LIBERALS’ PROMISED NATIONAL SECURITY REFORMS LACK TEETH, CRITICS SAY.
‘Disruption power’ still not reined in
• The cornerstone of the Liberals’ promised national security reforms — parliamentary “oversight” of federal spy activities — would not allow lawmakers to scrutinize the most potentially troubling of those actions until after they’re completed, if at all.
The criticism is one of several expected to be voiced this week over Bill C- 22, which will set up a committee of MPs and senators to monitor the country’s spooks.
The panel — whose members will have to pass security checks — is intended to police the Canadian Security Intelligence Service ( CSIS) and 16 other federal entities with national security responsibilities, many of which now operate without independent scrutiny.
Its mandate also extends to examining the “legislative, regulatory, policy, administrative and financial framework for national security and intelligence.”
The Commons public safety committee begins public hearings on the bill Tuesday.
While national security experts praise C-22 for seeking to make spies more accountable, the New Democratic Party is expected to call for at least five significant amendments, starting with the removal of eight exemptions the government can claim in order to deny committee requests for information.
They include the seemingly vast category of “special operational information,” which critics call a “catchall” standard to block dis- closure. Ministers also can prevent the committee from reviewing any information that “would be injurious to national security.”
This is despite the Trudeau government’s repeated pledge to give the committee “access to all government information it needs.”
A spokesman f or Public Safety Minister Ralph Goodale said Friday t he minister Goodale is “open to reasonable amendments.”
“The goal of the committee of parliamentarians is to ensure that our national security community is working effectively and that they are safeguarding our values, rights and freedoms and the open, inclusive, generous character of our country,” press secretary Scott Bardsley said in an email.
Opposition is expected to be led by Murray Rankin, the NDP’s public safety critic and former legal counsel to the Security Intelligence Review Committee, t he small, independent expert review group watching over CSIS.
The Conservatives, meanwhile, are caught in the middle. As architects of the sweeping counter- terrorism powers bestowed on CSIS, the RCMP and government under 2015’s Anti- terrorism Act ( C- 51), they can’t complain the new bill doesn’t go far enough to guard against potential abuses of t he extraordinary state powers they created.
That’s especially t rue since the Tories refused to create commensurate oversight and review mechanisms.
Yet the Liberals have already abandoned what they claimed in opposition was a fundamental and necessary fix for C- 51: real- time strategic oversight of CSIS activities, not after the fact, as now set out in C-22.
“The difference between the two is not merely a quibble over language. The two words are not synonymous,” then Liberal leader Justin Trudeau told the Commons in February, 2015, days after C-51 was tabled.
“An oversight body looks on a continual basis at what is taking place inside an intelligence service and has the mandate to evaluate and guide current actions in ‘ real time.’
“That is crucial and must be amended, if we are giving CSIS the new powers proposed in Bill C- 51 in its current form.”
The word “oversight” does not appear in the text of C- 22. “Review” pops up 32 times, most notably to describe the committee’s prime mandate.
Michael Nesbitt, a national security law expert at the University of Calgary, says what’s needed is realtime operational oversight, something the seven MPs and t wo senators could never manage.
“The best you can get is either oversight of process well after it’s taken place or before it’s taken place, though ministerial oversight,” he said.
But, “the ministerial oversight takes place when you’re signing off on what (CSIS is) proposing to do. Whether they actually go and do what they propose is another matter. Nobody is overseeing that in the current context and, frankly, that’s where the mistakes happen.”
The Liberals have been promising for more than a year to reform the anti- terrorism law by narrowing and clarifying what they characterize as the overly broad scope of some of the new powers.
Most concerning is the provision that changed CSIS from a strictly intelligencegathering service to one with an offensive remit to physically disrupt real or perceived threats. These include not just terrorism, but threats to economic and financial stability, critical infrastructure and the security of other states.
The Liberals have vowed to rein in the disruption power, but have yet to say how.
As the law now stands, if a threat reduction activity ( TRA) will violate the Criminal Code or the Charter of Rights and Freedoms, CSIS must first secure a Federal Court warrant authorizing the breach.
Some experts argue this judicial control will act as oversight on the potentially dangerous, but important new law- breaking power, one which CSIS has yet to use.
( If a TRA does not violate the law or the Charter — and stops short of death, bodily harm, obstruction of justice and sexual impropriety — no judicial approval is needed.)
But because the proposed committee will be a review body with no capability for anything close to real- time “oversight,” its ability to assess the legality, efficacy and reasonableness of CSIS TRAs will be a post-mortem effort, at best.
Other key opposition concerns include: Prime Minister Trudeau’s unusual and unilateral appointment in January of David McGuinty, an Ottawa- area Liberal, as committee chairman; lack of a “whistle- blowing” provision that would impose a legal duty on the committee to report suspected wrongdoing; and the PM’s power to direct the committee to revise its annual and special reports to him if he believes the disclosure would injure national security, national defence and international relations.