In a commentary in the Ottawa Citizen, Prof. Kent Roach looks at various mechanisms for legislative oversight of intelligence agencies and proposes "a single body to review the collection and sharing of intelligence throughout government" ("How to hold our spies accountable," November 19, 2013).
Read the commentary on the Ottawa Citizen website, or below.
How to hold our spies accountable
By Kent Roach
November 19, 2013
The Edward Snowden revelations demonstrate how signals intelligence agencies can exploit technology to engage in unprecedented levels of spying. The question is whether there is any meaningful restraint or accountability on our spies.
Canadians should be concerned that their accountability house is in particular disorder. The government has rejected the 2006 recommendations of the Arar Commission, which stressed that accountability should keep pace with the increased intensity of the whole of government and transnational national security activities. The heads of the two main watchdogs on Canada’s intelligence agencies have both recently raised alarms that they do not have the authority to chase intelligence threads beyond the agency that they review.
Canada is alone among democracies in not giving even a small group of parliamentarians access to secret information. The Afghan detainee affair underlines the mischief that this can cause in an interconnected world where so much is classified as secret.
Nevertheless, parliamentary review as contemplated in Wayne Easter’s bill before Parliament is not a panacea. The 2005 reforms contemplated a statutory committee that would not enjoy parliamentary privilege. The Joint Intelligence Committee in Britain has not performed particularly well in the post-9/11 era with respect to the possible complicity of officials in torture. This task had to be transferred to the now-aborted Detainee Inquiry and now to police investigations.
Congressional committees have been briefed on most of the notorious American national security activities but have failed to prevent or blow the whistle on them. Briefing in legislators can ties their hands and provide the thinnest veneers of legitimacy and accountability to problematic programs.
Parliamentarians that were briefed in on a dodgy CSEC program would at most be able to demand that the minister of defence or the prime minister know of and take responsibility for the program. This in itself could be important. Nevertheless, it would not necessarily change, stop or reveal the program.
The courts have played little role in restraining CSEC because its activities are authorized not by a judicial warrant but by a warrant from the minister of national defence. This approach is now being challenged by the British Columbia Civil Liberties Association and it remains to be seen what the courts will decide. The government will rely on restrictions that CSEC not target Canadians unless they are assisting the RCMP or CSIS presumably under a valid warrant.
The traditional warrant jurisprudence does not apply well to CSEC and other signals intelligence agencies, given that authorizations seem to relate to broad investigative techniques and not sufficient persons. Accountability mechanisms must seek to control both the necessity for obtaining the data in the first place and subsequent access to the data within and between governments. The Americans are considering having security-cleared special advocates provide adversarial challenge at the warrant stage. This may be worth pursuing in Canada. Alas, the courts have not traditionally policed sharing of information after it was obtained. The review of information sharing requires robust and nimble watchdog review.
In its most recent report, the Security Intelligence Review Committee has raised concerns that the caveats or restrictions on sharing intelligence that the Arar Commission stressed were so important to discipline and control over information sharing seem not to apply in the same way within signals intelligence agencies. Indeed, CSEC seems to have a “second-party” rule that applies to information that it shares with its Five Eyes partners as distinct from the more traditional “third-party” rule used by other intelligence agencies.
Independent watchdog review with powers to initiate systemic reviews and audits is crucial to accountability for signals intelligence. The former CSEC commissioner, however, in his last report echoed conventional wisdom in Ottawa that the Arar Commission’s recommendations for an over-arching structure would only create an “additional super-bureaucracy.” This soundbite approach may play well in some quarters but it ignores how accountability has failed to keep pace with increased whole of government use of intelligence and that the real bureaucracies are our rapidly expanding intelligence agencies.
The Arar Commission recommended statutory gateways that would allow the reviewers to share secret information. The time may have come, however, to have a single body to review the collection and sharing of intelligence throughout government. Australia has moved in this direction, but it would be critical that such a body could follow the information trail throughout government and not only have such powers when authorized by the government.
There is a case for creativity in the composition of such a review body. It could include current or former parliamentarians, sitting or retired judges, civil society representatives, current or former special advocates and others. A diverse body could help inspire public confidence. Such a body would have access to classified information but should put more emphasis on public engagement and outreach. The review body should also have the ability, if necessary, to challenge governmental claims that information must remain secret in court. Such a review body, even more than a parliamentary committee, is necessary to ensure that we have any chance of holding our spies accountable.
