Security under scrutiny
New book analyzes how Canada’s anti-terror laws, while intrusive, are not fit for purpose
How could Canada expose its intelligence gathering so amateurishly?
In February, Turkish media outlets reported that the Turkish police had arrested a 28-year-old Syrian refugee named Mohammed al-Rashed after he helped three British teenage girls cross the border into Syria to join ISIS, where two of them have since become “jihadi brides.”
Al-Rashed, a former dentist, told the Turks that he had helped a dozen westerners cross the border, passing on information about them to the Canadian embassy in Jordan, where he had gone to apply for refugee status. Al-Rashed said he was taken to Canada and promised a Canadian passport.
The Canadian government would only say that Al-Rashed was not a CSIS employee.
If the story is true, it raises disturbing questions about the ethics and competence of the Canadian intelligence operations. While it would no doubt be helpful to intelligence agencies to know details about ISIS fighters crossing the border, it would be wrong to let deluded teenage Britons go to ISIS territory.
And how could Canada expose its intelligence gathering activities so amateurishly, allowing the Turks to point at us rather than explaining their porous borders with ISIS?
Was there, as NDP MP Paul Dewar wondered, any connection to Canada’s ambassador in Jordan, former Mountie Bruno Saccomani, who was appointed to the job after serving as chief bodyguard to Stephen Harper and his family?
Dewar has no idea what Canada’s intelligence agencies are up to in Jordan or Turkey, even though he is his party’s foreign affairs critic.
In the United States, Britain, Australia and New Zealand, opposition MPs like Dewar sit on intelligence committees that receive regular topsecret briefings from their countries’ spy masters.
Canada, alone among the countries of the “Five Eyes” intelligence alliance, has no parliamentary oversight or review. Our representatives have no idea what our spies are doing.
The operations of CSIS are overseen by the Security Intelligence Review Committee, a part-time group of prime-ministerial appointees, which lacks the authority to to review material from other branches of government, including the CBSA, RCMP and CSE, which routinely work with CSIS on national security issues.
Parliamentary committees, royal commissions and former SIRC members Gary Filmon and Chuck Strahl have all pointed to this “silo” problem, but when the government tabled C-51, its key anti-terror legislation, it did nothing to expand oversight or review of our intelligence agencies.
Experts testifying at committee complained, former prime ministers Jean Chrétien, Joe Clark, Paul Martin, and John Turner published an open letter calling for changes, both the Liberals and NDP proposed amendments, but the government stood firm, refusing any changes that would allow MPs and senators to play any role in reviewing our intelligence agencies, and even failed to expand the powers of existing review agencies.
Former Conservative Senator Hugh Segal has pointed out that Canadian parliamentarians — the people who passed C-51 into law — “are essentially out of the loop, lacking and having no way to acquire the expertise and facility necessary to conduct competent, diligent and discrete legislative oversight on behalf of Canadian taxpayers.”
The authors of False Security, a comprehensive new book about C-51 and related anti-terror bills, struggle — mostly successfully — to contain their understandable frustration with this very poor legislative and political work, meticulously itemizing the shortcomings of the government’s anti-terror laws.
Craig Forcese, of the University of Ottawa, and Kent Roach, of the University of Toronto, deserve hearty congratulations for the academic forbearance they show in their analysis. Lesser law professors would have thrown up their hands, and declared it all a bad business, but Forcese and Roach patiently, in 629 heavily footnoted pages, consider each measure of the legislation in painstaking detail.
Their critique is not based on an ideological hostility to intelligence gathering. Forcese and Roach are not of the Glenn Greenwald school of war-on-terror skeptics. They believe the government is right to change laws to try to make Canadians safer, but they don’t think the changes in C-51 do that. They make their arguments with such meticulous care, with so many facts so carefully arranged, that it’s hard to read the book and believe they’re mistaken.
Politicians on both sides of this issue like to say that security and privacy are not mutually exclusive, but the debate, in Canada and elsewhere, is often about the level of privacy violation desirable to maintain security for citizens.
Forcese and Roach argue, though, that C-51’s approach to this balance is wrong, not because it gives the government too much capacity to violate Canadians’ rights — although they do think that — but because it is wrongheaded, simultaneously overreacting and underreacting.
For instance, the law does not implement recommendations of the Air India and Maher Arar inquiries, which asked the government to reorganize and modernize the management of intelligence agencies and improve arm’s-length review.
C-51 finally attempts to wrestle with the delicate organizational and legal problems that led CSIS first to keep to itself information that might have prevented the Air India attack, and secondly destroyed and withheld evidence that might have led to a successful prosecution of the men behind the plot.
The authors do not think, though, that the solution the government has imposed in C-51 and related bills will solve the key problem, which is that CSIS resists allowing information it gathers to be tested in open court.
Forcese and Roach go over the complicated legal issues at great length, arguing persuasively that instead of confronting a problem that the government ignored for too long, the laws will lead to clumsy workarounds in an effort to avoid judicial scrutiny. This, the authors say, may have “the unintended effect of making terrorism prosecutions even more difficult, even when they really are the best solution.”
Similarly, the new authority to allow CSIS to secretly “disrupt” broadly defined threats to Canadian national security will likely discourage the agency from working toward prosecutions.
Troublingly, C-51 defines the new disruption powers broadly and vaguely — allowing “an uncertain but staggering range of things” — so that the authors can’t determine whether it includes, for instance, the authority to “render” Canadians to other countries for interrogation by foreign intelligence agencies.
This new authority “places CSIS on a footing roughly analogous to that of the RCMP Security Service during the era of dirty tricks,” before the creation of CSIS, when the Mounties routinely took illegal action against perceived security threats, including peaceful domestic political opponents and critics.
The new law does require warrants for some disruption activities, but the hearings will be secret, with no representation for the subject of the action. And judges will be asked, for the first time in Canada, to approve activities that violate Charter rights, which “places judges in a radical new universe,” where they will write the rules for rights violations “in a manner that simply cannot be predicted in advance or democratically debated in its particulars.”
“There is a danger that the Federal Court case law on CSIS warrants will be a secret jurisprudence,” the authors write.
A new measure that provides a five-year penalty for any speech that “advocates or promotes the commission of terrorism offences in general” is unlikely to lead to prosecutions of journalists, but it could, and it sets up an unnecessary legal battle over the Charter right to freedom of expression, risks chilling speech, and, most disturbingly, may be used to justify secret activities against Canadians.
The clause may also make it more difficult for clergy, for example, to engage with people who hold extreme views but who may be dissuaded from taking action, the kind of threat-reduction activity that should be an important part of an anti-terrorism strategy.
Forcese and Roach are critical of the Conservatives for unwisely using “religiously themed” language in political debate on anti-terrorism measures, which increases social tensions and makes it harder for people working to defuse potential threats.
“In sum, Canada honed its coercive anti-terrorism tool kit in 2015 to include a new speech crime and powers of interdiction and disruption, but attempts to dissuade people from being drawn into terrorism have suffered from comparative neglect,” they write.
The government appears to have been putting political advantage ahead of public safety, using national security as a wedge issue, a first in Canadian politics.
“The laws enacted in 2015 in response to the October 2014 attacks were not wrong in trying to prevent terrorism. But read collectively, they bring us no closer to this key objective. Indeed, they constitute a step away from it. It is time for a re-think.”
It’s a compelling argument.