Saturday, December 14, 2013

CSE Commissioners: How effective?

CBC reporter Greg Weston raises questions about the effectiveness of CSEC's watchdog, the CSE Commissioner ("CSEC watchdog muzzled, defanged: Greg Weston," CBC News, 13 December 2013):
The revelation that a little-known Canadian intelligence operation has been electronically spying on trading partners and other nations around the world, at the request of the U.S. National Security Agency, has critics wondering who's keeping an eye on our spies.

The answer is a watchdog, mostly muzzled and defanged, whose reports to Parliament are first censored by the intelligence agency he is watching, then cleared by the minister politically responsible for any problems in the first place.

By the time the reports reach the public, they are rarely newsworthy.

The Harper government recently appointed a new oversight commissioner for Canada's electronic spy agency, the Communications Security Establishment Canada. But he will be only part-time until next April.

Even then, Senator Hugh Segal, the chief of staff to former Conservative prime minister Brian Mulroney and someone with a long involvement in security intelligence issues, says any notion of effective public oversight of Canada's electronic spying agency is "more like a prayer" than fact.
Weston addresses some important concerns in this report.

I think his account of some of the legal compliance issues that have been raised by Commissioners over the years is somewhat garbled, but CSE Commissioner reports are written in such deliberately obscurantist language that it's hard to be sure, and I won't even pretend that I have it all figured out myself.

That said, some important legal issues have definitely arisen during the Commissioners' work.

The most headline-worthy example was of course the statement in the Commissioner's most recent report that "a small number of records suggested the possibility that some [CSEC] activities may have been directed at Canadians, contrary to law. A number of CSEC records relating to these activities were unclear or incomplete. After in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law."

The activities in question reportedly took place in the early 2000s, and no actual finding of illegality was made, but the Commissioner's statement was hardly a clean bill of health.

In some ways even more disturbing is the longstanding dispute between Commissioners and the government over the nature of the ministerial authorizations used to enable CSEC to collect communications that may sometimes involve Canadians. It is unclear when Commissioners first raised this issue, but it has been going on for at least a decade.

The Commissioner's 2009-10 report stated that "Commissioner Gonthier was informed by the Minister of National Defence that clarification of ambiguities and other amendments to the [National Defence Act] are a legislative priority. Pending amendments, Commissioners have continued to use the interim solution of applying a qualified opinion, that is, reviewing CSEC foreign intelligence collection activities under ministerial authorization on the basis of the NDA as it is interpreted by Justice Canada. However, past Commissioners have noted they disagree in certain important respects with that interpretation, which highlights the need for amendments to the NDA."

Unfortunately, the Harper government has done nothing to address this "legislative priority" in the years since that report. In the Commissioner's most recent report, retiring Commissioner Robert Décary lamented that "I started my mandate with the expectation that the legislative amendments to the National Defence Act proposed by my predecessors would soon be introduced in Parliament, but this has yet to happen. I am deeply disappointed at the lack of action by the government, which is no longer in a minority situation, to address the ambiguities identified by my predecessors and myself. These amendments — as I have said many times before — would improve the provisions that were hastily enacted in the aftermath of September 11, 2001. The proposals to address the issues raised by Commissioners should not, in my opinion, be controversial."

As Décary's predecessor Charles Gonthier stated in his 2008-09 report, "the length of time that has passed without producing amended legislation puts at risk the integrity of the review process.”

How can Canadians have confidence in the effectiveness of a watchdog whose fundamental job is to assess compliance with the law when those assessments can be postponed essentially forever through the simple expedient of government inaction?

Another concern arises from the fact that the Commissioner doesn't seem to make an ultimate declaration of lawfulness in all cases.

In 2006 the CSE Commissioner began expressing the view behind closed doors that certain CSEC metadata activities that the agency argued were authorized under part (a) of its mandate should properly be considered mandate (c) operations. As Gonthier argued in a letter to the Minister of National Defence, "This is important because it determines the legal requirement (e.g. ministerial authorization vs. a court warrant) in cases where activities may be 'directed at' a Canadian; it also determines which agency is responsible for the information and how the information collected should be handled."

In 2008 CSEC made what the Commissioner considered to be "significant changes" in its practices concerning these activities, and in 2011, following a review of CSEC's new practices, his successor reported that he had "no questions like those raised in previous reviews as to whether such activities would be more appropriately authorized under part (c) of CSEC’s mandate."

The fact that CSEC changed its practices in this case in response to concerns expressed by the CSE Commissioner is laudable, but it doesn't change the fact that those earlier practices existed.

Where is the Commissioner's final judgement on the lawfulness of those practices? Certifying to the public that CSEC acts within the law is the CSE Commissioner's fundamental role, yet as far as we in the public can tell, this question was simply dropped.

It's little wonder that the Defence Minister and other CSEC spokespersons can claim, as they love to do, that in 16 years of reports, CSEC has never been found to have acted unlawfully, if CSE Commissioners are willing to wait for 10 years or more without making an official judgement, will drop questions of lawfulness without ever making a judgement if the behaviour in question is later changed, and, in at least one case, have been unable to make a judgement because of the absence of adequate records.

Why, however, such a claim should be considered a meaningful reassurance under such circumstances is another question.

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