Tuesday, June 03, 2014

The best oversight hearing parliament (n)ever held

As most observers will confirm, parliamentary oversight of the Canadian intelligence community is sadly inadequate. Question period is useless for discussing intelligence matters, few MPs and Senators ever develop any expertise on intelligence-related issues, and the various committees that ostensibly watch over our intelligence agencies spend next to no time examining their activities and have no ability to look at classified information. Efforts to create a special committee dedicated to monitoring the intelligence community and empowered to examine classified information, similar to those that already exist in Canada’s intelligence allies, have foundered on the current government’s unwillingness to act.

With the government refusing to budge, the prospects for early improvement of parliamentary oversight in Canada do not look good. But a document recently obtained through the Access to Information Act by Globe and Mail reporter Colin Freeze may show the way to a easy means of significantly improving the quality of existing oversight.

What Freeze obtained was a briefing document for CSEC Chief John Forster that contains prepared answers for questions that CSEC thought might arise during the Chief’s appearance before the Senate Committee on National Security and Defence in February.

That meeting was highly unusual in that it was dedicated to discussing CSEC and the broader intelligence community. More typically, the Commons and Senate committees that ostensibly watch over CSEC—and are also expected to monitor the entire field of Canadian defence policy, the operations, equipment, training, and welfare of the Canadian Forces, and everything else that falls under the auspices of the Department of National Defence and its $18-billion annual budget (and, in the case of the Senate committee, the rest of the security and intelligence community)—pay little or no attention to CSEC.

Even when CSEC does come up, the discussion is typically brief and superficial. Chief Forster was present, for example, at the meeting of the House of Commons Standing Committee on National Defence last week when it discussed defence-related spending estimates, but CSEC came up only twice during the meeting, in softball questions asked by a Conservative MP. Nothing substantive was discussed about the agency, and Defence Minister Rob Nicholson did all the talking; Forster never said a word.

Except for the rare occasions when CSEC finds itself in the headlines, parliament’s “oversight” mechanisms simply don’t have the time or necessary focus to keep a regular eye on the agency and elicit important information about its activities (or those of the other members of the intelligence community).

As a result, the 87 pages—87 pages!—of answers that were prepared for Forster in February have gone largely unused. The hot topic of the “airport wi-fi” study did get extensively discussed at that meeting, but the great bulk of the information in Forster’s prepared answers was never provided to parliamentarians and thus never placed on the public record.

Until now.

To me, this Q&As document represents the most informative CSEC oversight hearing that parliament has (n)ever held.

The document not only contains information about CSEC’s wi-fi study, which did get extensively discussed at the meeting, it also contains a wide variety of other information about the agency and its activities, much of which has never been published before, ranging from minor facts about the organization (e.g., CSEC’s legal office has eight[!] Department of Justice lawyers working in it) to an explanation of the different cost estimates for CSEC’s new headquarters and a discussion of why and in what ways CSEC collects economic intelligence.

Want to know the basis for CSEC’s claim that no Canadians were “tracked” during the wi-fi study? That’s in there too.

According to the Q&As document,
If CSEC were to track anyone, as we do with legitimate foreign targets outside Canada:
- We would need to know who they are;
- We would need to actively locate and find the individual; and
- We would need to monitor their movements in real-time.
So it’s all about the definition of the word. Yes, CSEC did analyze data to determine the changing locations of specific electronic devices at different times, and, yes, it is often possible for CSEC to identify the owner/user of such devices, but individual identities were not determined in this study, no specific individuals were “actively located and found”, and the study was done after the fact, not in real time. So no “tracking” was done.

You and I may call it tracking, but by CSEC’s definition (and apparently that of the CSE Commissioner), tracking was not done.

Agree with it or not, this explanation is far more detailed and precise than any previous explanation of “tracking” on the public record, and it is helpful to know the basis of CSEC’s claim that no “tracking” took place.

Regular release of Q&A documents like this one would substantially increase the amount of information produced by our existing parliamentary oversight mechanism.

To be sure, regular publication of what is in many ways simply an extended CSEC FAQ, no matter how detailed, can never substitute for in-depth and appropriately skeptical questioning, with extended discussion and follow-up questions, by engaged parliamentarians. The document represents at most half of a good hearing—it’s more a contribution to the informational foundations for effective oversight than a contribution to oversight itself. And even in that respect it presents only CSEC’s side of the story, spun the way CSEC wants to spin it, with inconvenient details omitted and self-serving assumptions unchallenged.

CSEC’s explanation of its actions during the CSIS 30-08 warrants debacle, for example, conveniently omits the fact that CSEC official James Abbott’s testimony during the original hearing was, by his own later admission, “crafted” in order to avoid providing key information to the court, thus breaching his “duty of candour” to the court.

Nonetheless, the regular release and publication of Q&A documents such as this one could make a significant contribution towards improving oversight of CSEC. Such publications would not only significantly increase the amount of information available about these agencies, but by increasing the knowledge base available to parliamentarians and other interested observers they could also foster more sophisticated questioning and more valuable use of the discussion time available when CSEC’s Chief does appear before committees.

It might even be possible to establish an iterative process in which additional questions are communicated to CSEC prior to meetings, prompting it to prepare additional answers that, whether used in committee or not, subsequently become part of the published record and grist for additional questions.

None of this is intended as an argument against more substantive reform of parliamentary oversight, which is desperately needed in Canada and requires much more than just the publication of more information.

But if we can increase the amount of information generated through the existing system by ten or twenty or fifty times, why not make that a regular part of the way things are done?


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