This is the final post in a series of blog entries on Noël J’s recent Federal Court judgment on CSIS’s retention of metadata from its warranted threat investigations. In my first entry, I tried to explain what this case is about. In my second, I raised concerns about how we manage legal doubt in the security and intelligence community.
In this final blog entry, I want to focus on two political/policy dimensions: First, the relationship between CSIS and its accountability structure; second, the knock-on implications of reform generally in the national security area. There is definitely some editorializing in this piece, but heck: it is my blog.
CSIS and Its Overseers
CSIS is generally law-abiding. “Generally” means that is has acted improperly at times. The CSIS Metadata case is an example. The misconduct in other instances can be even more serious. The Air India bombing matter was its sin at birth. The Grant Bristow affair was quite the saga. CSIS should not have rendered Mr Jabarah illegally and unconstitutionally in 2002. The immigration security certificate matters were/are a mess. The agency bears at least partial responsibility for the foreign maltreatment of Messieurs Arar, Almalki, El-Maati and Nureddin. The unconstitutional extortion (because that is what it was) of Mr Mejid was inexplicable. The interrogation of Omar Khadr at Guantanamo Bay was a serious error of judgment. The Federal Court’s finding of CSIS complicity (the Court’s own word) in Mr Abdelrazik’s detention in Sudan was distressing.
And CSIS now also has a pattern of underwhelming adherence to its duty of candour in relation to courts, its review body (the Security and Intelligence Review Committee) and the minister of public safety:
- Violations of the duty of candour to the Federal Court (Metadata Case; Re X (FC and FCA); Almrei);
- Violations of duty to disclose to SIRC in complaints proceedings (2013-4 and, on information and belief, in the Liddar complaint in 2005);
- Concerns about duty of candour to SIRC in review proceedings:
- Concerns about notification to the minister (including this past year).
And I suppose there are other examples, perhaps less well documented.
But to be clear, I do not view these infractions singularly or collectively to mean that CSIS is “rogue”. I need not imagine mala fides to be concerned. I am sure those inside the agency would tell me that there is a backstory to all of these instances. And so, I shall apply Occam’s Razor: CSIS makes mistakes, like any bureaucracy. But its mistakes tend to be quite consequential to individuals and the rule of law.
And so the question then is: what to do about it?
Less Aggressive Legal Positions in CSIS
Let’s face it, the statutory framework governing national security law needs a serious renovation, especially in areas affected by technology. So come back to Parliament and legislate, don’t pound the round peg of existing law into the square hole of new operational needs. When you do that, and lose, then you get hit with a jab and an uppercut: a finding of unlawfulness, usually on some sensitive civil liberties issue; and, a serious rule of law/running amok concern. You manage to ally a civil liberties issue (where the issues are often complex) with the rule of law issue (where the issues are pretty darn straight-forward).
I do not understand why CSIS would ever risk a negative duty of candour finding. It poisons the well – and that well happens to be the place where you need to go to get warrants.
Build Up the C-22 Committee of Parliamentarians While Also Fixing Expert Review
Well, enhanced oversight/review is in order. I have argued elsewhere that the proposed bill C-22 committee of parliamentarians is an important innovation, but requires enhancement to relax the strictures on the committee’s ability to see secret information.
Kent Roach and I have also argued that no committee of parliamentarians can ever hope to fulfill fully the detailed compliance function of the existing expert review bodies. And those review bodies must be rebuilt so that either a single body or (less ideally) multiple bodies have all-of-government security review jurisdiction and can cooperate seamlessly in performing their accountability functions. Abandoning expert review because of the advent of a committee of parliamentarians would be like tearing your seatbelt out of your car because now you have an airbag: they serve different functions, and besides a little redundancy is a good thing when trying to make potentially dangerous things safe.
And also, low hanging fruit: clean up SIRC’s funding so that it doesn’t lurch annually through periods fiscal doubt.
Build Formal Gateways between Review Bodies and the Federal Court
And in the wake of the Federal Court’s CSIS Metadata judgment, it seems that we need to fix the “broken telephone” between the review bodies and the courts. In two instances now – Re X and CSIS Metadata – the Court has been alerted to CSIS conduct, not directly, but very indirectly and obliquely by comments in SIRC’s public report. In CSIS Metadata, the Court used the word “manipulate” to characterize the risk that CSIS can leverage the distant relationship between the court and SIRC and serve as a broken telephone between the two.
And so a clear reform would include new statutory language allowing direct reporting by SIRC to the Federal Court on SIRC’s audits of CSIS warrants. Personally, I think the Court could impose such reporting requirements as a condition on the warrant (perhaps as simple as an obligation of CSIS to trigger a CSIS Act s.54 ministerial report and then a commitment to share it with the court). But Justice lawyers would probably throw red flags all over the field. So since fixing expert review means getting into the legislation anyway, better to put this all on sound statutory footing.
The Big “P” Politics
I’ll end with a slight broadening of the lens and, with trepidation, stray into the politics of this moment in Canadian national security history. Last Thursday’s decision, of course, shoves the pendulum in the reform direction, until the next time something goes boom. But of course, this back and forth swing is silly: there are real issues, and the issues are real regardless of where the pendulum is on its arc. We need a clear-eyed political gaze – and a lot of hard work.
For all those who think this is easy, and that a government further left or further right would wave a magic wand and things would be different, well, I don’t believe in magic wands. The magic wears off pretty quickly, and the deeper reform needs remain (see bill C-51, filed under category: “dark arts”). So let’s talk some more about concrete solutions, and not find in every “gotcha” moment (or every terrorist incident) proof for our predispositions.