national security

Bill C-59 Flowcharts: Revised and Expanded

Once more unto the breach...

Bill C-59 will hopefully, finally, soon (?) inch its way to the senate committee, after second reading (still underway) in the senate. I confess, I am looking at the parliamentary calendar and starting to feel a bit nervous. As readers of this blog or listerners to "A Podcast Called INTREPID" will know, I do not embrace every aspect of C-59. But I think it a vital bill -- and a vast improvement on the status quo -- measured on both accountability and security grounds.  And in its absence, that status quo will oblige a number of public interest groups to reignite their various court challenges. (If I were the government, I'd be worried about at least some of those challenges.) And watchdog entities like SIRC will have to continue issuing reports saying CSIS is in non-compliance with its current laws (in relation to datasets) and the CSE commissioner will be obliged to continue its decade-long complaints about statutory ambiguities. None of this is sustainable. And meanwhile, our security services would have all the powers and competencies necessary for the analog era. So this is an important law project.

But it is also important for people to understand what is in this complicated bill. I have reached my 20th year as a lawyer, and I continue to believe the most important thing I ever learned in law school is how to reduce a complicated area of law to a decision-tree flow chart. Unless you can make those boxes in the flow chart connect, you are missing something, or the law is missing something. So I continue to make such charts and devices, usually for my personal understanding.

In the event, however, that my labours are useful to others, I post my revised and expanded bill C-59 flowcharts. These now do two things: 1. They outline how CSE's new mandate powers will operate, and the checks and balances on those. 2. They show how CSIS's security intelligence, threat reduction, foreign intelligence and "dataset" (bulk data collection and retention) regimes will work (and the checks and balances on those), if C-59 becomes law.

I have done my best *not* to make mistakes, and have shared these charts with knowledgeable people who have made helpful comments. But caveat emptor -- there will be glitches. Also, there are areas where provisions may be interpreted differently. I have tried to flag those areas where I know others have a different take -- that provides evidence either that I am idiosyncratic or that the provision in question is ambiguous. And then I have also flagged areas where I have concerns that I know I am not alone in having. (Those are in the red boxes.)  Here, I feel danger lies, as these uncertainties could be tomorrow's controversies.

If anyone spies any errors, please let me know.

Revised C-59 Flow Charts:

1. CSE Manadates (as of Senate first reading)

2. CSIS Powers (as of Senate first reading)

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.

Agenda for National Security Law Day

Today, the government will introduce the blandly titled "Act respecting national security matters" in the House of Commons. Kent Roach and I have cleared the decks in order to provide prompt analysis. None of that analysis will spring fully formed, and will require weeks of careful contemplation, revision, rethink. But we have long since overcome the academic resistance to "hot takes", probably to our considerable peril. (There will be typos). So this is our plan:

  • The early arrivals will probably be government backgrounders. I generally do not like backgrounders, since they tend to be written in happy-face emoticons. It's all about the legislation. Legislation is the "doors and corners where they get you" that Miller warns about in The Expanse (excellent series streaming on CraveTV, by the way. Great books for scifi fans). But I will start tweeting out initial reactions to the backgrounders in an effort to "take the temperature" on this new legislation. My twitter account is @cforcese.
  • Once we have eyes on legislation, we will do a quick diagnostic.  First out the gate, we shall post a short oped-style piece. Maclean's has generously reached out to offer to work with us.
  • Along the way, I may jot down some issue-specific provisional comments via this blog space.
  • I shall be doing some media -- right now CBC Power & Politics has invited me on this evening's program for a quick analysis.
  • By tomorrow morning, Kent and I hope to have a longer "report card" style assessment, juxtaposing the new legislation against that which ails Canadian national security law, post bill C-51. Our jump-off point in preparing this assessment are the recommendations contained in our book False Security and those made in our response to the government's Green Paper consultation on national security. The IRRP has kindly agreed to work with us on this piece.
  • We have also sketched out the template for a longer, issue-specific working paper. As has been our pattern, we will post that on our SSRN website, and announce it here and on twitter. This longer piece may take a few days to produce -- much hinges on what is in (or missing from) the new law.
  • Since I imagine the new law proposal will have something or other in it requiring me to modify my teaching materials for the uOttawa National Security Law course this Fall, I will prepare some short video primers on aspects of the new bill periodically over the summer. As is my practice, these will be posted open access on my Vimeo videoblog feed. I will provide an organizational table of contents on this blog space.
  • Finally, this bill will probably be the impetus for Stephanie Carvin (NPSIA) and I finally to pull together a national security and policy podcast show, inspired by Lawfare's podcast, and that done by Bobby Chesney and Steve Vladeck. We shall not be able to compete in terms of quality or quantity (they have unusual presidential material to work with!). But there really is limited Canadian content on national security in the Canadian podcast space, so we figure it's worth a try. I am the law person, Stephanie the policy person. She'll be interesting. I'll be boring. We'll be calling on a lot of our friends in academia and (to the extent they are able) government to be guests.  You've all been warned.  When the time comes, we will trumpet how to subscribe and listen. (This will be different from the more doctrinal podcasted summaries of national security law posted here, though I suppose I will eventually need to update those as well.)
  • Very soon, I will be disappearing into the summer writing cave and archives here and far yonder to finish my book on the 1837 destruction of the steamboat Caroline on the Niagara River. (If you want to understand how, legally, the US and its coalition partners can be fighting Daesh in Syria, the Caroline incident is your starting point. This book has been a fascinating deep dive into a terrifically interesting clash, with repercussions that echo to our present day. The facts of the Caroline have often been misunderstood, so it's also an incredible "cold case". I hope for a massive readership and a Netflix series.)

See you on the flipside.

Enhancing the National Security and Intelligence Committee of Parliamentarians: Reduxed and Reduced

My part of the joint submission that Kent Roach and I made yesterday to the Senate SECD committee, studying bill C-22, is posted here (just after the earlier Commons testimony).  C-22 creates a National Security and Intelligence Committee of Parliamentarians -- one that would be security-cleared and entitled to see (at least some) classified information.

Also included in my document is an updated table comparing the C-22 proposal to parliamentary review bodies in the United Kingdom, Australia and New Zealand.

Discerning readers will note that Kent Roach and I have, as the saying goes, "put water in the wine" relative to our position at the Commons. There, we called for full C-22 committee access to classified information. But we live in the real world: having had a kick at the can, it is clear that this level of access is not going to happen.

So at the senate, we proposed some modest compromise positions that we think might bridge the distance between the government and opposition. Such a bridge is unusually important here, with a body whose members will be those same parliamentarians. There needs to be a shared commitment and confidence in the body, or it will suffer from a failure to thrive. (See my discussion here. I really hope that rumours of an opposition boycott once the committee starts-up are exaggerated -- this is not a body so anemic in its powers that it should attract that treatment. Nor should any party use national security to triangulate on partisan advantage. That way, madness lies.)

There is now also a measure of urgency. This bill has been in Parliament almost a year. I have little doubt that the government could get a delayed bill through after a rumoured prorogation. But we are running down the parliamentary calendar. Not only will other matters compete for attention, but also it takes considerable time to stand-up a new review body. For instance, even with existing national security review bodies, training a new reviewer takes roughly a year. Starting from scratch means, among other things: determining & security-clearing the membership, finalizing the budget, hiring an executive director, hiring staff (and the body must be well staffed), security-clearing the staff, acquiring secure facilities, putting in place document handling safeguards, establishing protocols for information-sharing by the security agencies (and existing review bodies), establishing internal rules of procedure (including regulations governing that), setting review priorities and...starting actually to fulfil the committee's mandate.

We are talking years before this body is fully operational. We have two years until the next election. Doing all this in an election year would be a very bad idea. And then, during the election the committee ceases to exist, and after the election, its composition will change.

The current C-22 proposal isn't perfect. But even on first reading, it was better than the earlier government bill under the Martin government. After the Commons process, it is much better. It also compares favourably to the systems in other Westminster democracies.

The glass is three-quarters full. Perhaps three-quarters full of watered wine. But at least there is wine. Indeed, at least there is a glass.  Even water. The alternative is: vacuum.

Let's get this done.

Diplomatic Protection of Canadians: Time to Ratify Optional Protocol to the Vienna Convention

The House of Commons Foreign Affairs Committee is reportedly set to study Canadian consular practices and procedures starting this Fall. This has been an important issue since the Arar and Iacobucci commissions of inquiry and remains an issue -- especially for dual national Canadians. It is possible the policy on (not) paying ransom where Canadians are held hostage by terrorist groups may also be part of the study, a matter that has attracted some attention lately.

A decade ago, I wrote a sequence of law review articles on diplomatic protection and consular relations in international and Canadian law. These articles deal with international law and the unusual peril faced by dual nationals [behind paywall], the law of diplomatic protection and antiterror rendition, and the legal status of diplomatic protection in Canadian domestic law.

Nothing much has changed in the last decade to overtake the conclusions reached in these articles, although the Supreme Court's two Khadr decisions clarify the circumstances in which Canadian conduct overseas in relation to a Canadian can transgress the Charter of Rights and Freedoms.

One other thing that has not changed: Canada still has not become party to the Optional Protocol to the Vienna Convention on Consular Relations.

The Vienna Convention establishes the treaty bases of basic consular guarantees.  See in particular Art 36.  For its part, the Optional Protocol allows disputes concerning a state's failure to permit consular access to be taken to the International Court of Justice.

The Vienna Convention has been an issue in several ICJ cases, including ones focused on whether the United States meet its consular relations in terms of death penalty cases.  See LeGrand and Avena.  And very famously, it was an issue in the Tehran hostage-taking case in 1980.

In each instance, the Optional Protocol was (at least one) of the bases for ICJ jurisdiction -- and close observers of international law will know that ICJ jurisdiction is often a huge stumbling block.

But for reasons that I have never understood, while Canada is party to the Vienna Convention, it has not acceded to the Optional Protocol.  That is true even while countries like...Iran... have. 

And so, as has often been the case, when Canadians have been detained (and in at least one case killed) by Iranian authorities, and along the way violated the consular relations treaty, Canada has no recourse to the World Court.

I have no idea why Canada has failed accede to the Protocol. I can't think of any good reason.

And so if I were to have a single recommendation for the Commons Foreign Affairs committee (and for the Canadian government), it would be: time for Canada to accede to the Optional Protocol.

C-22 National Security Committee of Parliamentarians Redux: The Good, the Bad, and Avoiding the Ugly

By all accounts, bill C-22 will complete third reading in the Commons next week and will be off to the Senate. But things have not been going all that well.

The Good

C-22 would create a security-cleared national security committee of parliamentarians (CoP). For the first time in Canadian history, parliamentarians who don’t also happen to be ministers would be entitled to access at least some classified information in reviewing Canada’s national security framework and activities.

This is a big deal.

For one thing, Canada is essentially alone among peer states in shutting parliamentarians entirely out of the secrecy tent. 

For another, this idea has been bandied about in one form or another in Canada since the early 1980s. All the official political parties have supported the idea at one point or another. Under the Martin government, an ad hoc parliamentary committee studied the matter and issued a comprehensive report.  The government itself released a detailed discussion paper.  And there was an actual bill introduced in Parliament – that then died with the Martin government.

So in reading what follows, it is important to keep a clear-eyed view of an essential truth: almost any (proverbial) loaf is better than the non-existent loaf we’ve had to date.  

Elsewhere, I have advanced arguments as to why a CoP is important.  But no one can reasonably claim it is a panacea.  No one can reasonably claim that even the most legally formidable CoP could burrow into the deep recesses of the security services and unearth facts that the security services were determined not to share. 

And so everything has always depended on a whole bucketful of good faith: Good faith that the security services are acutely aware that they depend on social licence and they operate in a system built on the rule of law. 

And good faith that a CoP will be something other than another venue in which partisan politicians will play piñata. That is, the CoP must be a place willing to embrace complexity, recognize wicked problems and grapple with nuance.

If you scoff at either of these good faith pre-requisites, then there is no point reading further. And in truth, the idea that parliamentarians could and would meet the good faith standard has been greeted very skeptically in a lot of different places over a good number of years.

In some large measure, C-22 constitutes a suspension of this worry.  And in large measure, that worry is superseded by realization that all of us (the security services included) would benefit from a more sophisticated parliamentary and public discussion of national security.

The Bad

But aspects of the worry lurk, and they explains the structure of C-22.

So where did we start on that structure?  Let’s be clear: even when first introduced in Parliament, C-22 was stronger than its Martin government predecessor.  And while there is some variation of opinion on this, I believed (and continue to believe) that on paper it was (and is) stronger than its Australian and UK analogues.[1] (Whether it will in practice depends on that intangible: the bucketful of good faith).

In other words, C-22 was (and is) at least a half loaf.  But, of course, any half loaf is…missing a half loaf.  And so the parliamentary process is where parliamentarians have a chance to consider a law project.  And I am grateful and appreciative when those parliamentarians call on those of us who are struggling to research and analyze these kind of things.

And so my views (expressed with colleagues) have been: good law project; important development in Canadian national security accountability; has shortcomings that can be fixed.  Put another way: C-22 was a Volkswagen, with some doubtful emissions control results.  With amendments, it could be a BMW.

Without rehearsing all of those shortcomings, the key issue has been: will the CoP have a sufficient entitlement to see the information it needs to do its job? For more on that question, see here.  My view has been that in its first reading version, there were excessive limits on the CoPs access to information that opened the door to too many roadblocks, even when everyone was operating in good faith.  That is because even people operating in good faith can disagree.  And good faith disagreements over sharing of classified information may be the biggest challenge in national security law and policy.  So it would be nice to obviate that inevitable problem by giving the CoP indisputable access.

When C-22 was vetted and amended at committee stage of enactment, we actually got there: full access, except Cabinet confidences. This put the CoP on the same footing as our existing expert review bodies for CSIS and CSE.  I think this is wise and justifiable (see here).

But the manner by which the legislative committee got to these amendments was, well, confusing and did not necessarily reflect the intent of all members of the committee. That is, there were politics in play. And so what had to that point seemed to me to be a very high-calibre legislative deliberation (reportedly) frayed into something less high-calibre.

Predictably, the government put back the legal restraints on access to information when the bill came back to the House on report stage.  Now to be clear: they didn’t put everything back.  They definitely headed in the right direction.  For one thing, they did not restore fully the list of automatic information exclusions.  For instance, military intelligence is no longer automatically excluded from CoP consideration.  But yes, CoP access to information can be carefully controlled by the executive.

And so the question is: what to do now?

Avoiding the Ugly

I’ll offer a few oblique thoughts, for what they’re worth.  Above all else, let’s cool the jets. C-22 is not like other laws.  With most other laws, politicians can irritate each other in Parliament, a bill can pass and the resulting law can still function. 

It can still function because it doesn’t depend on the same politicians now sitting on the institution created by the law, and making it work. 

The C-22 CoP is radically different.  A committee of parliamentarians born in partisan acrimony will die in partisan acrimony.  If the opposition parties see the CoP as a unilateral “Liberal project” bereft of any input attributable to their interventions, they will have no political incentive to seeing the CoP succeed. We may be able to overcome this kind of politics – the actual members of the CoP will not be brick-throwers from their parties. 

But the absence of cross-party buy-in and an accrual of partisan acrimony reduces the prospect that the CoP will work, at all.  The members of the C-22 CoP will need to consolidate around a shared mission, shared professional culture and shared mores of behaviour. 

And if they don’t then the skeptics will be proved right: parliamentarians should never be let anywhere near classified information.

So let me step even further outside of my lane: to get there, there needs to be water in everyone’s wine. The amendments that have been made since first reading close some gaps.  We aren't that far off from a compromise.

What precise changes would bridge the current political crevasse is a matter best left to those who can speak for their parties.  But surely, this is no longer a debate between Volkswagen and BMW.  Instead, we may be within reach of a nice Subaru Outback PZEV with the technology package. (Full disclosure: I have an Outback. It plows through snowy roads nicely).

And so the task shall fall to the Senate. It needs to find us an off-ramp from the impasse.  And along the way, it needs to be thinking about the day after C-22 becomes law. My key point in this essay of mixed metaphors: A parliamentary process that exhausts the stock of good faith needed to power a CoP cuts off the nose to spite the face.

 


[1]                 There is some element of apple and oranges in making this statement. And much depends on how you weight and offset differences in various areas. (For me, breadth of mandate and access to information are the two most important considerations. I also worry a lot about staff resourcing and coordination with the expert review bodies.) For a table that compares the systems in C-22 (as it was at first reading), UK, Australia and NZ, see here.

But to amplify on my view: I think the subject matter and the institutional remit of the C-22 committee is broader than the UK and Australian analogues. (Although Richard Bolto’s fascinating recent study suggests that Australian committee is increasingly able to review operation matters.)

Access to information appears likely to be better for the C-22 committee than the Australian committee – or at least there appear to be more checks and balances on denials.

It is probably a toss-up as to whether the general language in the UK Act on denying access to information is narrower or broader than the more detailed language in the C-22, but what I like about C-22 is that exclusions don’t reach such things as solicitor client privilege.

(In the UK, my sense is that the access to info is a negotiated outcome in some instances, and so it is hard to compare laws and determine what happens in practice. But what is really important is that UK exclusions from information are discretionary -- that is, the government consciously chooses to deny information.  In C-22, there is now a (shorter) list of mandatory exclusions. But that is still a problem: "We can't give you this information, the law stops us. Blame the law". Hard to evolve if that is the standard. Recrafting at least some of these automatic exclusions -- especially the one dealing with law enforcement -- into discretionary exclusions would be a good compromise and something to learn from the UK. Meanwhile, the MoU between the UK ISC and the UK Prime Minister suggests that agency power to deny UK ISC access to information will be exercised “very rarely”.  Hint, hint on where another line of compromise over C-22 might be drawn).

The C-22 regime has more built in efforts to try to web the expert bodies and the C-22 committee together.  On paper, there is more robust staffing powers in C-22. 

The post-2013 UK ISC has some attractive features not reflected in C-22, including the manner in which committee membership is determined.  My own view is that these are not all that consequential. 

For other comparisons that take a less positive view than I do in comparing the C-22 CoP and the UK ISC, see here and here.

 

Create a Strong National Security Committee of Parliamentarians: Our Views

Wesley Wark, Ron Atkey, Kent Roach and I have collaborated on a joint op-ed favouring the strong national security committee of parliamentarians produced by amendments to bill C-22 by the Commons standing committee.  We hope the government chooses to support those changes through the balance of the legislative process.  Our piece appeared in the Globe and Mail here.

Launch of "Secret Law Gazette": Security Service Policies & Rules released under ATIP

I am pleased to launch my first new feature of 2017 for this blog space: the Secret Law Gazette.

About this Project:

The Secret Law Gazette publishes "secret laws" in the area of national security in Canada. "Secret laws" include ministerial directives, memoranda of understanding, and internal policies and procedures which affect and govern the conduct of Canada's security agencies, but are excluded from the regular publication requirements for Canadian law.


For a fuller discussion of the concept of "secret laws", see this posting and the documents linked to it.

About the Documents:

The documents archived here are versions of these instruments released through legal process -- either through access to information requests or court proceedings. The Secret Law Gazette is not a whistleblower site. I do not post materials that have been leaked or otherwise released through unofficial means.


How Secret Law Gazette is Organized:

I have assembled documents into "collections", mostly by category of instrument. I have also prepared occasional "exhibits" that categorize documents by subject matter and occasionally provide more description and analysis. These usually are outgrowths of other research projects on which I have worked. In those cases, I have provided links to academic and other articles that rely on the documents in the curated exhibits.

Document descriptions can also be keyword searched (note that best results come by selecting "boolean" search in the pull down menu at the top right of the webpage).

A Collective Effort:

I welcome contributions from others. This project reflects a commitment to transparency and the rule of law. It is a private intiative that I conduct in my spare time, and in support of my academic research projects. It would, therefore, benefit from serious "crowdsourcing" of materials. I do ask, however, that materials possess a reasonable "chain of custody" demonstrating their provenance as official government documents (that is, released through ATIP or legal process or the equivalent).

Consolidated version of Bill C-22 now available

The consolidated version of the C-22 is now posted.  It now returns to the House on report stage where the plenary Commons will decide whether to accept the standing committee's amendments.

In a prior post, I offered thoughts on the Standing Committee amendments that give the C-22 committee more robust access to information. (Note I have tinkered with these views on review of the full consolidated version, and reversed a view in which I urged that the government could still resort to the Canada Evidence Act). 

At risk of rushing out another blog post during a busy time of term, let me suggest why I think the Standing Committee amendments strike an appropriate balance on granting the C-22 access to classified information.

The bill proposes security-clearing parliamentarians, surrendering their parliamentary privilege and binding them under the Security of Information Act.  These are dramatic safeguards that do not need, in my view, to be supplemented by more limited access to info than is possessed by Canada's existing review bodies, SIRC and OCSEC.  (It is radical from a comparative perspective to security-clear members of the legislative branch, and to subject opposition parliamentarians to intrusive assessments by the executive). Personally, I think these features are a reasonable quid pro quo, if those parliamentarians then have expansive access to info. And I think the SECU surgery accomplishes that. (And the a ministerial veto in 8(b) over some C-22 committee investigations persists -- it is more constrained with the amendments, but still exists.  This is a veto that does not exist for SIRC or OCSEC.)

I strongly suspect that this sort of full C-22 committee information access is not favoured in the security services – but so far, the only justifications that I hear for this view are a visceral “parliamentarians can’t be trusted” and a generally ill-explained “we need to walk before we run”.
 
I think these views discount the extent to which all the walking done in the UK context created a committee with a very mixed record, and a mixed reputation, especially in the immediate the aftermath of 9/11. That is: there is a consequence to setting up a weak system and expecting it to strengthen with time.

These views also discount the fact that our services (at least CSIS and CSE) are habituated to review in a way that wasn’t true in the UK prior to the ISC; being reviewed won’t be a novel experience, and we should be able to leapfrog the UK growing pains. 

And finally, I am just plain puzzled by the argument that parliamentarians are necessarily less trustworthy than say, the former politicians who have traditionally dominated SIRC appointments.  Everything will depend on the quality of the members, and since the PM still holds the ultimate power of appointment, I think that makes it possible to select as wisely as selections are done for SIRC (and ideally, more wisely, given the unfortunate selection in the last decade of a person who ended up passing away in a Panamanian prison). 

I think the experience elsewhere suggests that partisanship can be set aside, and parliamentary review committees don’t leak. 

Nor do I think that we will be so far out of sync with allies that they will balk. The notion that allies will rap Canadian knuckles is entirely a speculative and doubtful proposition, one that can be used in sort of a circular, lowest-common denominator manner to defeat accountability reform.  Different systems are...different. The US can hardly look at the proposed C-22 committee as more sweeping than its congressional oversight system.

And at any rate, different approaches haven't ruptured relations in the past: SIRC has access to third party foreign intelligence (both in law and, as I have confirmed in my inquiries, in practice), something that is not true in many other jurisdictions.  And yet, our relations with allies continue.  Likewise, our special advocate system (including the scope of information access) is likely more robust than the UK system (and doesn't exist in many other places). And yet the Five Eyes relationship continues.

In other words: I take with a large boulder of salt any view that Canada walks the plank if it creates a strong C-22 committee. On the other hand, I fear a Potemkin village if we create a committee that has the power to investigate, but not the information to do so properly.

I hope Parliament endorses the changes made at the Standing Committee.

Stronger Bill C-22 (National Security Committee of Parliamentarians) Goes Back to the House

ADDENDUM: Dec 13: Now that the full, consolidated version of the bill has been posted after committee study, I am thinking that the Canada Evidence Act s.38 argument voiced below is actually a weak one.  See the addendum below.  I am, however, leaving this post in its original form to benchmark my thinking (aka, memorialize my mistake).

 

The Standing Committee on Public Safety and National Security has now reported its amendments to bill C-22, the bill that would create a national security committee of parliamentarians. A number of these amendments are quite significant, but most significant: the amendments greatly constrain the capacity of the government to deny the C-22 committee access to classified information.

This is an important development. As introduced to the House by the government, bill C-22 placed what I have been calling a triple lock on the C-22 committee's access to information. This was a matter of concern, since access to information will be essential for the C-22 committee to perform its functions. There were a number of justifications for this triple-lock, a constraint that does not exist for Canada's two chief expert national security review bodies (SIRC and the CSE commissioner). But basically the justification for the C-22 committee's more limited information access boils down to this: parliamentarians needed to show they could be trusted with classified information.

Even if this suspicion is warranted (and I am suspicious of the suspicion), the triple lock was excessive. This is especially true given that C-22 committee members will be surrendering their parliamentary privileges and will be persons permanently bound by secrecy under the Security of Information Act (and therefore subject to criminal sanction for violating secrecy rules). 

The rolling back of the triple lock so that it, in essence, no longer exists and the C-22 committee is now on a common footing in terms of access to information with SIRC and the CSE commissioner I regard as a good thing, as not only does it remove the prospect of serious and debilitating bun fights over C-22 committee access to information, but it also makes coordination and collaboration with the expert review bodies much easier, at least in principle.  All are now equally into the secrecy tent. 

Still, that rolling back seems to have occurred through a puzzling procedure in the standing committee clause-by-clause review. I fear that some of the amendments may, therefore, be defeated by the government on report stage.

Let me suggest, however, that the government should be content with this standing committee outcome and should now appreciate that they retain a "nuclear" option in terms of controlling access to the secrets it really does not want shared with the C-22 committee: the Canada Evidence Act, s.38.

Among the amendments made by the standing committee is an emphatic power to compel production of information. I think it is even clearer, therefore, that investigations by the C-22 committee are "proceedings" under s.38 of the Canada Evidence Act.  And that means that the government could fight disclosure to the C-22 committee of information prejudicial to national security, defence or international relations in Federal Court.  More than that: it also could issue an Attorney General's certificate to block this disclosure to the C-22 committee should any body, including the Federal Court or the committee itself, order its disclosure.

This certificate constitutes a sweeping power, subject to only rudimentary appeal in the Federal Court of Appeal.  It was controversial when created in 2001 because of its reach.  And it certainly could be used to deny truly sensitive information to the C-22 committee (indeed I think it has fewer checks and balances than ideal).

Bottom line: the government lost its triple-lock on C-22 committee access to information, but it gained its nuclear bomb.

Thus, to suggest that the standing committee amendments went too far would be, in my view, an exaggerated concern.  I hope therefore that the amended C-22 passes muster at report stage.

 

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.

Analysis and Proposals: Security of Canada Information Sharing Act

This short paper prepared as a brief to the House of Commons Standing Committee on Access to Information and Privacy and Ethics outlines the weaknesses of the Security of Canada Information Sharing Act (SoCISA), enacted as part of Bill C-51 in 2015. It proposes a wholesale renovation of national security information-sharing laws. Short of this, the paper proposes a number of detailed amendments to the SoCISA adding precision, coherence and more meaningful privacy protections to this awkwardly drafted instrument.

Enhancing the National Security and Intelligence Committee of Parliamentarians

My part of a brief to the House of Commons Standing Committee on Public Safety and National Security, this paper endorses the proposed Canadian National Security and Intelligence Committee of Parliamentarians, but does so with an important caveat. In this last respect, it focuses on constraints imposed by bill C-22 on access by the committee to certain sorts of classified information. It raises concerns that these constraints may limit the effectiveness of the committee. Also contained in this document is annex comparing the proposed bill C-22 committee with analogues in the UK, Australia and New Zealand. The table in the annex includes details on: general features (such as membership and appointment); mandate and jurisdiction; reporting; access to information; and interface with expert review bodies.

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.” 

The New Abnormal Normal for the Canadian Security & Intelligence Community with…President Donald J Trump

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.

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.

Functions of parliamentary accountability in national security

Bill C-22, creating a National Security and Intelligence Committee of Parliamentarians is before the Commons committee for study this week. In prior posts, I have evaluated the pros and cons on this bill in writing and in video form. For a list of these and other resources, see here.

Oversight vs Review

One of the most confounding, recurring issues is whether this body should do real-time operational "oversight" (in the sense of command/control of the security services) or will be limited to ex post facto auditing of service conduct (what we call "review" in Canadian practice). The terms "oversight" and "review" are sometimes used interchangeably, but in Canadian practice they mean different things.

in conventional Canadian practice “oversight” has traditionally meant operational control and coordination of security and intelligence services, something that is very different than “review”. There is much misunderstanding, therefore, over who does or should do actual “oversight” in this classic sense. The general rule is: the executive. There is also a role for the courts to control security agency conduct through the warrant process. 

We do have serious structural problems in terms of oversight in Canada -- see ch 11 of False Security. But reform here means reforming the role of the courts and the executive.

Parliament and "oversight"

It does not mean giving Parliament an "oversight" role. Legislatures do not really do full oversight, in the command/control sense. And there are some good reasons for this. First, they would likely not be good at it -- a committee of parliamentarians signing-off on realtime operational decisions would create an unwieldy process at best. It would also risk politicizing the process. And indeed, in relation to police operations, it would trench on a concept that in Canada has possible constitutional imprimatur: police independence.We have intentionally created legal distance between police operational decisions and politicians for one key reason: avoiding a political police.

But more than that: if parliamentarians become part of the operational chain of command, they then become useless as reviewers. Their conduct becomes part of what must be reviewed. They will be hopelessly compromised in terms of holding the executive to account. This, in my view, is the single greatest reason to avoid true parliamentary oversight (in the command/control sense).

What about other countries?

It is very important to understand that these terms of “review” and “oversight” have different meanings in different places. When other countries talk about “oversight” they are often talking about what we in Canada would call “review”. And when people talk about the US Congress having an “oversight” role, they refer to bundle of functions performed by Congress and congressional committees quite different from what happens in many other countries, and also different from "oversight" in the Canadian sense. The congressional role includes classic legislative activities, such as passing laws governing the S&I community and approving expenditures. Congressional committees also review, in the sense of probing past conduct. And the US executive also gives some congressional committees advance notification of certain sensitive covert foreign operations by US agencies, which leads some to regard Congress as performing a sort of supervisory function. But in fact, this is still quite different from true operational command and control and coordination.

What about C-22?

The C-22 committee is intended as a review body. And that is entirely proper. Now, to be clear, this does not mean that operations have to be complete before a review commences. Review is capable of being close to real time, and I see the language of clause 8(b) as permitting review touching on on-going operations (which is probably why the government inserted a ministerial veto in this provision -- something that deserves debate).  (The language of "activities" in clause 8 is the common style in Canadian statutes of describing operations by, e.g., CSIS and CSE).

But this examination by the Committee, however real-time or close to real-time, will still be review: scrutiny of activities, not approval or control of them.

The key issue, in my opinion, is whether the Committee will have enough access to information to perform even this function effectively.

And that is where the debate on C-22 should focus. I think, personally, that the strictures on information will make the proposed committee an inadequate review body of operational activities. I could live with that if persuaded that existing expert review bodies will be recrafted to fill long-standing gaps in the Canadian review system. But if all we're going to end up with is the parliamentary committee and we persist with the sort of information limitations found in C-22, we should have modest expectations. I would then worry about the value-added on the C-22 committee in relation to any sort of review touching on operational activities.

 

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.