Thursday, November 21, 2013

More on oversight/review

More commentary on the inadequacy of Canada's oversight/review mechanisms (Jim Bronskill, "'Zero' accountability on spies: Segal," Canadian Press, 20 November 2013):
Conservative Sen. Hugh Segal says it’s “deeply problematic” that Canada lacks a full-fledged national security committee of parliamentarians to keep an eye on spy agencies.

At a national intelligence conference Wednesday, Segal described current oversight of the spy world as a “non-system of zero legislative accountability.”

It features parliamentary committees — including one on which Segal sits — that aren’t allowed to see secret documents and watchdogs that conduct after-the-fact reviews, the senator told a symposium of the Canadian Association for Security and Intelligence Studies.

He pointed to countries such as the United States and Britain where parliamentarians are able to tackle current crises head-on, eliciting candid testimony from spy chiefs.

In Canada, no one — least of all the responsible cabinet minister — steps forward to address the issues when an intelligence crisis erupts, Segal acknowledged.

“Any minister who says, ‘Actually, we have a big problem, I’m going to look into it’ these days is not part of the operative political culture,” he said.

“And I think that is deeply, deeply problematic.”

Segal said there has been a “lack of political will” to address the question with a measure of discretion, balance and focus.

...

University of Toronto law professor Kent Roach told the symposium Wednesday that a national security committee of MPs and senators would not be a panacea for intelligence oversight.

Easter’s bill worries Roach because the government would have “unfettered and unreviewable discretion” to decide what information the parliamentary committee would see.

“So I’m not terribly optimistic about that,” said Roach, who served as part of the research advisory group on the O’Connor commission of inquiry that looked into the Maher Arar torture affair.

Justice Dennis O’Connor recommended changes to allow national security watchdogs to exchange information and conduct joint investigations. He also advocated a co-ordinating committee that would include various security watchdog chairs to ensure seamless handling of complaints and probes.

Roach noted both the watchdog that monitors CSEC and the one that keeps tabs on the Canadian Security Intelligence Service have spoken of difficulty in following the intelligence trail through government because each has authority to peek into just one agency.

It’s time to adopt the “one big committee” approach to spy oversight instead of the current roster of watchdogs working in isolation, Roach said.

“We can be creative with the diverse composition. It can include present or past parliamentarians, judges, experts, civil society — I think that’s totally open, but we need to have a debate about it.”
More from Kent Roach ("Op-Ed: How to hold our spies accountable," Ottawa Citizen, 19 November 2013):
Canadians should be concerned that their accountability house is in particular disorder. The government has rejected the 2006 recommendations of the Arar Commission, which stressed that accountability should keep pace with the increased intensity of the whole of government and transnational national security activities. The heads of the two main watchdogs on Canada’s intelligence agencies have both recently raised alarms that they do not have the authority to chase intelligence threads beyond the agency that they review.

Canada is alone among democracies in not giving even a small group of parliamentarians access to secret information. The Afghan detainee affair underlines the mischief that this can cause in an interconnected world where so much is classified as secret.

Nevertheless, parliamentary review as contemplated in Wayne Easter’s bill before Parliament is not a panacea. The 2005 reforms contemplated a statutory committee that would not enjoy parliamentary privilege. The Joint Intelligence Committee in Britain has not performed particularly well in the post-9/11 era with respect to the possible complicity of officials in torture. This task had to be transferred to the now-aborted Detainee Inquiry and now to police investigations.

Congressional committees have been briefed on most of the notorious American national security activities but have failed to prevent or blow the whistle on them. Briefing in legislators can ties their hands and provide the thinnest veneers of legitimacy and accountability to problematic programs.

Parliamentarians that were briefed in on a dodgy CSEC program would at most be able to demand that the minister of defence or the prime minister know of and take responsibility for the program. This in itself could be important. Nevertheless, it would not necessarily change, stop or reveal the program.

The courts have played little role in restraining CSEC because its activities are authorized not by a judicial warrant but by a warrant from the minister of national defence. This approach is now being challenged by the British Columbia Civil Liberties Association and it remains to be seen what the courts will decide. The government will rely on restrictions that CSEC not target Canadians unless they are assisting the RCMP or CSIS presumably under a valid warrant.

The traditional warrant jurisprudence does not apply well to CSEC and other signals intelligence agencies, given that authorizations seem to relate to broad investigative techniques and not sufficient persons. Accountability mechanisms must seek to control both the necessity for obtaining the data in the first place and subsequent access to the data within and between governments. The Americans are considering having security-cleared special advocates provide adversarial challenge at the warrant stage. This may be worth pursuing in Canada. Alas, the courts have not traditionally policed sharing of information after it was obtained. The review of information sharing requires robust and nimble watchdog review.

In its most recent report, the Security Intelligence Review Committee has raised concerns that the caveats or restrictions on sharing intelligence that the Arar Commission stressed were so important to discipline and control over information sharing seem not to apply in the same way within signals intelligence agencies. Indeed, CSEC seems to have a “second-party” rule that applies to information that it shares with its Five Eyes partners as distinct from the more traditional “third-party” rule used by other intelligence agencies.

Independent watchdog review with powers to initiate systemic reviews and audits is crucial to accountability for signals intelligence. The former CSEC commissioner, however, in his last report echoed conventional wisdom in Ottawa that the Arar Commission’s recommendations for an over-arching structure would only create an “additional super-bureaucracy.” This soundbite approach may play well in some quarters but it ignores how accountability has failed to keep pace with increased whole of government use of intelligence and that the real bureaucracies are our rapidly expanding intelligence agencies.

The Arar Commission recommended statutory gateways that would allow the reviewers to share secret information. The time may have come, however, to have a single body to review the collection and sharing of intelligence throughout government. Australia has moved in this direction, but it would be critical that such a body could follow the information trail throughout government and not only have such powers when authorized by the government.

There is a case for creativity in the composition of such a review body. It could include current or former parliamentarians, sitting or retired judges, civil society representatives, current or former special advocates and others. A diverse body could help inspire public confidence. Such a body would have access to classified information but should put more emphasis on public engagement and outreach. The review body should also have the ability, if necessary, to challenge governmental claims that information must remain secret in court. Such a review body, even more than a parliamentary committee, is necessary to ensure that we have any chance of holding our spies accountable.
Earlier reporting on oversight/review issues here and here.

Update 24 November 2013:

See also Ian Macleod, "Security and privacy: Experts connect the dots as debate rages," Ottawa Citizen, 23 November 2013.

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