SCALIA’S ‘GIFT TO CANADA’

The un­told story of how a U.S. Supreme Court jus­tice once helped re­shape our spy ser­vices

The Globe and Mail (Prairie Edition) - - FRONT PAGE -

As Don­ald Trump mulls a Supreme Court suc­ces­sor to the con­ser­va­tive fire­brand, Sean Fine examines how a young, de­cid­edly even­handed An­tonin Scalia once helped the Cana­dian gov­ern­ment get a grip on do­mes­tic spy ser­vices that had be­gun to spin out of con­trol

He was the most out­spo­ken con­ser­va­tive judge of his era. And An­tonin Scalia’s death last Fe­bru­ary at age 79 kicked off an epic bat­tle for the soul of the United States Supreme Court, on which he’d served for 30 years. Now the Repub­li­cans, af­ter block­ing Pres­i­dent Barack Obama’s bid to choose a ju­di­cially moder­ate suc­ces­sor, will reap the ben­e­fits of their stonewalling, be­cause soon-to-be pres­i­dent Don­ald Trump is free to search for a judge ex­actly like Mr. Scalia. As if he could ever find one.

But be­fore the inim­itable An­tonin Scalia joined the Supreme Court, he was a law pro­fes­sor with a wife and eight chil­dren, soon to be nine. And then Canada came call­ing, with a free­lance job: con­sul­tant to a royal com­mis­sion aimed at re­vamp­ing na­tion­alse­cu­rity agen­cies.

It was the 1970s – a time when this coun­try was reel­ing from rev­e­la­tions about out-of-con­trol spy ser­vices. The RCMP had burned down a barn in Que­bec to pre­vent a meet­ing be­tween Que­bec sep­a­ratists and U.S. rad­i­cals, bro­ken into jour­nal­ists’ of­fices, in­fil­trated le­git­i­mate protest groups, stolen po­lit­i­cal-party mem­ber­ship lists. In 1977, the Pierre Trudeau gov­ern­ment had set up the Royal Com­mis­sion into Cer­tain Ac­tiv­i­ties of the RCMP, to be led by Jus­tice David McDon­ald of Al­berta. The com­mis­sion of­fered Mr. Scalia a con­tract to write a re­port de­scrib­ing how the United States had con­fronted the notorious ex­cesses of its own in­tel­li­gence agen­cies, in­clud­ing the at­tempt a decade ear­lier to push civil-rights leader Martin Luther King Jr. to take his own life by send­ing him a threat­en­ing let­ter and an au­dio­tape of ex­tra­mar­i­tal sex­ual ac­tiv­i­ties.

And Mr. Scalia, then in his early 40s, ac­cepted – for the re­spectable, but not princely, sum of $7,500 U.S. (then worth $8,750 Cana­dian), based on 30 days’ work at $250 a day. The job wound up be­ing much more oner­ous than he had ex­pected: He was more than a year late de­liv­er­ing his re­port, though still in plenty of time to be use­ful.

The re­port’s scrupu­lously im­par­tial (for the most part) au­thor was not the larger-than-life fig­ure he would one day be­come: a man ob­sessed with his own fame, and prone to scan­dal­iz­ing the court with his ridicule of its lib­eral mem­bers. (“What re­ally as­tounds,” he wrote, dis­sent­ing from the 5-to-4 rul­ing le­gal­iz­ing gay mar­riage two years ago, “is the hubris re­flected in to­day’s ju­di­cial Putsch.”) Here was the dis­pas­sion­ate, sober ju­rist of un­mis­tak­able power – the one who might have been. That’s the view of one of his bi­og­ra­phers, Bruce Allen Mur­phy, a law pro­fes­sor at Lafayette Col­lege in Penn­syl­va­nia, who read the re­port at The Globe and Mail’s re­quest.

“His­to­ri­ans will look back and say, ‘He was as bril­liant as any­body who has ever served on the Supreme Court – Wil­liam O. Douglas, Oliver Wen­dell Holmes, John Mar­shall.’ Of the 112 jus­tices, we’re only talk­ing about a hand­ful of peo­ple who were re­ally, re­ally smart. But the way he did his job late in his ca­reer prob­a­bly will di­min­ish his legacy. He could have achieved so much more. Had he done his job the way he did that re­port for the com­mis­sion, his legacy, I think, would be en­tirely dif­fer­ent.”

The story of Mr. Scalia’s re­port to Canada at a piv­otal time in its se­cu­rity-in­tel­li­gence his­tory has never been told. “Scalia’s gift to Canada,” is how Peter Rus­sell, the re­search di­rec­tor who hired him, char­ac­ter­izes the re­port to­day. The Globe ob­tained the 200-plus-page doc­u­ment (which in­cluded 100 pages of de­tailed foot­notes and ap­pendixes) by mak­ing a re­quest un­der the fed­eral ac­cess-toin­for­ma­tion law to the Na­tional Li­brary and Ar­chives. Why the work re­mained se­cret, and was kept in a sealed area of the Na­tional Li­brary and Ar­chives all these years, re­mains un­clear.

Its in­flu­ence, though dif­fi­cult to pin down, ex­ceeded any­thing that could have been en­vi­sioned when Mr. Scalia took on the as­sign­ment: So im­pressed were the Cana­di­ans who read it that it wound up in the hands of a renowned deputy at­tor­ney­gen­eral at the Cana­dian Jus­tice Depart­ment, Roger Tassé, who was help­ing at that very mo­ment to draft the Char­ter of Rights and Free­doms, which would take ef­fect in 1982.

Iron­i­cally, the man hired by the com­mit­tee whose job was to clean up Cana­dian se­cu­rity ser­vices would, years later, ex­press sup­port for tor­ture in some cir­cum­stances. A provo­ca­teur with his fin­ger on the pulse of his times, Mr. Scalia used an of­ten bru­tal, ter­ror­ist-fight­ing se­cret agent from the TV show 24 to make the point: “Jack Bauer saved Los Angeles,” he said in a speech in Ot­tawa in 2007. “He saved hun­dreds of thou­sands of lives. Are you go­ing to con­vict Jack Bauer? … Is any jury go­ing to con­vict Jack Bauer?”

But no pro-tor­ture view­point is vis­i­ble in his neu­trally ti­tled re­port, United States In­tel­li­gence Law. Its theme: Coun­tries need pow­er­ful state in­ves­tiga­tive re­sources to pro­tect se­cu­rity, but they also need to keep those pow­ers in check and to pro­tect per­sonal pri­vacy. A hefty price tag for hands-on ex­pe­ri­ence The 1960s and seven­ties were a time when se­cu­rity ser­vices in both Canada and the United States were widely crit­i­cized for dirty tricks ap­plied to peo­ple those ser­vices deemed “sub­ver­sive.” Even Prof. Rus­sell, now 84, had at­tracted the at­ten­tion of the coun­try’s spies as a po­lit­i­calscience pro­fes­sor at the Univer­sity of Toronto. “If you weren’t on the se­cu­rity ser­vice’s list of pos­si­ble sub­ver­sives – cer­tainly I was – what the hell were you do­ing with your life?” he jokes now. When he needed a topse­cu­rity clear­ance to work with the com­mis­sion, the RCMP in­ves­ti­ga­tion went down a blind al­ley typ­i­cal of the time. “One of my friends called me after­ward and said, ‘They asked me if I knew if Rus­sell had any strange sex­ual habits.’ ”

For the McDon­ald Com­mis­sion, learn­ing from the U.S. ex­pe­ri­ence was crit­i­cal. “Here’s the one West­ern democ­racy that has a con­sti­tu­tional bill of rights – which its courts take very se­ri­ously,” Prof. Rus­sell re­called. “How do they draw the line? How do they bal­ance free­dom and se­cu­rity?”

Net­work­ing led the com­mis­sion to Mr. Scalia. John Ed­wards, a Univer­sity of Toronto law pro­fes­sor who was serv­ing as spe­cial re­search ad­viser to the McDon­ald Com­mis­sion, asked for rec- om­men­da­tions from for­mer U.S. at­tor­ney-gen­eral Ed­ward Levi and top U.S. le­gal scholar Her­bert Wech­sler, both of whom he knew per­son­ally. Both named Mr. Scalia as their first choice.

Prof. Rus­sell went on to be­come an émi­nence grise among po­lit­i­cal sci­en­tists in Canada, a pro­fes­sor emer­i­tus at the U of T, and a lead­ing an­a­lyst of our own Supreme Court. The man who hired Mr. Scalia for the com­mis­sion would also later be ap­palled by the jus­tice’s sup­port of orig­i­nal­ism – a ju­di­cial phi­los­o­phy in which con­sti­tu­tional rights do not evolve over time, but stay rooted in the vi­sion of the Found­ing Fa­thers of the United States. “Orig­i­nal­ism is ab­so­lute non­sense,” Prof. Rus­sell says. “It’s part of the idea that there is a cor­rect and au­then­tic way to read the bi­ble. The U.S. Con­sti­tu­tion has bib­li­cal im­por­tance and value. You know what bi­bles are like. They know what the word of God is. That’s what Scalia’s orig­i­nal­ism fos­tered: that kind of bib­li­cal de­bate.”

By the McDon­ald Com­mis­sion’s stan­dards, Mr. Scalia’s ex­per­tise came at a hefty price; his re­port cost more than sim­i­lar re­ports from ex­perts in Aus­tralia and New Zealand. “Much more than we paid for our Com­mon­wealth re­ports,” Prof. Rus­sell ac­knowl­edged in a note to the com­mis­sion­ers, “but then the U.S. ex­pe­ri­ence is more com­plex, and the U.S. mar­ket for aca­demic le­gal ser­vices is much pricier.”

Mr. Scalia had more ex­pe­ri­ence of deep in­tel­li­gence mat­ters than Prof. Rus­sell knew about at the time. Richard Nixon had hired him as his le­gal ad­viser in the last days of his ad­min­is­tra­tion, and he stayed on as as­sis­tant at­tor­ney-gen­eral when Ger­ald Ford suc­ceeded Mr. Nixon as pres­i­dent in 1974. At that time, the CIA, un­der an on­slaught of me­dia ex­posés about its dirty tricks (such as the 1960 plan to poi­son Con­golese leader Pa­trice Lu­mumba, or the mas­sive, il­le­gal sur­veil­lance of U.S cit­i­zens), agreed that any covert op­er­a­tions abroad – the so-called “black-ops” – should be ap­proved by the jus­tice depart­ment. The task fell to Mr. Scalia; be­fore he be­came a Univer­sity of Chicago law pro­fes­sor, he had been at­tor­ney-gen­eral Ed­ward Levi’s trusted ad­viser.

“So, be­lieve it or not, for a brief pe­riod of time, all covert ac­tions had to be ap­proved by me,” he said in his 2007 Ot­tawa speech. “Need­less to say, I did not feel that this was an area in which I pos­sessed a whole lot of ex­per­tise.”

Clearly, though, he de­vel­oped some; in cor­re­spon­dence with Prof. Rus­sell as he started the work, he asked if Canada would be in­ter­ested in how the U.S. gov­ern­ment main­tained over­sight of covert of­fen­sive or dis-

If you read his re­port care­fully, he knows in the real world what these agen­cies get up to – the bad things they get up to and the ac­cept­able things they get up to – and it’s im­por­tant to have that kind of re­al­ism.

Peter Rus­sell The re­search di­rec­tor who hired Mr. Scalia to write his re­port to the McDon­ald Com­mis­sion

rup­tive ac­tions abroad. Prof. Rus­sell thought the U.S. ex­pe­ri­ence was too dif­fer­ent from Canada’s to be of much use.

How­ever, he be­lieves Mr. Scalia’s hands-on ex­pe­ri­ence deal­ing with in­tel­li­gence mat­ters served Canada well. “If you read his re­port care­fully, he knows in the real world what these agen­cies get up to – the bad things they get up to and the ac­cept­able things they get up to – and it’s im­por­tant to have that kind of re­al­ism.”

A densely ar­gued re­port, graded ‘A-plus’

Mr. Scalia be­gan his re­port by damp­en­ing ex­pec­ta­tions. “It is im­pos­si­ble, in a pa­per of the size here con­tem­plated, to do jus­tice to the en­tire sub­ject of in­tel­li­gence ac­tiv­i­ties by the United States gov­ern­ment.” He then men­tions “the ar­eas that will be slighted,” in­clud­ing the doc­u­ment­ing of the many abuses of power by se­cu­rity agen­cies that were al­ready well-known from the “pop­u­lar press”; if the com­mis­sion wanted to know more, he said “it is ex­haus­tively (and per­haps some­what ex­ag­ger­at­edly) set forth” in a 1975 re­view by a Se­nate com­mit­tee (the Church re­port, named for Sen. Frank Church).

He then set out the dif­fi­cul­ties in­her­ent in his “mod­est sub­ject”: U.S. in­tel­li­gence law “is an amal­gam of con­sti­tu­tional re­stric­tions, de­vel­oped in a case-by-case fash­ion by the courts; leg­isla­tive pre­scrip­tions of un­usu­ally vague and am­bigu­ous char­ac­ter; and ad­min­is­tra­tive di­rec­tives, many of which are not pub­licly known.” And the laws were at that mo­ment un­der­go­ing mas­sive change.

The pa­per was densely ar­gued and by no means an easy read. It cov­ered ev­ery­thing from the open­ing of mail to the in­fil­tra­tion of or­ga­ni­za­tions by in­for­mants, from the su­per­vi­sion of se­cu­rity ser­vices by gov­ern­ment to the role of judges in grant­ing war­rants.

“He wrote it al­most as if he was writ­ing a ju­di­cial de­ci­sion,” Mr. Rus­sell said, af­ter The Globe sent him a copy to re­fresh his mem­ory of it. “Did you no­tice the pre­ci­sion of his way of han­dling very com­plex le­gal is­sues? Quite im­pres­sive. I didn’t know he was go­ing to be a judge at the time – but I might have guessed.”

“I think he opened our eyes to a lot of is­sues we needed to pay at­ten­tion to,” Don Rick­erd, who served as a com­mis­sioner, said in an in­ter­view. “I don’t think we could have found a bet­ter per­son to do an anal­y­sis of the Amer­i­can sit­u­a­tion than Scalia.”

The com­mis­sion’s other sur­viv­ing mem­ber, Guy Gil­bert, also gave a rave re­view. “The Scalia re­port is A-plus for me, ex­cept for the fact that it came late,” he said in an in­ter­view. (The tar­di­ness was an ir­ri­tant; Prof. Rus­sell, in a memo in Jan­uary, 1979, told the com­mis­sion­ers he was “very dis­ap­pointed” that Mr. Scalia “has failed to meet all pre­vi­ous dead­lines,” and that Mr. Scalia “now in­forms me” the re­main­der of the re­port would be ready at the end of the month. When it fi­nally ar­rived in the mid­dle of sum­mer, Prof. Rus­sell wrote to Mr.Scalia: “You should not feel badly about the de­lay.”)

Oc­ca­sion­ally, Mr. Scalia’s char­ac­ter­is­tic wit makes it­self known – though much more sub­tly than in his of­ten with­er­ing Supreme Court judg­ments. For in­stance, ex­plain­ing why le­gal con­straints on in­tel­li­gence agents are nec­es­sary, he writes: “But even if (as is hoped) these in­di­vid­u­als are of an in­tegrity well above the run of mankind, they are not en­tirely lack­ing in hu­man frailty; and the work they pur­sue in­volves spe­cial temp­ta­tions to an abuse of power, or even to a mere ex­cess of right­eous zeal.” In his 2007 speech, he was more the sus­pi­cious-of-too-many-le­gal-pro­tec­tions con­ser­va­tive: “I think we must be­ware of over­lawyer­ing the na­tional se­cu­rity and in­tel­li­gence process. To sub­ject these ac­tions to rules is one thing, but to sub­ject them to prior lawyer or ju­di­cial ap­proval is some­thing else. These ar­eas of­ten re­quire prompt and bold ac­tion. … The army that hits the beaches with a cadre of le­gal ad­vis­ers is ask­ing

Noth­ing pre­vents a pri­vate cit­i­zen from sys­tem­at­i­cally dis­sem­i­nat­ing deroga­tory, but true, in­for­ma­tion about a prom­i­nent po­lit­i­cal fig­ure; but the same ac­tiv­ity by the gov­ern­ment would raise se­ri­ous con­sti­tu­tional prob­lems.

An­tonin Scalia Above, Prof. Rus­sell, now 84, says that what the McDon­ald Com­mis­sion learned from Mr. Scalia’s re­port is that a coun­try with a bill of rights puts lim­its on its se­cret ser­vices ‘but it doesn’t snuff them out. It tries to strike a bal­ance. While that’s ob­vi­ous now, in those pre-Char­ter years that wasn’t so ob­vi­ous.’ FRED LUM/THE GLOBE AND MAIL

for trou­ble.”)

On why he sup­ported, in the McDon­ald Com­mis­sion re­port, the war­rant­less break-ins known as “black-bag jobs” (which Cana­di­ans called “rum­mag­ing around,” ac­cord­ing to Prof. Rus­sell): “It is surely ab­surd to think of be­ing able to bug Col. Abel’s room – and even to en­ter the room for the pur­pose of im­plant­ing the bug – but not be­ing able to slip in and copy his code­book.” (Ru­dolf Abel was a Soviet spy ar­rested in New York in a fa­mous 1957 episode.) Mr. Scalia liked the line so much that he used it again in his Ot­tawa speech more than a quar­ter-cen­tury later.

On CoIn­telPro, the FBI’s coun­ter­in­tel­li­gence pro­gram that dogged Dr. King, among oth­ers: “Noth­ing pre­vents a pri­vate cit­i­zen from sys­tem­at­i­cally dis­sem­i­nat­ing deroga­tory, but true, in­for­ma­tion about a prom­i­nent po­lit­i­cal fig­ure; but the same ac­tiv­ity by the gov­ern­ment would raise se­ri­ous con­sti­tu­tional prob­lems. The vice of the shock­ing CoIn­telPro op­er­a­tion, there­fore, con­sists not en­tirely (though it may in part) of the mere char­ac­ter of the ac­tiv­i­ties con­ducted, but rather of the pur­poses for which they were em­ployed.”

Prof. Mur­phy said he found the re­port fas­ci­nat­ing to read.

“It’s like a time cap­sule. Be­cause Scalia is now out of gov­ern­ment [at the time]. He thinks he’s go­ing to get back into gov­ern­ment, but he doesn’t know for sure. He no doubt thinks he will get into the ju­di­ciary, but at that mo­ment he’s a law pro­fes­sor who has seen a lot of these is­sues. He’s also watch­ing in the news the CIA, the FBI and all of our de­fence agen­cies, in­ves­ti­ga­tion agen­cies, be ripped apart by the post-Water­gate Church com­mit­tee and Rock­e­feller com­mit­tee in­ves­ti­ga­tions [into in­tel­li­gence ac­tiv­i­ties]. Scalia is able to get be­yond that and give a very clear and high-level in­tel­lec­tual dis­cus­sion of the is­sues. But the way he’s choos­ing his is­sues and hy­po­thet­i­cals, you can see he’s per­son­ally ag­grieved by what has hap­pened … that the worst pos­si­ble dis­as­ter that could have hap­pened to the peo­ple that he re­spects in the in­tel­li­gence com­mu­nity [has hap­pened] – that all their se­crets are now be­ing re­vealed on a monthly ba­sis in mag­a­zines and news­pa­pers. This is what can hap­pen if you do this badly.”

Prof. Mur­phy said he was deeply im­pressed by Mr. Scalia’s ap­proach. “He’s cre­at­ing a book, he’s cre­at­ing a course that will ed­u­cate the com­mis­sion­ers as to what the is­sues are for them to de­cide.”

And ed­u­cate them he did. The McDon­ald Com­mis­sion took aim at the Cana­dian gov­ern­ment’s fail­ure to su­per­vise the RCMP while the force com­mit­ted il­le­gal or im­proper acts: “The sup­posed po­lit­i­cal mas­ters of the Ser­vice were ig­no­rant of its mis­deeds,” an­a­lyst Philip Rosen wrote in a re­port for the Li­brary of Par­lia­ment in 2000, sum­ma­riz­ing the McDon­ald Com­mis­sion find­ings. “But this ex­on­er­a­tion was also an in­her­ent crit­i­cism, in that the struc­ture of con­trol and ac­count­abil­ity was so weak as to al­low these things to hap­pen.” The re­port rec­om­mended an end to spy­ing on le­gal protest and dis­sent, but it gave the thumbs-up to the spy tech­niques dis­cussed so ably by Mr. Scalia: elec­tronic sur­veil­lance, sur­rep­ti­tious en­try, and mail-open­ing. As long as the spies re­ceived a ju­di­cial war­rant first.

Prof. Rus­sell says that what the com­mis­sion learned from Mr. Scalia’s re­port is that a coun­try with a bill of rights puts lim­its on its se­cret ser­vices “but it doesn’t snuff them out. It tries to strike a bal­ance. While that’s ob­vi­ous now, in those pre-Char­ter years that wasn’t so ob­vi­ous. There were not real lim­its in Canada on our spooks, our col­lec­tors of covert in­tel­li­gence. We learned that in the U.S., there are real lim­its. Some crit­ics would say not strong enough lim­its, but there were cer­tainly lim­its and they had to ob­serve them. That was quite a rev­e­la­tion for most of the peo­ple in­volved with the royal com­mis­sion.” Sean Fine is The Globe and Mail’s jus­tice writer.

PHOTO COUR­TESY UNIVER­SITY OF CHICAGO/ PHOTO IL­LUS­TRA­TION BY THE GLOBE AND MAIL

Mr. Scalia’s re­port to the Royal Com­mis­sion into Cer­tain Ac­tiv­i­ties of the RCMP out­lined and an­a­lyzed the U.S. ex­pe­ri­ence in con­fronting the ex­cesses of its own in­tel­li­gence agen­cies, in­clud­ing an at­tempt to push Martin Luther King Jr. to take his own life.

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