.  As a consequence, the political process polarizes and makes no distinction between those pressing for changes in good faith to improve outcomes, and those opposing measures because of more myopic agendas.  All tend to be tarred with the same brush, and all tend to be dismissed, sometimes through ad hominem attacks.

This is a not a phenomenon confined to national security law.  Nor should we assume that it is always unintended.  In 2009, the PM’s former chief of staff reportedly explained at an academic conference at McGill that it has been politically helpful to have academics and others attack government positions in the criminal justice area, on the theory that academic opposition actually enhances support in the famous “base”.  More than this, it meant, in his words, that the government “never really had to engage in the question of what the evidence actually shows about various approaches to crime.”  And ironically, this propensity exactly explains why government criminal laws are faring poorly in the courts, not least in the recent Nur decision.

At some level, the C-51 debate again is a classic and depressing example of this problem.  Indeed, the problem is even more acute with C-51 because the level of national security law knowledge in Parliament and among political staffers is very low, sometimes because of indifference, but probably more often as a knock-on effect of our closed-door silo approach. 

Having now appeared before more than 20 parliamentary committees, my experience is that it is close to impossible to address complex issues in a parliamentary environment, even without today’s acidic partisanship and ready recourse to non-sequitur speaking lines.

We suffer here again from the absence of an independent reviewer of anti-terrorism law able to feed disinterested and credible data into a distracted Parliament.  In the UK, for instance, that person issues periodic reports, and also scrutinizes government law projects.  This sparks thorough and meaningful government responses, and all this feeds into what appears to be a more sophisticated parliamentary process, relative to our experience here.

Moving on to my third point, which I will try to make more uplifting than my prior two.  We need an exit strategy from this morass.  We will not, as a society, meet sustainable national security objectives in our current manner.  I confess, many of my colleagues in the legal and academic profession simply take the view that there is little point trying to break down the silos at this point.  They await the next government.

But while some governments will be worse on this issue than others, we suffer in Canada from an excessively closed culture on national security – and always have.  Changing that does not just happen with a change in political leadership.  It requires also a changed culture within government institutions and also among those of us outside government.

I won’t propose specific, concrete suggestions – we could spend a lot of time on that.  But let me end by throwing out three, high level attitudinal steps. 

First, our security services need to decide that this is a priority.  For instance, when invited to speak at events and explain positions, they need to be willing to enter the lion’s den.  In my experience, now, they won’t, except in the most controlled circumstances.  It really is unfortunate to attend events which do influence opinion, and look down the table and realize that no one will be able to offer the government perspective, and not for lack of trying by the organizers. 

In those situations and because I am a contrarian who dislikes intellectual love-ins, my practice is often to try to act as a proxy for government positions, as best I can.  But having me acting as government proxy is not something that should really enthuse anyone in government. 

The risk post-C-51 is that the security services will just circle the wagons more closely, especially as they are subjected to heightened scrutiny in court cases and through a renewed media interest.

Second, and in keeping with this comment, we need the recruit and advance people inside these institutions who resist confirmation bias and do not become captive to their institutional cultures.  That is, we need people who are prepared to run the risk of greater transparency and are prepared to trust that this transparency can produce better outcomes.  

Which is a form of saying, we need the best and the brightest – there is a reason I encourage the students in my national security law classes to look seriously at government work.

Third, those of us outside, in civil society, also need to take a big breath.  There is now a culture of “gotcha” accountability.  This is partly because there is very little trust-building across the silos, and essentially none at the political level. 

It is partly because it is easy to assume the worst of faceless agencies, and much harder to assume bad faith when the human beings in those agencies are your neighbours who welcome you into the tent to work on a common cause.  

And honestly, I think this is a huge issue – most people have never met a CSIS officer, or Public Safety policy official, or a Justice lawyer.  And so their impression of these people can be like something out a fairytale.  And I must say – it goes both ways.  Those in government can perceive those outside as inevitable adversaries and beyond redemption, based on superficial stereotyping.

The gotcha environment is also partly a function of the 24 hour news cycle and social media.  And the general level of attention deficit in public discourse make communicating nuance very hard.

But that is not to say we shouldn’t try.  There will always be shock-jocks on both sides of the silo whose objective is to tarnish, not improve.  But it is a huge mistake to react to the existence of those persons by shutting off relationship building.  The shock jocks are undercut to the extent that relationship building creates a constituency more inclined to nuance. 

The challenge for civil society is to develop a mantra of “criticism if necessary, but not necessarily criticism”. 

The challenge for government is to open up so that those of us outside of government, making independent decisions on whether to criticize or not, do so based on fact, and not ignorance.

And the challenge for all of us is not to conflate good faith disagreement on the many contested issues in this field with animus.

Let me end there.