Things just got way more complicated in the world of Canadian security and intelligence. And they were already complicated.
The Predictable Political Priorities
After last night’s US election results, Canada will be enormously preoccupied with maintaining trade access to the United States market, currently governed by a NAFTA much maligned by Donald Trump. A reversion to simple WTO rules (assuming the WTO itself survives) would sucker-punch the Canadian economy, as I understand the economic analyses. And so preserving the trade relationship and a seamless border will likely be the consuming foreign policy objective of the Canadian government.
As after 9/11, preserving trade may mean talking-up security. This is especially true given that the consequences of a terror incident originating in Canada and directed at the US have gone from disastrous to probably something closer to existential.
For these reasons, and more traditional reasons relating to our dependency on the much larger US security and intelligence community for shared intelligence, Canada will be even more keen than usual to show no daylight between us and the United States on security.
Trumpian National Security
And so a huge question is “what will a Trump security paradigm look like”. So far, the answer from the campaign is a mix of incoherent and scary. If a Trump administration returns to torture as part of the anti-terror toolkit (and, to take him at his word, goes well beyond the sort of practices at issue in the Bush period) and is inclined to the sort of unequivocal war crimes mooted as desirable policy, Canada will need to distance itself even as it shows no daylight. That is not an easy goal to achieve. Take information sharing: will Canada now find itself needing to apply the 2011 ministerial directives (on sharing of information that might come or induce torture) to every information exchange with US services? That would suddenly impose a lot of stickiness in a system that depends on being seamless.
So the next question is: how likely is a Trump administration to do the things Trump said he thinks would be good things to do? The soothing, technocratic answer is: the US intelligence and defence community would resist such departures from law and ethics, having learned their hard lesson from the post 9/11 years. See the discussion here. The less soothing answer for those of us who would never have predicted what happened after 9/11 is that the present day “imperial” presidency can bend gravity appreciably, especially if Trump appointees share his dispositions. In other words, a president with Louis XIV self-regard (although no equivalent savoir-faire) is capable of much mischief, especially if surrounded by sycophants much less able than Cardinal Mazarin. See the utter contortion the Bush administration (possessed of more worldliness on paper than the feared incoming crowd) made of the US intelligence community, in the lead-up to the Iraq War.
All of which is to say that I am not persuaded that bureaucratic resistance will suffice, especially with all three branches of government controlled by the Republicans (and that party tilting to Tea Party and now Trumpian world views).
But even if the United States does not backslide into abusive practices, it seems all but certain that the next administration will not be a government of law by lawyers. If Charlie Savage’s excellent book on security in the Obama years shows anything, it shows the degree to which the arbitrary and unpersuasively-lawyered Bush administration practices were replaced by an intensively legalized model. Whatever your doubts about the content of those legal views, it at least established a decisional rigour, relative to what went before.
I would not expect that rigour to survive a Trump administration. Rigour is clearly not part of the man’s personality, and the rule of law is equally clearly an arcane concept to him. I fully expect a seat-of-the-pants, arbitrary approach.
Knock-On Effects in Canada
That then raises the question: what happens to our security and intelligence relations with our chief ally. I leave it others to discuss the implications for things military and NATO. On that point, I will simply say that I suspect NATO will be tested. Bilateral military relations will be strained, although perhaps this is the easier issue. In truth, I have confidence in the uniformed military because of its tradition of laws of war compliance. Yes, it is not a perfect record (Somalia) and horrible new legal issues arise (the transfer of Afghan detainees). But I cannot imagine a Canadian officer giving or obeying a command to commit an outright war crime, as part of an allied operation or otherwise. The rules are clear here: that is an unlawful order and is not to be obeyed.
I am more concerned about the Canadian security and intelligence community. Here, secrecy is more acute, operations more porous, and the legal rules more pliable. And we have a tradition, post-9/11, of very doubtful activity tied to the allied relationship: The CSIS rendering of Mr Jabarah illegally and unconstitutionally in 2002. The use of information procured by the United States through torture in Canada immigration security certificate matters. The conduct of CSIS and RCMP in the maltreatment of Messieurs Arar, Almalki, El-Maati and Nureddin. The CSIS interrogation of Omar Khadr at Guantanamo Bay.
And of course, we are not alone among Five Eyes in having sacrificed some of our values post 9/11. The British, for instance, are still trying to unpick the contours of their conduct in the Intelligence and Security Committee’s current, new study on rendition. And before that, we had the Chilcott Report on intelligence and the Iraq War.
I am very worried, in other words, about the security services being bent by the gravitational pull of the US alliance relationship in an unpalatable direction. But the difference between post-9/11 and now: because of bill C-51, the Canadian services have an untested and poorly-bounded new host of powers at their disposal, for them to deploy as they are swept up in the new culture emanating from the United States. Put another way, this could get bad.
The question then becomes: what do we do about this? And here, I will say this: there is now, more than ever, an urgency to getting our house in order. Add the rigour that C-51 lacked so that our services don’t cruise to its outer limits, with all the predictable deleterious impacts. Perhaps even give serious thought to an enhanced Canadian foreign intelligence capacity – to reduce our dependence on the allied relationship (and potentially our value to it). And massively invest in our underpowered review and accountability system.
This is no longer business as usual, and we risk unpleasant surprises if we treat it as so.