National Post - March 2, 2015
Nationalnewswatch - March 3, 2015
Huffington Post - March 11, 2015
By Colin Kenny
If the prime minister thought public pressure to institute a more robust review system for national security would slowly die down, he has miscalculated.
Last week, a number of former prime ministers and Supreme Court justices penned an open letter calling for the government to keep a closer eye on federal intelligence activities. While certainly increasing the visibility of the issue, the letter was lacking as far as specific policy prescriptions.
There are a number of concrete steps the government should take to address the gap in national security accountability. Chief among those are improving the integrity of the application process for national security warrants, re-establishing the Office of the Inspector General of the Canadian Security Intelligence Service, and expanding the Security Intelligence Review Committee’s (SIRC) size, capabilities and mandate.
National security officials usually seek between 40 and 50 new warrants each year in addition to the 150 to 250 renewals or replacements. The prime minister argues that the involvement of federal court judges is a check on the bureaucracy. It may well be, but we should also note that the overwhelming majority of these warrant applications are approved.
In select cases, a security cleared lawyer, referred to as a Special Advocate, provides a challenge function against the government’s case. But more often than not these lawyers aren’t present, meaning judges generally only hear one side of the argument from teams of government lawyers seeking each application’s approval.
The outcome is predictable.
Providing balance to this process requires making the involvement of a Special Advocate mandatory for each warrant application. The reviews are conducted in secret, so this change would not in any way compromise Canada’ security.
With CSIS now designating terrorist “sympathizers” as national security threats and the authority to make targeting decisions being delegated to lower level officials, the need for a balanced warrant application process is all the greater.
Other observers believe that our warrant process is already too cumbersome. In 2005, I met with Baroness Eliza Manningham-Buller, the formidable director-general of MI5, the UK’s Security Service, in her office on the Thames. At one point in the discussion she held up a three-page form and said, “This is the document we use to obtain a warrant, not the bloody phonebook your people require” (clearly a set up by CSIS). While procedures here may be more cumbersome than in the UK, the importance of each warrant being vetted to ensure it meets the standards of the Charter is essential.
Efforts to increase national security accountability of CSIS must include the re-establishment of its Inspector General. The Harper government shut this organization down in 2012, arguing that its mandate overlapped with that of SIRC, even though both bodies were specifically designed to look at CSIS in different ways.
SIRC held the role of after the fact, civilian review that reported to Parliament while the Inspector General performed an internal oversight function that reported to the Minister of National Defence.
Unlike the members of SIRC, Inspectors General had decades of experience working in Canada’s security and intelligence community. They had the background, access and mandate to provide as close to real-time oversight of the spy agency as is possible in a Westminster system.
It’s only been three years since the watchdog was shuttered, but the negative ramifications of that decision are already beginning to show. In a recent ruling, Federal Court Justice Richard Mosley found that CSIS had misled him with respect to the agency’s surveillance partnerships with other countries. It was exactly this sort of wrongdoing that the Inspector General’s office was designed to prevent. Without it, future problems are inevitable.
All of the responsibility for reviewing CSIS’ activities now rests on the shoulders of SIRC, but the committee faces a number of serious challenges. One of these is its small size. It refers to itself as a “micro-agency” in its most recent Departmental Performance Report and acknowledges that its size carries with it “many inherent risks.”
SIRC’s limited capacity means it can only keep an eye on a sliver of what CSIS is up to. It takes what they refer to as “snapshots” (CSIS’ word) of some of the agency’s activities based on six considerations. These include the intelligence priorities of the government, issues identified in the course of SIRC’s complaints functions and changes in Canada’s threat environment.
These “snapshots” only capture a moment in time and this approach lacks context. SIRC also doesn’t assess the effectiveness or value for money of the activities it reviews. But despite all this, SIRC assures us that they are able to “ensure the democratic accountability of one of the Government's most powerful organizations, thereby safeguarding Canadians' fundamental rights and freedoms.” Doubtful.
SIRC’s inability to provide a comprehensive review function of CSIS’ activities is most easily explained by the gap in budget and size of the two organizations. CSIS has arrangements with 265 foreign agencies in 144 countries. It manages around 2,500 employees, has 14 regional and district offices across Canada and has an annual budget of $515 million. In contrast, SIRC employs an Executive Director and a staff of 17 and has only 5 part-time committee members (when all positions are filled) that met only 9 times in 2013/14.
How can the committee be expected to get its job done under these circumstances? Moreover, how can the committee assess that based on their 6 areas of review that CSIS is acting in accordance with the law?
Only adding to their problems, SIRC has also been struggling to deal with near-constant turnover in committee membership and delays in filling vacancies. The organization had four different Chairs between April 2011 and March 2014 and a number of regular members have retired prematurely. According to SIRC’s most recent Departmental Performance Report, this has had “a direct impact on the organization’s ability to operate effectively” and represents a “risk to the stability of leadership.”
To address these problems, more SIRC members and a larger staff are needed. The committee’s size should be boosted from 5 members to 9 and staff increased from 17 to 30. This should be coupled with a transition for committee members from part-time appointment to a full-time appointment on a staggered, one time renewable 5-year term.
Business continuity would be improved by appointing a Deputy Chair and Deputy Executive Director who can quickly take over the lead role should the Chair or Executive Director step down unexpectedly. Onus, however, will ultimately fall on the government to appoint qualified members in a timely manner.
The combination of a larger committee, full time membership and deputy governance positions would have a salutary impact on the turnover and leadership problems. This shift would also allow for an increase in the level of training for members and staff so that they are better positioned to carry out their duties on a full-time basis.
Instituting these reforms would allow the committee to cover much more than the “snapshots” that they’re limited to now. The frequency of SIRC’s reports should go from once a year to once every quarter as part of this change.
As it stands now SIRC’s annual reports are short, vague and lack substance, which is no doubt why they garner little attention from the media or Canadians each time they’re released. Increasing the frequency and quality of reporting will help to change perceptions of the organization.
Once these changes have been put in place, the question should then shift to how to deal with the gap in federal intelligence oversight of other departments. A variety of other agencies collect and analyze intelligence, including the RCMP, Communications Security Establishment, Canada Border Services Agency, Transport Canada, Citizenship and Immigration Canada, the Privy Council Office, Department of Foreign Affairs, Trade and Development, and the Financial Transactions and Reports Analysis Centre of Canada.
It doesn’t make much sense to only have CSIS’ activities reviewed when all these other agencies face little or no scrutiny. This is something that needs to be addressed going forward.
SIRC’s annual budget is $2.8 million or about half a per cent of CSIS’ budget. This is much too low. SIRC should have a budget in the range of $10 million a year, or roughly 2 per cent of CSIS’ budget. This would cover the increase in committee size and staffing levels and the shift from part time to full time membership.
Keeping Canadian citizens safe requires a strong system in place to review their activities and make sure they’re lawful and effective. Canada’s current system is slipshod, giving our officials too much leeway in conducting their business without oversight. With ever more powers being granted to the intelligence community, the risk of mistakes being made will only get higher unless this imbalance is addressed soon.
[Colin Kenny is former chair of the Senate Committee on National Security and Defence. Kennyco@sen.parl.gc.ca]