National Security Oversight: “If it ain't broke, don't fix it”.

  • National Newswatch

On the heels of the Snowden revelations concerning activities of the U.S. National Security Agency, a number of politicians and academics have advanced proposals to enhance oversight of Canada's intelligence community, in particular, the Communication Security Establishment Canada.  Most of these ideas have at their core either the establishment of a super review body for all the intelligence agencies or the resurrection of a minority Liberal Government proposal, made in 2005 in response to opposition demands, to establish a Committee of Parliamentarians who would oversee the activities of the intelligence community.  It is to be noted that since coming to power in 2006 the Conservative party has not established such a Committee.There is no doubt that in a democracy there is need for robust oversight of intelligence agencies.  Since 1984 the Canadian Parliament, in contrast to the vast majority of countries, has taken steps to articulate in legislation what its intelligence agencies are authorized to do, strengthened Ministerial accountability, and established independent oversight bodies that provide reports to Parliament.  There is nothing to suggest that these oversight bodies are not fulfilling their assigned roles.When assessing the merit of any proposal to improve oversight of our intelligence community we must bear in mind that the reasonableness of these proposals will be considered not only by Canadians but by our international partners as well.  A great deal of the intelligence that we require to protect our security is provided to us by these partners with whom we have shared security interests.  In that regard, the information that we hold is their information, which has been acquired through their expenditure of significant financial and human resources.  Loss of access to that information or diminution of the amount shared would reduce our security.In light of the increasing interaction between agencies such as CSIS, CSEC and the RCMP there is merit for some enhancement to the powers of the respective oversight bodies.  Enhancements should include an ability to conduct joint investigations and to share information relevant to each review body's mandate. Further, each review body ought to have the authority, with limited exceptions, to access all information but for cabinet confidences.  The position of Chair of the review body should be a full time position for a defined period, so that the incumbent can acquire the requisite knowledge and experience.  The current requirement that the CSEC Commissioner be either a supernumerary or retired superior court judge should be eliminated and provision made for the appointment of additional members who would bring expertise beyond the realm of the law.These enhancements to our existing review bodies would not increase the risk of unauthorized disclosure and they would address the principal concerns flowing from greater interaction amongst our intelligence agencies.  As noted above, there have been suggestions that we need a super oversight body, cobbled from the current review bodies with the suggested addition of a potpourri of folks drawn from the ranks of past or current parliamentarians, the judiciary, civil society, etc. They would look at the universe of intelligence activity, i.e., CSIS, CSEC and the RCMP, in respect of its responsibility under the Security Offences Act for counter espionage and counter terrorism.Aside from the questionable merit of the size and mix of the proposed membership of that super review body, there is a significant security risk to establishing a review body that can access such a vast array of classified information.  By way of illustration, the Security and Intelligence Review Committee (SIRC), which is responsible for review of CSIS activities, has for a number of years asked that its mandate be expanded to encompass the CSEC.  That would have provided it with access to the totality of Canada's national security and foreign intelligence collection capabilities and activities.In the period during which SIRC was requesting this expanded mandate, Mr. Arthur Porter in 2008 was appointed as a member of SIRC and was named Chairman in June of 2010.  This is the same Arthur Porter who is currently under arrest and contesting his extradition to Canada to face serious criminal charges for activities that took place during his tenure with the S.I.RC.  He is the same person who is alleged to have had business dealings with a convicted Russian arms dealer prior to his appointment to the SIRC.  Mr. Porter resigned from SIRC after having served some 26 months with that review body.  The allegations surrounding Mr. Porter no doubt occasioned significant angst amongst officials at CSIS, and their international partners, as to potential harm that he may have occasioned.  How much more serious would those concerns have been if he had access, as of right, to information held by both CSIS and CSEC?The subject matter of activities undertaken by these agencies -- national security threats, collection of foreign intelligence and criminal investigations -- are sufficiently distinct that they merit their own specialized review bodies coupled, however, with the ability to conduct joint investigations as appropriate.  Such “as needed” joint investigations are significantly different than an across-the-board access as of right to classified information either in furtherance of an investigation or audit.The Committee of Parliamentarians model of oversight, which would include representatives from the House of Commons and the Senate, is a proposal, which I believe also has little merit.  The proposal is grounded upon the basis that these select individuals would have access to classified information held by Canada's intelligence community.  The operating premise of the proposal is that the involvement of these esteemed individuals would, by its very nature, provide assurance to Canadians that all is well.Surveys conducted of the public over the years wherein Canadians are asked to rank 30 professions in order of trustworthiness consistently rank local and national politicians at the bottom.  Professions such as firefighters, nurses or pharmacists come in with 90 % plus approval, whereas politicians bottom out at 7%.  With the latest scandals at the federal, provincial and municipal levels, the 7% figure may very well drop further.  It is difficult to see how broad ongoing involvement of parliamentarians in the details of national security activities will be helpful.However, if politicians and others wish to engage in this vitally important area, with access to classified information, would it not be prudent to subject them to the same scrutiny as public servants as to their loyalty and trustworthiness?  Not just upon appointment but also on a continuing basis?  That scrutiny would entail: completing a detailed questionnaire as to their employment activities for the past 20 years; a listing of information on their immediate family members as well as siblings; references; a criminal records check coupled with interviews by a security investigator of friends and neighbors; possibly a psychological profile; a confrontational interview (1 to 2 hours in duration concerning lifestyle, finances etc.); and a polygraph examination (i.e., have you ever lied)?  Having successfully passed this process they would then sign a document indicating that they are “a person permanently bound to secrecy” as found in section 8 of the Security of Information Act. They, like all employees of CSIS and CSEC, would be subject to the unique criminal sanctions contained in sections 13 and 14 of that Act in respect of information to which they were made privy.Doubtless there are those who believe that the political class has been unjustly maligned and that their standing as parliamentarians should exempt them from a rigorous security clearance process.  What does recent history have to say in that regard?  We have the example of Maxime Bernier, the Minister of Foreign Affairs from 2007-08, who left classified and sensitive briefing notes for a NATO meeting at the residence of his former girlfriend, who happened to have had romantic relationships with members of the Hells Angels.  Currently, two former Chairs of the Senate's Standing Committee on National Security and Defence have left their respective party's caucus and are awaiting the conclusion of investigations into their personal conduct.  If a Special Parliamentary Committee were established, these individuals as Chair of that Committee would have been the Senate representatives.The security of the nation is the sole responsibility of the Prime Minister and the Ministers to whom the intelligence agencies report.  It is not a responsibility that the Executive can offload to a Committee of Parliamentarians.  Nor is it an area that lends itself to a mixture of academics and NGOs sitting on a super review body. As Benjamin Franklin said “Three may keep a secret, if two of them are dead.”The thorough and thoughtful efforts of the joint Committee of Parliament in 1982, which lead to the creation of the CSIS Act in 1984, provided us with a credible model for independent review of the intelligence community. Canadians would be well served by building upon this balanced “made in Canada “model, a model that has proven its worth over almost three decades. There is merit in the observation made by Bert Lance, a member of the Carter administration who advised that “ If it ain't broke, don't fix it.”Paul E. Kennedy is a former Chair of the RCMP Public Complaints Commission, former Senior Assistant Deputy Minister of Public Safety and was legal counsel for both CSEC and CSIS.