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Espionage is a Fact of Life. Oversight Should be Too.

The Ottawa Citizen - October 15, 2013

By Colin Kenny

Canadians ought not to be wringing their hands at the news that our electronic eavesdropping agency is spying on the Brazilian mining industry. Espionage – both for security and economic advantage – is a fact of international life.

What Canadians should be anxious about is the lack of oversight of Canadian agencies that conduct espionage. We are entitled to know that capable, independent and responsible people are keeping an eye on how our spies – and our military – are interfering in the lives of both foreigners and Canadian citizens.

Agencies like Communications Security Establishment Canada (CSEC) and Canadian Security Intelligence Service (CSIS) are never going to tell us what they’re doing in the shadows. Nor is the prime minister. And that’s just the way it should be with this provision: that we have responsible people, with the right resources, monitoring what our operatives are doing in the shadows to assure that they aren’t colouring outside the lines.

CSEC defends Canadians against international hackers and does electronic snooping around the world, for reasons of security, and yes, for reasons of ultimately securing economic advantage for Canadian firms, although it will deny the latter.

CSIS, Canada’s national intelligence agency, is responsible for collecting, analyzing, reporting and disseminating intelligence on threats to Canada’s national security, and conducting operations, covert and overt, within Canada and abroad.

All countries with adequate resources have intelligence agencies like CSEC and CSIS. Countries have oversight mechanisms to assure these agencies’ political masters – including legislators from both government and opposition parties – that the agencies are not breaking the laws of their country or otherwise operating outside their mandate.   Canada has no such oversight mechanisms. Or, rather, Canada’s mechanisms are so feeble and after-the-fact that nobody can assure ordinary Canadian citizens that their own intelligence agencies are being held to account. CSEC has only one person responsible for overseeing its activities, known as the CSEC “commissioner.”  Until recently it has been Robert Décary, a former appeals court judge with the Federal Court of Canada, who just stepped down last week. Décary operated with a staff of 11 and a budget of $2 million, to oversee an agency with a staff of 2,000 and a budget of $350 million.

In the commissioner’s final report, he concluded that CSEC was acting lawfully in the conduct of its duties, but acknowledged that he was not able to reach a conclusion that the agency was complying with the law because of poor CSEC record keeping.

CSIS is supposedly held to account by the Security Intelligence Review Committee (SIRC). SIRC is a group of appointees recently chaired by Arthur Porter, who allegedly tried to broker a multimillion-dollar gun deal while serving in the office, and who is now languishing in a Panama prison facing fraud charges. SIRC has 15 employees and a budget of $2.5 million to supervise an agency with 2,500 employees and a budget of $500 million.

Until last year CSIS had an Inspector General, who had the authority to examine the agency’s records to determine whether it was operating within Canadian law and report back to the government. The Inspector General played a key role, ensuring that the government wouldn’t be surprised by any misbehavior within the agency. It came as a surprise when Prime Minister Stephen Harper abolished the position without public discussion.

SIRC only has the right to review past behaviour. That doesn’t help when there is an urgent need to stop untoward things from happening. Canadians need more than review of past events; they need oversight of what is happening in real time.

The United States has a multitude of security agencies, and they occasionally get out of line, as one might expect. But at least the Americans put their politicians in charge of oversight of these agencies through both House and Senate select committees on intelligence.

If American security agencies break American laws, Congress can squeeze their budgets, which is akin to institutional waterboarding. If Canadian security agencies break Canadian laws, there’s a good chance that nobody will be the wiser for a long time to come.

Speaking of Canadian security agencies, Joint Task Force 2 is the most secretive arm of the Canadian military. It is a special operations force that conducts covert operations. Our intelligence agencies quietly spy for us. JTF 2 quietly kills for us. Again, nobody expects JTF 2 to explain its activities to 34 million Canadians – that’s not in the cards, nor should it be. But some qualified oversight agency should be watching JTF 2 and reporting back to the legislators responsible for the activities of the Canadian military.

But getting back to espionage. Is it polite for CSEC to tap into a foreign country’s economic data and brief foreign Canadian firms about their findings? It is not. But this Brazil incident isn’t going to turn Canada into some kind of international villain, as Thomas Mulcair seems to suggest. Gone are the days when Henry L. Stimson, U.S. President Herbert Hoover’s secretary of state, could be taken seriously when he denounced the whole concept of spying because “Gentlemen don’t read each other’s mail.” 

International operatives are not gentlemen. Embassies and high commissions have for countless decades been control centres for spies masquerading as diplomats. Their sole role is to spy on the host country. Electronic snooping is merely an extension of this.

Like it or not, we Canadians are now competing for our economic lives against countries like China, which has based a good part of its astonishing economic turnaround on reading other countries’ mail. China’s economic espionage in Canada is so pervasive that former CSIS head Richard Fadden put out a thinly veiled public appeal to Canadian politicians not to be duped by what one report estimated to be more than a thousand Chinese spies in Canada.

Brazil, now wailing in agony at the revelation that a Canadian intelligence agency is spying on its mining industry, has its own spy agency, Agencia Brasileira Inteligencia (ABIN).  It is somewhat ironic that not too long ago ABIN was caught spying on Canada’s aeronautics industry.

Agencies like CSEC and CSIS clearly deem it to be part of their mandate to help Canadian companies stay competitive in various fields, less we shed still more of the hundreds of thousands of full time jobs this country has lost to foreign competition early in this new century.

Are they right to do so? That’s for Canadian parliamentarians to say – after all, it is supposedly Parliament that sets the rules on these things and assures that they are followed.

Canadians need to appreciate what our security agencies do for us, at home and abroad. But we also need to know that they are doing what our legislators deem is proper to do. Under the current circumstances, we don’t.

[Colin Kenny is former chair of the Senate Committee on National Security and Defence, kennyco@sen.parl.gc.ca.]