Chapter 10: Secrecy

Threading the Needle: Structural Reform & Canada's Intelligence-to-Evidence Dilemma

Becuase I am a patriot, and wasn't available to sell my country out today in Finland, I have written yet another paper on intelligence-to-evidence. This one tries to straddle the distance between "accessible for non-lawyers" and "technical enough for lawyers". I try hard in this paper to lay out what intelligence-to-evidence is, in my view. Most importantly, I propose what I call "moneyball" solutions to this problem, expanding and refining those I have suggested elsewhere and supplementing the solutions that have been raised by others (which as mostly complementary). I have spent a lot of time talking to people about this, and nothing I have heard has persuaded me things can't be done better. It is not quite a Gordian a knot as many seem to assume. On the other hand, there is no "home run" solution. A lot of players will need to come to the table with renewed determination. The paper is intended as a draft working paper. I welcome comments and feedback. It may be downloaded here.

The paper's abstract is as follows:

This article canvasses the “intelligence-to-evidence” dilemma in Canadian anti-terrorism. It reviews the concept of “evidence”, “intelligence” and “intelligence-to-evidence” (I2E). It points to the legal context in which I2E arises in Canada. Specifically, it examines Canadian rules around disclosure to the defence: the Stinchcombe and O’Connor standards and the related issues of Garofoli challenges. With a focus on CSIS/police relations, the article discusses the consequences of an unwieldy I2E system, using the device of a hypothetical terrorism investigation. It concludes disclosure risk for CSIS in an anti-terrorism investigation can be managed, in a manner that threads the needle between fair trials, legitimate confidentiality concerns and public safety. This management system rests on three legs:

  • Manage the relevance “tear-line” so that crimes less intrusive on CSIS information holdings are preferred over ones that are more intrusive. This strategy requires applying a prosecutorial insight to those investigations and planning their conduct to not prejudice trials. I bundle this concept within the category of “collecting to evidential standards” and “managing witnesses”.
  • Legislate standards to create certainty from the murk of evidence law. Here, two innovations stand out: legislate O’Connor style third-party status for CSIS where: CSIS’s investigation is a bona fide security intelligence investigation; CSIS and police do not have full, unmediated access to each other’s files; and, CSIS does not take an active role in the police investigation. But do not build this legislated third-party status around rigid barriers on information-sharing. Second, legislate ex parte, in camera procedures for Garofoli challenges of CSIS warrants in which special advocates are substituted for public defence counsel.
  • Manage the public safety risk by creating a fusion centre able to receive investigative information from all-of-government and fully apprised of the public safety risks associated with an ongoing investigation (or parallel investigations). Ensure it includes representatives from all the services with legal powers to respond to threats. The fusion centre would not itself be an investigative body, and would have O’Connor-style third-party status, something that would not require legislation but which might benefit from it.

Government Proposals for Reforming National Security Criminal and Civil Trials

In August, the government circulated a targetted consultation document propoing a series of changes to the way in which national security secrets are kept in criminal and civil proceedings. This is very inside-baseball stuff, but essentially the government is responding to long-standing concerns about "intelligence-to-evidence", the thorniest matter in Canadian national security law.

The criminal law changes would reform the Canada Evidence Act, s.38 process to, among other things, open the door to provincial superior court trial judges, allowing them to participate more fully in it. (Section 38 allows the government to block disclosure of national security secrets in legal proceedings. This preserves sensitive information from exposure, but there is a trade-off: the government cannot then use these same secrets in the legal proceeding to defend or prosecute a case.) The civil law proposals echo these Canada Evidence Act changes, but then also propose "closed material proceedings" (CMP). The latter is a novel proposal. Basically, CMP would allow secret trials in civil cases: the government could use secrets in closed proceedings on the merits of the case, in a closed hearing from which the public and the other litigants are excluded.

Kent Roach and I have prepared a brief response to these proposals, generally supporting the criminal law reforms, but also urging that the need for reform here is as much operational as legal. We also express doubts about the closed material proceedings proposal.  Our paper is posted here. The abstract for that paper is as follows:

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their "parallel" national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor "third party" rule -- something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the "closed material proceeding" (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.

Secrets and Strategic Leaking: Situating Canada among its close allies

Spring has sprung, and so has the United States intelligence community. Specifically, the last several months have witnessed an astonishing pattern of leaks from the US government.  Some of the leaks come from the White House -- in one case apparently as part of run-on bombast from the man at the top. But in the wake of the Manchester bombing last week, some leaks seem to be coming out of the intelligence community itself. American leaks have fuelled angst among allies, most recently the British.

The New York Times ran two interesting analyses of US leaking of information collected by British authorities in the Manchester bombing investigating (here and here). They note how the culture of leaking is embedded in the United States in a manner without parallel in the United Kingdom, not least because of the broad reach of the First Amendment. I suspect also that the competing power centres in the American republican system (Congress/Executive) also facilitate an environment receptive to leaking. And the sheer size of the US intelligence community, and its vast penumbra of contractors, has contributed to leaky information control (the Snowden matter constitutes the obvious poster child for this).

But where does (Westminster) Canada lie on a spectrum of leakiness, with the United Kingdom on one pole and the United States on the other? My instinct is to say we are closer to the United Kingdom than the United States, with caveats.

The Law

First, there are many serious penalties for leaking classified information. On top of workplace discipline and loss of a security clearance, there is a prospect of going to jail. Security and intelligence community employees (and a number of others) are "persons permanently bound by secrecy" under the Security of Information Act (SOIA). It is a serious crime for them to reveal special operational information.  It could also be a breach of trust under the Criminal Code for any official to leak any classified information. And s.18 of the CSIS Act includes its own offence for leaks of Service information relating to source identity, applicable to those acting under the CSIS Act (a category that would include not just CSIS officers and employees, but also those of SIRC and ministerial officials.)

US and UK law also include penalties for leaky intelligence employees.

But we are more like the United States in one key respect: our Security of Information Act is probably even more unworkable than the US Espionage Act (and way more unworkable than the UK Official Secrets Act) when it comes to leaks by officials, other than those permanently bound by secrecy, to entities, other than foreign entities or terrorist groups. So, for instance, a leak by an official (other than a person permanently bound by secrecy) to the Canadian media would be very difficult to prosecute under the Security of Information Act (although Criminal Code breach of trust would still apply).  The reason for this is that the "anti-leakage" provision of SOIA (the infamous section 4) has not been updated since 1939 and is unconstitutional gibberish -- and so concluded the Ontario Superior Court of Justice in 2006.

We are also more like the United States in our constitutional arrangement. Pointing to Charter s.2, the Federal Court has recognized a constitutionalized right in Canada of whistleblowing. But this right is limited by s.1 considerations (See discussion in Forcese & Freeman, Laws of Government, 2011 at 220). And basically, that means that whistleblowing is limited to dire necessity, and must be done first through an internal mechanism and not initially to the media and public.

This approach is codified even for persons permanently bound by secrecy as a defence to a criminal charge under the SOIA, where they might otherwise be convicted for leaking special operational information. That defence specifies that whistleblowing should go through SIRC or the CSE commissioner, although the provision (s.15) leaves a lot of unanswered questions about how that mechanism might work.

Practice

On balance, we seem to be more like the UK in our practice. It is true that Canada has management issues with classified information. For instance, the CBC reported in November 2016 that "[t]here have been more than 10,000 incidents of classified or secure documents being improperly left or stored since Prime Minister Justin Trudeau's government came to office." This included 659 cases in CSIS itself. But all countries struggle with information management -- that is different from intentional leaking.

And CSIS has complained regularly about compelled disclosure in security certificate and Canada Evidence Act proceedings. But again, disclosure by court order is different from leaking.

In relation to intentional, unauthorized disclosure (aka leaking) of intelligence by the intelligence community or related entities (such as review bodies or special advocates), I cannot think of many (publicized) examples from the recent past.

The two instances that do come to mind were concerning, not because they revealed sensitive secrets but because they constitute examples of someone in government selectively disclosing intelligence information (or innuendo at least) to cast the security services in a favourable light.

The first was the leak concerning Maher Arar, during the Arar inquiry. This involved both selective leaks of information/analyses along with slanderous editorializing about Arar's character. And it came just as the RCMP and CSIS (among others) were being rightly castigated for their failings in the treatment of Arar. The Arar commission was so concerned about this behaviour, it added an entire chapter on the leaks to its report. And it said this about leaks done in 2003:

Unlike many other actions of Canadian officials that I describe in this report, leaking information is a deliberate act. Moreover, some of the leaks relating to Mr. Arar were purposefully misleading in a way that was intended to do him harm. It is disturbing that there are officials in the Canadian public service who see fit to breach the public trust for their own purposes in this way. It is disappointing that, to date, no one has been held accountable.

 

The second major example were similar leaks relating to Messieurs Charkaoui and Abdelrazik, again as the government was losing in front of a judge while trying to defend its efforts to deport and exile, respectively, these men.

It is unclear who did all this leaking -- a lot of the information was in circulation in government departments outside of the RCMP and CSIS. Both of these leak cases prompted RCMP investigations -- none have resulted in any further action being taken. In the Arar matter, the RCMP's hamfisted investigation involved a raid on Ottawa Citizen journalist Juliet O'Neill's home and office.  That in turn prompted the Citizen to challenge the constitutionality of s.4 of the Security of Information Act -- successfully.

In the second matter, an investigation has apparently been ongoing, but here again the RCMP appears to have made serious strategic errors by targeting journalists in an effort to find their sources. And on top of that, they did so in a manner that did not comply with ministerial directions on national security investigations that implicate sensitive sectors (such as the media).

I discuss the fall-out from this conduct here.

Conclusion

So in sum: We are like the United Kingdom in our strict rules and a general pattern of few intelligence leaks from our broader intelligence and security community.  We are like the United States in that leaking raises constitutional free speech issues (and also constitutional safeguards on overbroad anti-leakage provisions, like s.4 of SOIA).  And we have an unpleasant tradition -- however modest -- of government leaks to the media designed to cast the security services in the most favourable light when those services are embroiled in controversy.

 

Could a Canadian PM do what Trump seems to have done: Spill secrets to a hostile foreign power?

As most people who would ever bother to read this blog know, the Washington Post reported last night that Donald Trump spilled a major classified bean in his (already) bizarre White House meeting with the Russian foreign minister and ambassador.  The information in question originated from an allied intelligence service, most likely in the Middle East.

Early indications suggest this was patented Trump braggadocio (“Oh, I have the best intelligence services. And Trump Tower makes the best taco bowels”).  But undisciplined disclosure is almost scarier than malevolent disclosure, and it will raise inevitable questions about whether allied sharing services can possibly hope for originator control with Trump in the White House.

Some in the Five Eyes may be feeling particularly righteous, given past US objections to disclosure of US origin material. (The British case of Binyam Mohamed being the poster child).  But such schadenfreude is not likely to be shared within the intelligence services. Stephanie Carvin does a good job identifying key policy issues.

In terms of legal implications, Lawfare (in its blog and emergency podcast) notes that there are few criminal law implications for Trump.  Basically, the US president owns the classification system as part of his constitutional executive powers, and therefore has lawful authority to waive it.

Thought Experiment: Prime Minister Trump

But as is my wont, I can’t help but transpose the US events onto a Canadian legal context, to perform a legal thought experiment: If a Canadian PM were to disclose top secret (and probably compartmentalized) information to a hostile foreign power, could he or she go to jail?

In truth, no one can say for certain, since this is so novel an issue. But speculation is terrifically fun and I am going to go with “yes”, for reasons that follow. (And thanks to the several people on twitter who bandied around thoughts with me on this issue.  In full disclosure, not all will agree with this analysis.)

Starting Point: Crimes

We will assume that the PM has access to this sort of sensitive information, with this degree of sensitivity. If he or she disclosed it, two statutes contain crimes that might be applicable: the Security of Information Act (SOIA) and the Criminal Code (CC).  The most likely provisions boil down to SOIA s.16 “communicating safeguarded information”, SOIA s.17 “communicating special operational information”, CC s.46(2)(b) “treason” and CC s.122 “breach of trust”.  (Other SOIA crimes limited to “persons permanently bound by secrecy” would be inapplicable, because the PM is not such a person.)

No Executive Immunity

In Canadian law, there is no executive branch immunity. That is, the PM is not above the law, and is subject to the regular criminal rules.  The PM, as an MP, does enjoy parliamentary privilege.  And parliamentary privilege should immunize statements made during parliamentary proceedings from being questioned anywhere outside of Parliament (for example, through a prosecution in court).  But that privilege is confined to official proceedings in, most likely, the House or committee of the House – indeed, it does not even reach statements made in the precinct of Parliament, but outside of formal proceedings.

In our hypothetical, the PM would be conversing with the representatives of a hostile foreign power in his or her executive office, and so parliamentary privilege is irrelevant.

“Lawful Authority”

The much thornier issue is whether the PM would have “lawful authority” to disclose (unilaterally) classified information in this setting.  The SOIA and treason offences apply only where the person acts without such “lawful authority”. 

Breach of trust is more difficult to describe.  Not every administrative error by a public official (a category in which the PM falls) is a breach of trust – in the Supreme Court’s words, it “must represent a ‘marked’ departure from the standards expected of an individual in the accused’s position of public trust.” In determining whether there is such serious misconduct, one takes into account “the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities” (citing with approval Shum Kwok Sher at paras. 53 and 54).

Would a PM have “lawful authority” to act in the manner proposed?

My answer is “no”.

“Lawful authority” is not a defined term, and so requires a further inquiry into the way information security is maintained by the Government of Canada.  Information classification is not governed directly by statute, but by Treasury Board policy. Originally, this policy derives from royal prerogative over the management of the public service, not displaced by the Public Service Employment Act. (This is a reasonable inference from the Supreme Court’s decision in Thomson).

Security of information was governed by a 1956 Privy Council Office document called “Security of Information in the Public Service of Canada”, while security clearances were governed by Cabinet Directive 35 (1963).  These instruments were replaced in 1987 by the “Security Policy of the Government of Canada”, issued by Treasury Board under authority of the Financial Administration Act (FAA).  

Treasury Board is a statutorily-constituted sub-committee of Cabinet whose responsibilities under s.7 of the FAA are to “act for the Queen’s Privy Council for Canada on all matters relating to … [among other things] (a) general administrative policy in the federal public administration”.

This is all a very complicated way of saying: government security classification policy has always been set by Cabinet, either directly or through the Treasury Board.

This is not one of those few instances where the PM him or herself has exercised the royal prerogative personally or where he or she enjoys a personal prerogative. At least I can find no indication that it has been.

Cabinet generally exercises prerogatives.  Sometimes individual ministers may exercise special aspects of the prerogative. And, it is sometimes said that the Prime Minister may personally exercise the prerogative, because head of government. As support for this, some authorities point to a slender statement by the Ontario Court of Appeal in Black, and the fact that in that case the PM gave direct advice to the Queen on the award of honours (See, e.g., discussion here at 13.)

But not all prerogatives are equal.  First, I am generally resistant to claims that the PM can exercise unilaterally prerogative powers typically exercised through the vehicle of Cabinet (technically, the Governor in Council). 

I am conscious that there is in the bowels of government likely some sort of trove of documents looking much like warehouse in the Raiders of the Lost Arc that might well prove me wrong.  But it is worth noting observations like the one from the Federal Court in Khadr v. Canada (Attorney General), suggesting that where Cabinet codifies the exercise of a prerogative (in that case in the Passport Order), it is for cabinet (and not an individual minister) to create any exceptions:

Having determined that the prerogative had not been exhausted or occupied by the Canadian Passport Order, the issue remains whether the Minister could exercise the prerogative given that an order in council governed the administration of passports. It seems logical that since Cabinet had devolved some aspects of the prerogative to the Passport Office under the Canadian Passport Order, only Cabinet could act to deal with exceptions to the Canadian Passport Order.

An obvious response to this is, “Yes, but the PM is a special minister”.  The PM is certainly special in being able to determine the Cabinet consensus, but I remain unpersuaded that in every instance, that specialness extends to unilateral exercise of the prerogative outside of Cabinet.

At any rate, all this is entirely academic in an entirely academic blog entry, for two reasons. First, whether or not the PM retained some sort of residual personal prerogative in this area, I think it has been usurped by statute. 

Parliament has expressly tasked the Treasury Board with establishing administrative policies, under the Financial Administration Act. It is the Treasury Board that is to “act for the Queen’s Privy Council for Canada” on such matters.  It has done precisely this in creating the government security policy. (I recognize there is a "may act" in there, suggesting that perhaps there is some residual authority in Privy Council as a whole, but that just puts us into a loop about whether in these circumstances, the PM can then exercise any residual authority.)

Botom line: there is a heck of a lot suggesting to me that the PM does not have autonomous power to determine security classifications.  That alone should decide the matter as to whether the PM has “lawful authority” to disclose.  My answer: no.

But there is a second wrinkle: The PM has access to this classified information because (and in consequence) of his or her membership in the Privy Council.  Being sworn into the Privy Council is the sine que non of being a minister.  (Note also that there is a reason why members of the Security Intelligence Review Committee are sworn in as privy councillors – as SIRC’s webpage notes “All of the Committee members must be Privy Councillors, which means that they have full access to highly classified information, a privilege which is not granted to most Parliamentarians”).

The privy councillor oath reads:

I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty's Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.

[Emphasis added].

Leaking a secret revealed to the PM in his or her capacity as a Privy Councillor is, in my view, a breach of the oath.

That breach itself would vitiate any argument that the PM had “legal authority” within the meaning, e.g., of the SOIA.  And it would also constitute the egregious departure from standard practice, grounding a breach of trust charge.

Conclusion

All of which is to say that I do not believe the PM floats above the law in this area and can declassify on the fly without looking over his or her shoulder.  I may be totally wrong – this is one of those questions whose answer one only knows when a court tells you. 

But if I were PM and I wanted to spill a secret bean, I’d do it in Question Period to benefit from parliamentary privilege.  And boy, would that make the opposition parties happy.

Streamlined Anti-terror Investigations: Quick Notes on the UK Experience

In the spirit of constructive input, I have prepared two (admittedly lengthy) blog entries on how to make anti-terror investigations more seamless than they are at present in Canada. In this blog, I articulate the key challenges and then look at how the UK has addressed these matters. In a subsequent blog, I offer “lessons learned” for Canada and propose a path forward.

Many Shades of Secrecy: Challenges and Conundrums in the World of Canadian National Security Secrecy

Speaking Notes

The Conference Board of Canada

November 8 2016

 

Let me start my opening remarks with two quotations. The first is from the Cardinal Richelieu in 1641: “Secrecy is the first essential in affairs of the State.” Why? Well because control on information may give governments a leg-up over their international rivals, preserve them from their enemies and insulate them from domestic opponents.

But of course, what was virtue in Cardinal Richelieu’s day may be vice in today’s modern democracies. We require openness and transparency preserve citizens from the malfeasance, incompetence, corruption and expedient behaviour of incumbent governments.

And so my second quote, this one from U.S. Supreme Court Justice Louis Brandeis in 1914: “sunlight is said to be the best of disinfectants.”[1]

            Those two quotes encapsulate the enduring tension in the area of secrecy law and policy. The dilemma of any government information regime lies in balancing the strong public interest in disclosure in all areas, including national security, against legitimate refusals to disclose.

As a 2003 senate committee noted in a study of airport security, seeking assurances that secure doors at airports are actually locked is a proper public concern. Demanding disclosure of the combination codes to those doors would not be.[2]

            And so in my few moments today, I wish to discuss what I see to be the chief challenges for Canada in achieving this sort of balance in the area of secrecy and national security. 

 

Challenge 1: The Decline of “Practical Secrecy”

Most of you are probably aware of the mosaic theory, often used to justify government secrecy in court and other proceedings. The mosaic theory posits that even innocuous pieces of information should be preserved from disclosure because they are capable of being pieced together by an omniscient watcher to create a mosaic.  And that mosaic creates a security peril greater than the sum of the individual pieces of information.

            There is a certain skepticism within the Federal Court about this theory, but setting that aside, let me propose that the mosaic theory nicely encapsulates the challenge of secrecy in an information rich environment, in which big data techniques now allow the analysis of massive quantities of data.

            Big data, along with the digitalization of information that it depends on, reduces the effect of what I’ll call “practical secrecy”.  This is secrecy that stems, not from law or policy, but simply the traditional difficulty of collecting and analyzing huge volumes of data. Many things have been secret, not because they are consciously held secret, but because of the practical difficulty in finding the information. Things once written down in notebooks scattered in disparate locations are now found as digitized documents webbed together and searched by information technology and easily copied with perfect fidelity.

            And as the Snowden experience, and Wikileaks before it (and now, again, in the US election) suggest, these documents can be distributed with an ease without historical parallel.  Many of you may have heard of the concept of Massive Open Online Courses (MOOCs): these are distance learning university courses leveraging information technology to permit massive world-wide enrollment.

            Well, in the world of government secrecy, we seem to have reached the era of Mass Open Online Leaks (MOOLs)

In sum: much secrecy was once about air gaps that were the product of technological limitations.  Those air gaps are disappearing. 

 

Challenge 2: Compensating with Secrecy Policy and Law

 

And that brings me to a second challenge: faced with both the risk of conventional secrecy breaches and now MOOLs, the temptation is to restore and enhance air gaps through new laws and policies: Make sure a future Snowden can’t conduct a data dump with a few clicks of the mouse.

Setting aside the fact that we probably don’t have a law right now that would work for many leaks (or at least the ones that have been done through the media), there is a broader problem of policy coherence.

For one thing, there is a trade-off.  That is because those same technological tools, the permanent amalgamation of digitized data and big data tools are potentially advantageous from a security perspective.  There is a reason why, since 2006, CSIS was compiling data into the Operational Data Analysis Centre, at least partially illegally as it turns out from last Thursday’s Federal Court ruling.  There is a reason why the last government pushed through the Security of Canada Information Sharing Act.  Whatever you think about it architecture – and I think that Act’s drafting is close to incoherent – it purpose was a plausible one: marshal information resources in a manner that allows them to be exploited to predict threats. In other words: amalgamate. And so security imperatives demands amalgamation, fuelling the elimination of air gaps and heightening the risk of MOOLs.

            And I think policy coherence is this area is complicated, perhaps even more, by more traditional problems. The first, I’ll call “knee-jerk secrecy”.  In national security matters, secrecy is a default setting, rather than stemming from principled decision-making.  Secrecy claims are usually built around boiler-plate doctrines like the mosaic theory, or the third-party rule, otherwise known as originator control, or a general invocation of source protection or protection of means and methods. Information pigeon-holded into one or more of these vast categories is often denied disclosure, even when its disclosure would not actually be prejudicial to any bona fide security interest.  And we know this because in those rare instances where such matters have come to court or before commissions of inquiry, judges have repeatedly noted the security service’s propensity to overclaim secrecy.

            And that crying wolf has a cost.  It means that when real secrets do need to be preserved, the credibility of that claim might nevertheless be suspect.  In the Arar Commission context, the government sought to redact references to the CIA from the final report, and fought for those redactions all the way to Federal Court.  The Court rejected this and related redactions, ones that were embarrassing to the government (such as the fact that CSIS knew that the US had rendered Arar to Syria “to have their way with him”). In response to the Federal Court decision, the Globe and Mail penned an editorial that began: “The next time the Canadian government tells you it has secrets it needs to keep to protect national security, feel free to laugh out loud”. 

            Put another way, excess secrecy erodes what my colleague Wesley Wark calls the “social licence” of security services. Jim Judd, when director of CSIS made a similar point: “there is a risk that, absent adequate public dialogue and a surfeit of secrecy, the justification for action by governments against terrorism will be undermined or misunderstood. This in turn can put in jeopardy the legitimacy of the government response.”[3]

            Let me compound this critique with a related point, this one averting to Justice Brandeis’s quip about information being the best disinfectant: secrecy intelligence services are unusually insulated from accountability. There is no natural “red team” second-guessing their manner of operating.  And so we try to put in place proxies, such as special review bodies allowed into the secrecy tent.  But our specialized review bodies primarily focus on what is called “propriety review”: compliance with law and ministerial directive.  No-one truly scrutinizes the security and intelligence community on “efficacy” grounds: how well they do their job.  That happens only during periodic ad hoc commissions of inquiry, and the answer over the last decade is that the services often do not do that well at their job.  But recommendations such as those of the Air India inquiry then die with the commission of inquiry.  And we muddle along, outpaced by operational reform in places like the United Kingdom.

            One of the chief reasons I support the current government’s bill C-22 and the creation of a national security committee of parliamentarians is this: it opens the door, for the first time, to all-of-government review by a standing body able to follow the thread of its inquiry across departments and to conduct efficacy review, as well as the more classic propriety review. And this body will endure, and will be capable of follow-up in a manner impossible for ad hoc commissions of inquiry.

            But in truth, secrecy issues risk confounding that function. The committee must have robust access to secret information. Unless the committee can access information allowing it to follow trails, it will give the appearance of accountability without the substance. And right now, the committee will be encumbered by a triple lock on the performance of its duties – largely through limitations on its access to information.

            And so I fear, still, that secrecy will prevent the red teaming of the security & intel community required to drive necessary reform.

 

Challenge 3: Reconciling Secrecy with Streamlined National Security Investigations

 

And so it is on this question of reform that I wish to conclude.  This is my third challenge tied to secrecy: Canada’s awkward management of national security investigations.  Famously, CSIS and RCMP continue a long-standing tradition of parallel investigations, joined awkwardly if at all through de-confliction protocols such as One Vision 2.0, and disclosure and advisory letters. We do this in Canada, even as other jurisdictions have realized that contemporary security threats – and especially terrorism – require blended, even seamless investigations leveraging all the assets of different services.  This is most evident in practices in the UK, especially after 7/7 – practices that are credited by at least some observers as part of the reason why the UK has staved off a mass attack during the ISIS period, even while confronted by a terrifying security environment.

            The question then is: why does Canada continue to favour a sub-optimal, siloed model, at best tempered with complicated and choreographed work-arounds?  The short answer is: secrecy.  While under One Vision 2.0, RCMP supplies all its investigative material to CSIS, CSIS is much less forthcoming and retains a discretion to limit information flows to RCMP.  In other words, it keeps secrets from the police. This is not about jealous agencies.  It is instead a practice stemming from the differential levels of secrecy these two services can exercise.  RCMP is part of the criminal justice system, and so is subject to broad criminal justice disclosure rules in the event charges are brought – and bringing charges is the raison-d’etre of a police force.  CSIS is not part of this system, and fights tooth and nail to stay out of it.  And so to obviate the risk of disclosure in criminal proceedings, it maintains its distance from the police – a distance measured in carefully limited information flows.

            The result is what the Air India inquiry labelled “the less is more” pattern of information sharing by CSIS to police.  And that inquiry condemned this practice.  Rightly, because it is unwieldy, bureaucratic and dangerous in a dynamic security environment.

 Fixing this problem – at core a secrecy problem – and solving what is known in the jargon as “intelligence to evidence” should be the priority of any government serious about national security.  Some of the fix may be legal.  But after picking away at this issue now for years, I am now persuaded much of it is cultural. It requires a cultural shift. And by cultural change, I mean an appreciation by CSIS that whatever the breadth of our disclosure rules, there are robust protections against disclosure truly prejudicial to national security.  In other words, do not exaggerate legal risk. But more than that, an appreciation that they are, in fact, in the evidence collecting business – much as MI5 now collects automatically to evidential standards and works in a continuum with the criminal justice system, not in a parallel universe from it.  And collecting to evidential standards, if done with proper premeditation, can mean collecting information in a way that disclosure need not betray sensitive means, methods and sources. Put another way, anticipate disclosure and manage for it.  Do not assume secrecy.  Because achieving absolute secrecy in the area of national security investigations amounts to winning the battle and losing the war when it means we are unable to put bad guys in jail because of it – or even worse, stop them before they act.

 


[1]               Louis D. Brandeis, Other People’s Money and How the Bankers Use It (New York: Frederick A. Stokes Company, 1914) at 92.

[2]               Standing Senate Committee on National Security and Defence, Myth of Security at 12.

[3]               Jim Judd, Director of CSIS, “How Should a Democracy Respond to Domestic Terrorist Threats.” 

CSIS and the Metadata Muddle Pt 2: On Secret Law, Courts and the Rule of Law

This is the second of 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 this blog entry, I begin to explore its implications, as I see them. First up: what a tangled web our legal system has weaved.

Secret Laws

Readers of this blog will know that I have developed an allergy to a commonplace practice in Canadian national security law: secret law.  As I have noted before, 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.

Examples I have encountered in my wanderings include:

  • a conclusion that the actual physical amalgamation of information does not amount to collection in a legal sense (CSIS; and possibly also CSE) (either a variation of the issue in play in the Federal Court case, or the very issue at stake – I don’t know);
  • 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);
  • creative theories in the Re X case about CSIS extraterritorial warrants;
  • a conclusion that CSIS’s new Bill C-51 threat reduction powers, done in violation of the Charter, can be constitutional if done pursuant to Federal Court warrant;
  • a conclusion (or at least implication) that somehow, and despite its (admittedly tortured) wording, the new bill C-51 Security of Canada Information Sharing Act is lawful authority effectively trumping the Privacy Act;
  • a conclusion that the exception to the definition of “undermining the security of Canada” in that same Act does not exclude violent protest, advocacy or dissent (a reasonable policy position, but the “violence” qualifier is not in the Act);
  • a conclusion that narrows the textual reading of the bill C-51 “advocacy or promotion of terrorism offences in general” (again, a welcome policy position, but not the way the offence reads).

These are all conclusions that are difficult to view as guided by the law Parliament has enacted.

The CSIS Metadata Case

Enter the CSIS metadata case. As described in my prior post, this case turns on whether retaining “associated data” (that is, non-threat related information) collected in warranted intercepts of communications by targets was lawful.  The Federal Court concluded it was not. And it reasoning on this point is awfully compelling.

Less compelling is the argument offered by the Department of Justice in defending this practice.  And these arguments have knock on implications if they govern the legal advice given in other contexts.

Argument 1: The statutory limitations on CSIS’s intelligence gathering in section 12 are relieved by a Federal Court warrant.

That is, once a Federal Court warrant issues, then Parliament’s constraints on CSIS’s section 12 mandate do not matter any more.

Now, as someone who teaches public and constitutional law, and defends basic constitutional norms of parliamentary supremacy, and contests the delusion that (except in rare instances inapplicable here) the executive has powers beyond those granted by Parliament, this argument struck me as astonishing.  Here, the Justice Department is arguing that, in a secret hearing not subject to appeal in which only it is represented, it may negotiate a warrant with a court having the effect of superseding Parliament’s instructions on the powers CSIS is to have.

Let’s extend the Justice Department’s argument to the powers CSIS has after Bill C-51: it may do anything to reduce broadly defined “threats to the security of Canada” under section 12.1, so long as proportionate to the threat. Under section 12.2, it must not, however, engage in bodily harm, violate sexual integrity or obstruct justice.  In other words, Parliament sets an out limit (albeit a ridiculously undemanding one that we believe needs to be made more robust).

But, under the Justice Department legal reasoning, if CSIS goes to Federal Court and obtains a warrant (as it may do so under s.21.1), these limits could be superseded by the warrant.  And so, under the Justice Department logic, the Federal Court could authorize CSIS to, say, engage in targeted killing (remember, the C-51 changes also say that CSIS may, with Federal Court warrant, violate the Charter).

I have yet to meet the Federal Court judge that would authorize such a thing.  But that is not my point.  My point is that under the Justice Department logic, the basic constraints on CSIS’s powers legislated by Parliament in Bill C-51 can be negotiated out of existence in a secret, one-sided court proceeding, with no appeal.

Fortunately, Justice Noël rejects this Justice Department argument. But it is a bit terrifying it was ever made.

Argument 2: Metadata and the privacy issue. 

In a second argument, the Justice Department seemed to advance the view that metadata do not trigger privacy concerns under the Charter at the collection stage.  Instead, as I follow the discussion, that threshold is crossed when they are amalgamated and searched. 

The court did not resolve this matter, it seems to me. But it is another distressing position with ramifications across government (including in relation to the infamous CSE incidental collection of Canadian metadata in its foreign intelligence and information technology security functions). 

If accepted, this argument allows the accrual of vast pools of metadata, undisciplined by Charter collection rules.  Under Bill C-51’s Security of Canada Information Sharing Act, that information could then start sloshing about government.  At some point, the amalgamation and analysis of it would cross the Charter threshold, even according to the Justice argument.  But what happens then?  Are we to expect that government departments will come to Federal Court proactively seeking a warrant as they run algorithms through these databases?  Absent legislated structures, I don’t see this happening.

So, again, this is another unhelpful legal theory.

Argument 3: CSIS and its lawyers didn’t need to tell the Federal Court about the metadata retention. 

And now we get to the fireworks in this case: the duty of candour issue.  I shall do a separate blog entry on this issue in particular.  But among the other astonishing issues: the government lawyers apparently took the view that they did not need to tell the court how data collected under court warrant was being used, because the court did not have supervisory authority. This is a gobsmacking position, which basically confirms experience with other cases (like Re X): once the warrant walks out the door, the government does as it wills with it.  It is a legal position that court itself discards with some energy: the government legal view reflected a “worrisome lack of understanding”.

And so I can only expect at this point that every single Federal Court warrant will have a “return and report” clause affixed to them.  And the Federal Court will now move in the direction of the US FISA court in terms of auditing performance.

Which is fine, as far as it goes.  But what about all the other doubtful legal positions that never get in front of court – and they are likely legion.

Well, one of the most important aspects of the national security and intelligence committee of parliamentarians anticipated by C-22 is that they will have access to information that is protected by solicitor-client privilege.  If I was in charge, the first thing I’d do: an audit of national security legal opinions, done with the assistance of a small bevy of special advocates.

Secret Law and Canadian National Security

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.

We know from the caselaw that courts have treated this kind of thing as an end-run around the Charter (see Cole and Colarusso).

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.

Police "rogues", journalists & the hapless victims of classified innuendo

There is considerable discussion today (again) concerning the RCMP investigations into leaks of seemingly classified information said to implicate two individuals in a phone call in which they allegedly plotted a terrorist activity.

The narrative, at present, seems to have lost its mooring and to be a discussion of "police spying on journalists", with most people (reasonably) being quite concerned about that prospect.

But context is everything. I have watched this matter from a distance, and so do not claim intimate command of the facts.  But here are those facts, as I understand them (with corrections from those closer to the matter appreciated).

In the beginning...

There were two men that the government of Canada considered dangerous.  One -- Charkaoui -- was subjected to an immigration security certificate.  That process collapsed when the government withdrew the case, in the face of a court order that it provide more information on the case against him to Mr. Charkaoui.  (Mr. Charkaoui is famous for two eponymous decisions on the constitutionality of security certificates issued by the Supreme Court of Canada).  He remains in Canada

The second man -- Abdelrazik -- is a Canadian of Sudanese origin whose travails with the government were detailed in a Federal Court decision that concluded, along the way, that "CSIS was complicit in the initial detention of Mr. Abdelrazik by the Sudanese."

Sour grapes or frustrated anxiety...

Caught up in legal proceedings that the government could not win, someone in government apparently took it upon themself(ves) to leak information that alleged the two men were dangerous.  There was an initial leak in 2007 discussed here. There were additional leaks in 2011, covering some of the same ground.  In both instances, defenders of the two men accused the government (or persons in the government) of an orchestrated smear campaign.  Indeed, that question is still (as best I know) before the Federal Court.

These leaks followed other leaks made in the case of Maher Arar, casting aspersions on Mr Arar's character.  The O'Connor judicial commission of inquiry commented as follows on those 2003 leaks:

Unlike many other actions of Canadian officials that I describe in this report, leaking information is a deliberate act. Moreover, some of the leaks relating to Mr. Arar were purposefully misleading in a way that was intended to do him harm. It is disturbing that there are officials in the Canadian public service who see fit to breach the public trust for their own purposes in this way. It is disappointing that, to date, no one has been held accountable.

 

In both cases, the leaks were reported by journalists, raising questions as to whether those journalists were being fed information favoured by the faction or individual in government inclined to denounce individuals in cases that the government had (or would) lose in court.  Certainly, this was information to which there was no adversarial challenge before an adjudicator -- and this is of real concern given the difficulty the government had making out its case where there was such adversarial challenge.

This raises a collateral issue.  I am loath to comment adversely on a profession for which I have considerable respect, but surely there is some code or expectation among journalists designed to guard against being used in this manner?  If there is such a code or practice, I leave it to journalism experts to comment on its applicability to these scenarios.

Enter the police...

Canada does have a secrecy law, the Security of Information Act.  Among other things, it makes it a crime for persons within the security services (permanently bound by secrecy) to leak classified information (I am simplifying the rule greatly).  In the Arar matter, the Mounties investigated the crime.  And so too in the Charkaoui/Abdelrazik matter.  In neither matter did the investigation lead anywhere (as best I know).

The police are, in fact, supposed to investigate these crimes, and those inclined to think that government officials should not be able to take it upon themselves to leak selectively classified information (whether for an ulterior purpose or not) would welcome the idea of such investigations.  There are things that should be secret.  And certainly, secrecy should not be waived unilaterally by officials deciding to fight a cause lost in court in the much more carefree court of public opinion.

But these investigations are a mine field for the police.  That is because the lynchpin of the investigation may be the journalists. (This is less so now -- as US experience suggests, big data compilation of government information systems can now sometimes out a leaker with greater ease than poking around with a journalist).

In both the Arar leak case and the Abdelrazik/Charkaoui cases, the Mounties' investigations did involve journalists.  The Arar matter was the most notorious -- then-Ottawa Citizen journalist Juliet O'Neill was subject to a very invasive search, pursuant to a warrant issued in support of the Security of Information Act investigation.  The Citizen challenged the constitutionality of the crime being investigated -- successfully.  And so part of the Security of Information Act should be considered a dead-letter (and the prior government chose to live with this gaping hole, although sometimes consequences under this unconstitutional provision were threatened, as in the Bernier/Couillard matter).

Investigations involving sensitive sectors...

But other provisions -- including those governing persons permanently bound by secrecy -- persist.  And so the issue is: can the police conduct suveillance on journalists in an effort to find their source?  To which the legal answer is: yes, so long as done in compliance with the law.  And the law requires warrants (but only for searches and seizures and not for surveillance in public spaces).  Journalists are not immune, constitutionally or otherwise.  On the other hand, journalists (like academics, labour unions, religious institutions) are part of "sensitive sectors".  Pursuant to ministerial directions issued by the then-solicitor general Wayne Easter in 2003 (at the height of the Arar matter), there are special procedures that must be followed in investigations that touch on these sectors.

Those special procedures involve senior sign-off within the RCMP.  In the latest scandal, reported today, that senior sign-off was not (initially at least) obtained.  And hence, the RCMP officers were described by the CBC today as "rogue".

But we should be clear: if they were rogue, it was because they did not follow the ministerial directions.  There is no allegation of which I am aware that they did anything else off-colour, including any allegation that they broke a law.  (I stand to be corrected if someone can point me to a source that I have not seen.)

In sum: be careful what you wish for.  This was an investigation into a troubling practice of character assassination through the use of information leaked in possible violation of secrecy law.  Civil liberties groups called for an investigation (although certainly not for the RCMP to be ham-fisted in conducting it).  I for one have been disappointed that those investigations came to naught.


Bill C-44's First Public Treatment: Yellow Light

The Federal Court released today an interlocutory decision in a long running saga that addresses aspects of the Harper government's first 2015 security bill, C-44.  At risk of being accused of "insta-analysis", a few quick meditations. 

This decision is a collateral judgment in the endless litigation over the government conduct in what became the matters examined by the Iacobucci inquiry

That post-inquiry lawsuit is now infamous -- dragging on for years as the government has used every effort to stave off the disclosure plaintiffs have sought in order to prove their case.  This judgment is the latest in the series of lengthy disclosure disputes. 

Basically, the government can use s.38 of the Canada Evidence Act to protect national security information from disclosure, but to do so it has to persuade a Federal Court judge to order non-disclosure.  Here, at issue is the identity of some of the CSIS protagonists in the case, presumably both officers and sources.  Their identity has always been carefully protected, traditionally on a case-by-case basis by the Federal Court when such matters come before it. 

But the courts have resisted the idea that CSIS sources automatically receive protection in relation to anything that might identify them -- not least because CSIS has traditionally handed out source protection with considerable liberty and seemingly without much consideration of the downstream impact on justice issues. 

So part of C-44 responded to this judicial reticence by legislating an automatic source identity protection, prioritizing CSIS's interests over that of others in the justice system. 

The issue before the court in the recently decided matter, therefore, was whether this new automatic source identity protection applied to a case that has been underway for years. To cut to the chase, the court said "no".  Basically, and subject to exceptions, statutes don't apply retroactively [or, as my colleague John Mark Keyes correctly points out in relation to this case, retrospectively] unless parliament expressly makes them retroactive [or retrospective].  That didn't happen here, and none of the exceptions applied.  So the government is out of luck and the question of disclosure here will proceed under the pre-C-44 legal regime (with the classic, already very protective case-by-case assessment of whether identifying information should be disclosed, balancing security against other interests.)

What caught my eye? Para 93. It doesn't go there, quite, but the court raises the spectre of something that lurks in this area: what do you do when the (overbroad) C-44 source protection acts to impair the litigant's rights to a remedy for the breach of a constitutionally protected interest?

My thinking, such as it is, goes something like this: a statutory provision that has the effect of blocking a remedy for a constitutional breach should itself be unconstitutional.  After all, one of the first cliches one learns in law school is: "there is no right without a remedy". 

Now, as best I know (not having actually researched the matter for more than a few minutes), this question is a novel issue — because the clear right to sue for damages for constitutional breaches is itself new.  (The Supreme Court may well say something important on this matter in this case, when it is decided). 

But as it stands now, I am really hard pressed to imagine that you can have right to sue for Charter breaches and the right to s.24 remedy, but then the government can turn around and create a statutory provision that stands in the way of your actually being able to make out the case for a remedy.  Put another way, "where vindication of a constitutional right is at stake" should be another carve out from the C-44 source protection rules, especially if there is a means to square vindication of the right with the legitimate security interest.  (One example of a work-around would be the use of security-cleared special advocates to advance the plaintiff's case in civil litigation).

The court doesn't get there in para. 93, because it was not necessary to decide the case on this issue.  But what it says about overbroad source protection having an impact on the defence of a substantive Charter right should certainly make the government sit up and do a rethink on the question of source protection.  As Kent Roach and I have argued in False Security, the present C-44 arrangement is excessive and will have knock on effects on, eg, prosecutions.  This case raises yet another manifestation of negative knock-on effects.

And while I'm talking about this case: I personally find it embarrassing and more than a little disturbing that after all the findings in the Iacobucco inquiry pointing to the likely affect that information sharing by the Canadian government had on the maltreatment of the plaintiffs in foreign jails, the government chose to fight over the remedy in civil court, rather than settle (as they did in the Arar matter).  I truly hope “settling this case” is on the agenda for the current government.

Harkat Supreme Court Decision: Winners and Losers

 

The Supreme Court released its long anticipated decision in the Harkat security certificate case this morning.  I won't summarize the holding -- I can't do any better than the headnote writers at the Court.  But I think it worth reviewing the case from a "winners" and "losers" perspective, since the immediate buzz is that this is a win for the government.

The answer on this point is probably: "yes" this is a government win from a "headline" perspective, and "no" from a "we like what the Court has said about security certificates" perspective.

Mr. Harkat

This is clearly a huge loss for Mr. Harkat.  To be clear: That doesn't mean it's the end of his legal battles.  The issue may now move to whether he can, in fact, be removed from Canada.  If there is a risk of maltreatment upon removal, we will be back to a discussion about what the SCC meant in Suresh in relation to removal in the face of torture, and if its obiter statement suggesting that this was possible still reflects the current state of the law. (Personally, I don't think it does, since the Court has since re-acknowledged that the Charter should be construed consistently with Canada's international obligations, and there is no way Canada's international obligations permit removal to torture.)  A related issue is whether the decision on whether removal will result in maltreatment must be made by an independent decision-maker, as opposed to someone in the bureaucratic hierarchy.

But for security certificate purposes, the battle is over.  (And on this point: it must be particularly galling to Mr. Harkat and his legal team that the Court acknowledged a Charter violation in relation to the destruction by CSIS of the original transcripts of intercepted communications, but refused to do anything about it. To use such strong language to condemn the government action, and then to fail to exclude the intercept summaries as evidence and to send the matter back to be reconsidered on the remaining facts -- as the Federal Court of Appeal did -- is one of those SCC decisions I shall never be able to explain to my law students.  At some level, the Court decides to do this factual reassessment itself, serving as a proxy fact-finder, while talking about not being a fact-finder in the portion on Khattab discussed next).

And so at the end of the day, this turned out to be a case about facts not law.  And one of the most critical facts was "who was Ibn Khattab?".  Justice Noël, in Harkat, considered affiliation with Ibn Khattab justified the government's case because Khattab was connected to terrorism and "the Bin Laden network" (at para. 4).  In Justice Noël's words: "he is a member of the Bin Laden Network through his past work for the Khattab group" (as well as other associations) (at para. 548).

But just to show that these facts can be mutable things, Justice Mosley, in Almrei, concluded that Khattab was not part of Al Qaeda and that "association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada" (at para. 464).

This differing view of the role and activities of one man was not enough to persuade the Supreme Court to vacate this case: "Noël J. was entitled to make his own assessment of whether Ibn Khattab was involved in terrorist activities, based on evidence that he found to be reliable and appropriate. I would not interfere with his assessment" (at para 109).

On such things, the fate of individuals turns.  Pretty messy.

 

The Government

But that Mr. Harkat lost does not mean that the government "won" and had its way, at least from the perspective of those of us interested in the institutional development of the special advocate system.  The Court didn't find reason to doubt the constitutionality of the system, because possible constitutional deficiencies can be preempted by following its close instructions on a number construals of the Act.  To list those:

  • Minimum Disclosure: There is an "incompressible minimum amount of disclosure to the named person".  To meet this standard, the named person must "personally [have] received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates which will allow them to challenge the information and evidence relied upon by the Minister in the closed hearings" (at para. 56).  "If the named person is not reasonably informed, the proceedings will not have been in compliance with the IRPA scheme and the judge cannot confirm the certificate’s reasonableness. In such a case, the judge must quash the certificate, pursuant to s. 78 of the IRPA" (at para. 60).  This is potentially a big deal, and probably not something the government is content to see.
  • No Failures to Disclose Based on Doubtful Hypotheticals or Disclosure Allergies:  "Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person" (at para. 61). " The judge must be vigilant and skeptical with respect to the Minister’s claims of confidentiality" (at para. 63).  Again, not a great rule from the government's perspective.
  • Continued Communication is Real and to Be Preferred: "The judge should take a liberal approach in authorizing communications [between special advocates and named persons after the former has seen the secret evidence] and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real — as opposed to a speculative — risk of injurious disclosure. As much as possible, the special advocates should be allowed to investigate the case and develop their strategy by communicating with the named person, the named person’s public counsel, and third parties who may bring relevant insights and information" (at para. 70).  And special advocates can make the case for continued communication ex parte, without the government lawyers present (and thus learning lots about the other side's litigation strategy).  Given where the government started on the communication back in the day and traditional position in places like the UK -- communication verboten -- this is a significant holding.  I haven't tracked how much communication has existed in practice, but this language leans towards "a fair amount" and possibly more than has heretofore been on offer.
  • There is no "CSIS informer privilege": "[T]he IRPA scheme already affords broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person" (at para. 87).  Again, not the answer the government wanted.

Special Advocates

Special advocates win, to the extent you can view them as an actor in this matter.  They will continue, at least as a concept.  They will have more continued communication and in the right circumstances, they may get to cross-exam intelligence sources, although the Court was pretty restrained on this point. 

Other Named Persons

What impact this decision will have on the Jaballah (still pending) and Majhoub cases (being appealed?) remains to be seen.  But my strong suspicion (given the above) is that the SCC decision in Harkat has now moved the ball even further down the field from where the government would like it to be. Now after 7 years of effort we have a system with reasonably clear rules.  And since the government may not like where those rules take it, it is unlikely ever to issue another terrorism-related security certificate (if it can avoid it). 

Secrecy and Context: Different reactions to being leaky with intelligence

It is abundantly clear that Canadian security services are acutely sensitive to the disclosure of intelligence shared by allied services. Intelligence is shared pursuant to originator control expectations and understandings that strictly regiment what happens to that shared information.  Specifically, they limit who can see it and where it can travel.

To be clear, these controls are not imposed simply where disclosure of this information would actually be prejudicial to national security in any direct way.  I imagine that often it would be.  Sometimes it might not be -- the communication is routine or banal.  So when states like Canada anxiously guard originator control, it is not always about the direct content of the information.  Instead, what is being honored is the expectations of the sharing service. If those expectations are dashed, allied relations are impaired.

I have voiced concern in the past about the breadth of originator control. In it most acute form, I fear a mosaic of intelligence services, each persuading their national courts that the good name of the service in the intelligence community depends on tender assessments of intelligence-sharing practices.  Intelligence sharing thereby becomes a zone of relative impunity.

In voicing this preoccupation, I am not implying a conscious conspiracy, but rather an uncritical application of a cardinal principle that could produce a beggar thy neighbour degradation of accountability.  There is something disturbing about like-minded countries with similar due process traditions protecting the banal shared intelligence of other such states, all doing so simultaneously in a sort of circular fashion.  I have heard some defence lawyers with strong views on excessive claims to government secrecy call this phenomenon "intelligence laundering".

For their part, courts clearly have struggled with the concept of originator control, as witnessed most dramatically in the Binyan Mohamed case.

And since I come from a tradition wary of government secrecy, I too often look for chinks in government claims in this area.

And so I was struck this past week by a contrast.  On the one hand, in security certificate cases and elsewhere, the government claims serious adverse effects where originator control is disregarded, to the point that it fears even going back to allied agencies to ask for a (voluntary) relaxation of the control strictures. The fear is that even asking for this rollback sends the wrong message about reliability.

And yet, this last week we had statements from the minister of public safety suggesting that there were no pernicious consequences to Canada's intelligence relationships from a spying scandal in which a naval officer passed on entire thumb drives worth of allied secrets to the Russians.

On its face, this latest position is very difficult to reconcile with the government's traditional claims in security certificate cases.  Recall that in the latter, we are discussing controlled, court-supervised disclosure in cases in which people might be deported to torture.

However, in speaking to those better versed in these things than I am and in parsing Minister Toews statement, there may be one key reason for this apparent incongruity: the intelligence community is more sensitive about systemic erosion of originator control than it is with the occasional, one-off, high profile spy case. 

Everyone has their occasional traitors.  More difficult to continence for security services is everyone having courts like the one in the Binyam Mohamed case.

Avoiding a Legally Correct Fairy-tale: The FCA Sellaturai decision and bringing counsel "into closed"

NSL, ch. 10, pp. 414 et seq.

In July, the Federal Court of Appeal released its decision in Sellaturai, an immigration inadmissibility case in which the government inadvertently disclosed national security-related documents to the appellant, and then asked for them back.  The Federal Court ordered the documents sealed and returned, and redacted documents were released to Mr. Sellaturai in return.  Counsel for the latter was now presented with the dilemma of representing her client in submissions on the merits in the inadmissibility case and/or challenging the redactions as excessive while knowing the content of the now sealed originals.

There have been several cases now in which secret documents have been disclosed by mistake, and the jurisprudence strongly supports the view that such inadvertent disclosure does not waive the national security confidentiality claim.  The reality, of course, is that the genie has escaped the bottle -- upon disclosure, those documents have been reviewed by counsel and potentially her and his client or others.  In these circumstances, a court order does not strip knowledge from people's minds.  It can, however, limit how they use that knowledge.  Counsel may be confined to making submissions on the strength of officially redacted versions, creating an impossible quandary where knowledge of the content of the redactions cannot be used to attack the scope of those redactions (or raise issues relating to the underlying case).

In Sellaturai, the Federal Court of Appeal quite rightly noted that fairness would be impaired in this situation.  It's solution, however, is a bit equivocal.  It sends the matter back for re-consideration of whether a special advocate (labelled an amicus for the procedural purposes of this case) should be named as a solution.  It does not close the door, however, to alternative remedies.

Upon that reconsideration, it should be hoped that the Federal Court will not simply follow the logic of our increasingly complex special advocate "quick fix". On the facts in Sellaturai, the situation might be most sensibly remedied by bringing the appellant's counsel themselves "into closed" -- that is, confidential, closed door proceedings.  In this space, the lawyer could zealously represent the interests of their client without worrying about partitioning their knowledge into what they can officially know and not know.  After all, the national security damage has been done by the initial, inadvertent disclosure.  Humpty Dumpty lies shattered.  And it is always better for a client to be represented by their lawyer than by some third-party proxy, kept at some degree of arm's length.

The special advocate is that proxy.  This approach incorporates a security-cleared lawyer able to represent the interests of the individual in closed proceedings.  It is the system used in circumstances where there has been no disclosure of secret documents, but fairness (and constitutional necessity) requires a least some means of testing secret documents in an adversarial setting.  Special advocates are a means of constraining the circle of people who see these documents while maintaining at least an approximation of procedural fairness.  That is the system's sole virtue and only justification.

But it seems a much less likely (and much more inappropriate) solution to the dilemma posed by a Sellaturai-like situation.  There, adding a special advocate simply adds to the number of people who see the secret document, with the sole, doubtful gain being an ability now of maintaining the total fiction that the appellant and their lawyer don't know what's in these documents.  Presumably, everyone concerned would dance around this awkward fact in their interactions, producing a form of bizarre legal theatre. 

In the final analysis, we would be left with a legally correct fairy-tale: that of the naked emperor who everyone knows is naked but where all wilfully deny that reality.

 

New Senate report on anti-terrorism: good but with gaps

The Special Senate Committee on Anti-terrorism has released an "interim" report, entitled "Security, Freedom and the Complex Terrorist Threat: Positive Steps Ahead".  On balance, this is a reasonable report, that makes plausible (if sometimes quite general) recommendations.  A good portion of the report resuscitates the Air India inquiry idea of a enhanced National Security Advisor able to compel increased information flow between national security agencies.  To date, this idea has been rejected by the government, perhaps on sound grounds.  (See discussion here).  Other portions of the report deal, inter alia, with critical infrastructure protection, radicalization, profiling and assorted other anti-terrorism issues.

The Twilight of a Federal Court Section 38 Function?

National Security Law, ch. 10, pp. 405 et seq.

 

As discussed in National Security Law, Canada employs an institutionally complex system of limiting disclosure of national security-related information in court (and other) proceedings.  The core provision, found as s.38 of the Canada Evidence Act, places adjudication of whether this information can be withheld by the government in the hands of designated Federal Court judges, even if the disclosure question arises in criminal trials in the provincial superior courts. 

Flogging the Dead Horse on Special Advocates and Continued Communication

General Commentary

Over the years, I have been involved in innumerable conversations about the Canadian special advocate system versus the UK special advocate system versus the system used by the Security Intelligence Review Committee (SIRC) (in dealing with the in camera and ex parte portions of complaints against CSIS).  In particular, I have been among those advancing the argument that the UK system was (and remains) worse than the SIRC system, and that the Canadian system should draw its inspiration from the latter and not the former. 

State of the art in Canada Evidence Act national security jurisprudence

National Security Law, ch. 10, pp.398 et seq.

The Federal Court's recent decision in Canada (Attorney General) v. Almalki, 2010 FC 1106, constitutes a thorough synthesis of the Federal Court's jurisprudence on Canada Evidence Act, s.38, confidentiality claims.  Section 38 applies where the government resists disclosure of information in (this case, a court) proceeding on grounds of national security, national defence or international relations.