About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Main | "9/11esque" Tweets and the Saudi Spat »
Thursday
Aug092018

Canada's Foreign Intelligence Desert

The recent flare-up in relations between Canada and the Kingdom of Saudi Arabia (KSA) places into sudden relief the challenges in Canada's foreign intelligence architecture. It follows hard on the heels of a Federal Court decision affirming the Canadian Security Intelligence Service (CSIS) can only collect foreign intelligence "within Canada". That case is discussed at length here and on Episode 48 of A Podcast Called INTREPID.

Just to be clear: CSIS may investigate threats to the security of Canada anywhere. "Threats to the security of Canada" are espionage, sabotage, foreign influenced activity (within or relating to Canada, and detrimental to Canada), terrorism and (in principle) subversion (in practice, CSIS has not run a counter-subversion program since the 1980s).

"Security intelligence" is *not* intelligence on the foreign, economic or defence policy or posture of another country, unless it falls within one of the categories listed above. Rather, these broader classes of information are "foreign intelligence" (defined, obliquely, in the CSIS Act as: "intelligence relating to the capabilities, intentions or activities of [foreigners or foreign states or groups]").

Canada's electronic intelligence service, the Communications Security Establishment (CSE), has the mandate to collect foreign intelligence, anywhere. But it does so electronically, through the "global information infrastructure" (defined in the National Defence Act as including "electromagnetic emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, systems or networks"). CSE does not collect HUMINT (intelligence from human sources).

For its part, Global Affairs Canada does collect diplomatic information, but is not per se an intelligence service. The scope of its collection activities is not well-documented and murky to an outsider like me. It is my understanding that GAC's Associate Deputy Minister for “International Security” manages a “threat assessment and intelligence services division” and that GAC possesses a Global Security Reporting Program (GSRP). My assumption, though, is that GAC will not run confidential sources, for a host of reasons.

In its reported form, the KSA spat is not a security intelligence matter -- unless you count that terrible, threatening tweet picturing an Air Canada jet flying toward the Toronto skyline. But understanding what is going on in KSA is clearly of foreign intelligence interest.

I would assume Global Affairs is feeding diplomatic intelligence into the decision-making process. I assume CSE is involved in signals intelligence. But beyond what Global Affairs is doing through its diplomatic networks, no Canadian intelligence agency can collect information from confidential sources outside of Canada on "the capabilities, intentions or activities of" the KSA.

This is a different sort of "gap" than the one at issue in the recent Federal Court case (which seemingly dealt with footloose communications, not extraterritorial confidential human sources). And it is a gap of longstanding duration, regularly discussed every decade or so.

We have muddled through so far with no human foreign intelligence service because of our minor footprint in foreign relations and because of close, allied relations.

But those allied relations are not what they used to be. I have precisely zero confidence that non-security intelligence sharing with the United Kingdom or the United States on a matter like the KSA is done in Canada's interest, rather than the interests of the UK and US. And that means intelligence-sharing may be selective. And even if it is not currently selective, it could well be selective in the future. We do not control the spigots.

Should we?

Creating an enhanced human foreign intelligence capacity is no small thing. In the past, I expressed considerable skepticism it was worth the risk, or that we could pull it off without starving more important activities of resources.

But the geopolitical situation is more complicated now than at any time since the Second World War, with a move toward multipolarity rather than the near-unipolarity of the post-Cold War and the bipolarity of the Cold War. States may realign in keeping with Viscount Palmerston's old adage that a state has no permanent friends or permanent enemies, just permanent interests.

It is not clear to me that Canada knows what its permanent interests are -- even (what for me is the unambiguous) need to remain a permanent friend of the United States is under strain among the commenting class.

But we may also not have the tools to preserve those permanent interests, anyway. If revisionist states see Canada as the runt of the Western litter and as a low-cost place for target-practice, a better understanding of the world seems wise. I am, therefore, no longer sure that building an enhanced foreign intelligence capacity is just one of those shiny baubles, distracting from more important things.

How to do this is another question. (It would be useful to know, for example, what exactly GAC does in this space rather than treat it as a black box.)

These are all questions now worth serious study.