Liberal plan for new national security watchdog gets thumbs up from experts, despite ‘inevitable flaws’

Nationalpost.com
June 19, 2016
By Ian Macleod

Leading security and intelligence experts generally applaud the novel Liberal legislation to stand up a committee of parliamentarians to examine and publicly report on the efficacy and legality of Canada’s surging national security activities.

“Overall, (it’s) a very good bill, promising the creation of parliamentary capacity that is long overdue,” says Wesley Wark, a University of Ottawa professor specializing in intelligence, national security and terrorism issues.

Craig Forcese, associate professor of law at the same school and a foremost expert on national security law, calls it, “a good bill, although with inevitable flaws likely reflecting compromises designed to reconcile elements within the government.”

Unveiled last week, Bill C-22 proposes the creation of a “national security and intelligence committee of parliamentarians,” with a mandate to review the operations of at least 17 government departments and agencies with security and intelligence functions.

The move honours a Liberal election promise to boost scrutiny of national security operations to offset the increased counterterrorism powers granted to security services and police under the Anti-terrorism Act of 2015, formerly Bill C-51.

Review of the national security apparatus (and the handling of public complaints) is now siloed within three, small watchdog agencies staffed by subject-matter experts, including the Security Intelligence Review Committee (SIRC), which conducts after-the-fact reviews of the Canadian Security Intelligence Service (CSIS), the country’s human spy service. The three expert organizations will continue their work, at least for now.

Each, however, has limited statutory authority to exchange information with the others and cannot pursue investigations that stray into a counterpart’s jurisdiction. SIRC, for example, cannot follow CSIS’s trail when it crosses into the jurisdiction of the Communications Security Establishment (CSE), the foreign signals intelligence service.

The new all-party committee of seven MPs and two Senators, to be chosen by Prime Minister Justin Trudeau and supported by a small secretariat, would be sworn to permanent secrecy and tasked with reviewing any and all national security activities to gauge whether they are effective, efficient and legal. Its primary investigative tool would be a statutory power to access many of the nation’s most guarded secrets.

Even so, the legislation gives government a handful of disclosure escape clauses. Most notable is the appropriate minister’s power to veto committee requests for information deemed “injurious to national security.”

Such broad veto power, “places the committee on a much more constrained footing in terms of reviewing activities than the expert review bodies like SIRC,” Forcese observes.

Another clause allows a minister to refuse to share a broad range of information deemed to be “special operational information” under the Security of Information Act. Also restricted will be any information from which the prohibited information may be inferred, something Forcese characterizes as a “potential Mack truck” in the committee’s path. “Based on past practice in the government secrecy world, the universe of information that the government tends to believe may give rise to inferences is vast.”

He says C-22’s limitations on the committee’s ability to review certain activities is credible only if countervailed by a reformed expert review system that does get to see everything and can follow the threads from organization to organization.

Wark, however, doesn’t see any way around the restrictions. He points to compensatory requirements, including requiring ministers to inform the committee of any refusals, the committee’s ability to inform the expert review bodies of those rejections and its ability to report the refusal in its annual report to the prime minister, a redacted version of which is to be tabled in Parliament.

In announcing the legislation, Public Safety Minister Ralph Goodale called C-22 the “cornerstone” of a major government review and reform of the country’s national security architecture, prompted by last June’s passage of the Conservative’s Bill C-51, portions of which the Liberals have promised to change.

Says Forcese: “While C-22 is a good start, the best review in the world cannot compensate for bad substantive law (C-51). So it is important not to lose sight of the bigger picture.”

Concludes Wark: “The real test will be finding the right members, doing good work, earning the trust of the security and intelligence community, and finding ways to really inform the Canadian public about sensitive intelligence and security issues.”