PM’s CSIS oversight plan is, in reality, nearly toothless
Will Justin Trudeau’s government keep its pledge to undo the worst parts of Stephen Harper’s wide-ranging antiterror laws? The signs are not encouraging.
To date, the Trudeau government has moved firmly on only one portion of that particular election promise: the formation of a parliamentary committee to oversee the country’s various security agencies.
But that proposed committee would be hedged in by so many restrictions as to render it almost toothless.
Meanwhile, the substantive security amendments the Liberals promised in last year’s election campaign are being put off until at least the fall. Public Safety Minister Ralph Goodale says he wants to consult first.
That the new government is moving so hesitantly on its predecessor’s antiterrorism law should come as no surprise. When the Harper Conservatives introduced Bill C-51 last year, Trudeau’s response was carefully inconsistent.
He said his Liberals didn’t like the bill but would vote for it anyway — and then amend it if they won power. In their election platform, the Liberals vowed to “repeal the problematic elements of Bill C-51” and introduce a new bill that better protected civil liberties.
To that end, they made eight specific promises, ranging from establishment of a parliamentary oversight committee to partial repeal of a provision that, with judicial consent, allows the Canadian Security Intelligence Service to engage in any disruptive activity short of bodily harm, obstruction of justice or violation of a person’s sexual integrity.
In the latter case, the Liberals didn’t promise to remove this disruptive power entirely.
But they said they would insist that if CSIS broke the law it do so within the confines of the Constitution’s Charter of Rights and Freedoms.
In government, the Liberals have been even more cautious.
During the election campaign, for instance, they promised to review all appeals by Canadians who find themselves on the no-fly list.
Yet they now promise redress only for people with names similar to those on the no-fly list. These people, some of whom are infants, will eventually be able to apply for unique identification codes testifying to their innocence.
But the proposed National Security and Intelligence Committee of Parliamentarians, announced last week by Goodale, is particularly instructive. Designed to oversee CSIS and other spy agencies, it would be made up of MPs and senators hand-picked by the prime minister of the day.
The government could refuse it permission to investigate any activity if it deemed such an investigation would injure national security.
The government could also cite national security as a reason to refuse the committee any information it was seeking.
The committee would report not to Parliament but to the prime minister. The prime minister would have the right to censor any report before it was made public. It would be illegal for committee members to publicly reveal anything without the authorization of the prime minister. The normal parliamentary privilege granted MPs and senators, which allows them to speak without fear of prosecution, would not apply.
Consider what the public response would have been had Harper proposed such a centralized oversight system.
While Canada’s proposed committee follows the British model, it is in some ways even more constrained.
For instance, members of Britain’s Intelligence and Security committee are nominated by the prime minister but appointed by Parliament.
But even so, as a 2014 British parliamentary report found, the oversight committee is dependent on whatever the government and its security services are willing to tell it.
The oversight committee’s analysis of Britain’s decision to enter the Iraq War against Saddam Hussein, for instance, was later found to be singularly deficient — largely because the government of the day withheld information.
In another case, involving the rendition of a British resident to Guantanamo Bay, a judge later concluded that the security services had simply lied to the oversight committee.
In short, even with the best of intentions, parliamentary oversight is not enough to curb too-powerful security services. The trick is to ensure that such services are not given excessive power in the first place.
Some critics, including eventually the New Democrats, understood this when Bill C-51 was unveiled. I’m not sure the Liberals ever did. Thomas Walkom’s column appears Monday, Wednesday and Friday.
In short, even with the best of intentions, parliamentary oversight is not enough to curb too-powerful security services