A recurring issue in national security law, especially since 9/11, is the proliferation of what I (and many others) now call "secret law". A recent report from the Brennan Center at NYU School of Law traces this development in the United States, supplementing earlier critiques.
Canada also labours with the problem of secret law in national security. In our case, it comes in different guises:
- As reported, the last government issued secret orders-in-council.
- Ministers issue directives under various statutory authorities that are not proactively disclosed. Copies obtained under access to information are sometimes heavily redacted. For instance, it is more than ironic that the 2015 ministerial directive to CSIS on accountability is mostly censored. These directives are cardinal aspects of Canadian national security law: they can amount to the nuts and bolts rules that govern how vague, open-textured statutory powers are exercised. They matter, in other words, and by any reasonable definition amount to law.
- Justice Canada legal opinions construing the scope of vague, open-textured statutory powers have the de facto effect of legislating the practical reach of those powers. These opinions are clothed in solicitor-client privilege -- with the end effect of allowing a tool permitting frank advice between lawyer and client to be used to deny the public access to a true understanding of how the government interprets its legal powers. That may happen also in other areas, but in this one, the Justice Canada legal advice often is the last say: the covert nature of national security activities means that no one may be aware of how these powers are being used, and in a position to adjudicate the true scope of the law in front of an impartial magistrate. In the hot-house of internal government deliberations, legal positions that might not withstand a thorough vetting become sacrosanct. And subsequent construals of powers build on earlier, undisclosed legal positions, producing outcomes that are very difficult to understand. Just two recent examples are: a conclusion that the actual physical amalgamation of information does not amount to collection in a legal sense (CSIS; and possibly also CSE); a conclusion that the compilation and analysis of metadata from travellers at a Canadian airport is not (as a legal matter) "acquisition and use" of information in a manner "directed" at Canadians or any person in Canada (CSE).
- Secret or quasi-secret Federal Court caselaw involving issues of public law importance, with much credit to the court for doing its utmost to publish public (albeit redacted) versions of its decisions.
Last Spring, a talented JD student at uOttawa compiled all the ministerial directives we could get a-hold of under access to information. I have struggled to find time to post her workproduct into a viable on-line database (that won't cost me a fortune). But it is still on my task list. Less clear to me is why it is on our task list, and not the government's. And even less clear to me is whether the scope of claimed redactions to these documents can withstand close scrutiny.
Similarly, it surprises me that the government does not waive solicitor-client on some of the legal construals that drive its national security powers.
In both instances, there are clear rule of law issues. Sooner or later this will end up in court. I think it's only a matter of time, for instance, before these matters go up through an access to information appeal in which someone tests the true meaning of the Supreme Court's s.2 Charter holding in the Canadian Lawyers Association case, garnished with a rule of law argument.
But secret law also ends up creating train wrecks in other ways, with serious operational significance. Indeed, that's precisely what happened with Justice Canada's construal of the CSIS Act at issue in the Re X saga.
And the even graver risk is that bumping along using untested legal views will end up in court as a collateral issue in a criminal matter. Say, for instance, the seed for RCMP charges is information-sharing from CSE based on its metadata program, done under its "Mandate A" foreign intelligence activities. And the trial court learns that CSE's collection of Canadian metadata, although done incidentally, was never authorized by a court (it never is, at present). And more than that, the subsequent de-minimization of the Canadian identifying information by CSE was done on request of the RCMP pursuant to a Privacy Act exception. That is, all this information ends up with the RCMP administratively, and not supported by a warrant. Does this happen? I don't really know (because of the secret law problem). but extrapolating from hints about the secret law governing the workings of the CSE de-minimization process, I think it may.
Surely it would be better to know the government's legal theory now (we can infer much of it anyway) and point out the risks before it becomes a central issue collapsing a criminal trial.
Better yet, change law and practice to bring it into alignment with a necessary concomittant of the rule of law in a democratic state: that we have actual notice of what the law is so that we know what we are authorizing our security services to do in our name.