The Book

 

 

 

 

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.

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

 

National Security Law Blog Search
Subscribe to National Security Law Blog

Best Law School/
Law Professor Blog Award

 

Most Recent Blog Postings
Tuesday
Jun202017

Agenda for National Security Law Day

Today, the government will introduce the blandly titled "Act respecting national security matters" in the House of Commons. Kent Roach and I have cleared the decks in order to provide prompt analysis. None of that analysis will spring fully formed, and will require weeks of careful contemplation, revision, rethink. But we have long since overcome the academic resistance to "hot takes", probably to our considerable peril. (There will be typos). So this is our plan:

  • The early arrivals will probably be government backgrounders. I generally do not like backgrounders, since they tend to be written in happy-face emoticons. It's all about the legislation. Legislation is the "doors and corners where they get you" that Miller warns about in The Expanse (excellent series streaming on CraveTV, by the way. Great books for scifi fans). But I will start tweeting out initial reactions to the backgrounders in an effort to "take the temperature" on this new legislation. My twitter account is @cforcese.
  • Once we have eyes on legislation, we will do a quick diagnostic.  First out the gate, we shall post a short oped-style piece. Maclean's has generously reached out to offer to work with us.
  • Along the way, I may jot down some issue-specific provisional comments via this blog space.
  • I shall be doing some media -- right now CBC Power & Politics has invited me on this evening's program for a quick analysis.
  • By tomorrow morning, Kent and I hope to have a longer "report card" style assessment, juxtaposing the new legislation against that which ails Canadian national security law, post bill C-51. Our jump-off point in preparing this assessment are the recommendations contained in our book False Security and those made in our response to the government's Green Paper consultation on national security. The IRRP has kindly agreed to work with us on this piece.
  • We have also sketched out the template for a longer, issue-specific working paper. As has been our pattern, we will post that on our SSRN website, and announce it here and on twitter. This longer piece may take a few days to produce -- much hinges on what is in (or missing from) the new law.
  • Since I imagine the new law proposal will have something or other in it requiring me to modify my teaching materials for the uOttawa National Security Law course this Fall, I will prepare some short video primers on aspects of the new bill periodically over the summer. As is my practice, these will be posted open access on my Vimeo videoblog feed. I will provide an organizational table of contents on this blog space.
  • Finally, this bill will probably be the impetus for Stephanie Carvin (NPSIA) and I finally to pull together a national security and policy podcast show, inspired by Lawfare's podcast, and that done by Bobby Chesney and Steve Vladeck. We shall not be able to compete in terms of quality or quantity (they have unusual presidential material to work with!). But there really is limited Canadian content on national security in the Canadian podcast space, so we figure it's worth a try. I am the law person, Stephanie the policy person. She'll be interesting. I'll be boring. We'll be calling on a lot of our friends in academia and (to the extent they are able) government to be guests.  You've all been warned.  When the time comes, we will trumpet how to subscribe and listen. (This will be different from the more doctrinal podcasted summaries of national security law posted here, though I suppose I will eventually need to update those as well.)
  • Very soon, I will be disappearing into the summer writing cave and archives here and far yonder to finish my book on the 1837 destruction of the steamboat Caroline on the Niagara River. (If you want to understand how, legally, the US and its coalition partners can be fighting Daesh in Syria, the Caroline incident is your starting point. This book has been a fascinating deep dive into a terrifically interesting clash, with repercussions that echo to our present day. The facts of the Caroline have often been misunderstood, so it's also an incredible "cold case". I hope for a massive readership and a Netflix series.)

See you on the flipside.

Tuesday
Jun132017

Enhancing the National Security and Intelligence Committee of Parliamentarians: Reduxed and Reduced

My part of the joint submission that Kent Roach and I made yesterday to the Senate SECD committee, studying bill C-22, is posted here (just after the earlier Commons testimony).  C-22 creates a National Security and Intelligence Committee of Parliamentarians -- one that would be security-cleared and entitled to see (at least some) classified information.

Also included in my document is an updated table comparing the C-22 proposal to parliamentary review bodies in the United Kingdom, Australia and New Zealand.

Discerning readers will note that Kent Roach and I have, as the saying goes, "put water in the wine" relative to our position at the Commons. There, we called for full C-22 committee access to classified information. But we live in the real world: having had a kick at the can, it is clear that this level of access is not going to happen.

So at the senate, we proposed some modest compromise positions that we think might bridge the distance between the government and opposition. Such a bridge is unusually important here, with a body whose members will be those same parliamentarians. There needs to be a shared commitment and confidence in the body, or it will suffer from a failure to thrive. (See my discussion here. I really hope that rumours of an opposition boycott once the committee starts-up are exaggerated -- this is not a body so anemic in its powers that it should attract that treatment. Nor should any party use national security to triangulate on partisan advantage. That way, madness lies.)

There is now also a measure of urgency. This bill has been in Parliament almost a year. I have little doubt that the government could get a delayed bill through after a rumoured prorogation. But we are running down the parliamentary calendar. Not only will other matters compete for attention, but also it takes considerable time to stand-up a new review body. For instance, even with existing national security review bodies, training a new reviewer takes roughly a year. Starting from scratch means, among other things: determining & security-clearing the membership, finalizing the budget, hiring an executive director, hiring staff (and the body must be well staffed), security-clearing the staff, acquiring secure facilities, putting in place document handling safeguards, establishing protocols for information-sharing by the security agencies (and existing review bodies), establishing internal rules of procedure (including regulations governing that), setting review priorities and...starting actually to fulfil the committee's mandate.

We are talking years before this body is fully operational. We have two years until the next election. Doing all this in an election year would be a very bad idea. And then, during the election the committee ceases to exist, and after the election, its composition will change.

The current C-22 proposal isn't perfect. But even on first reading, it was better than the earlier government bill under the Martin government. After the Commons process, it is much better. It also compares favourably to the systems in other Westminster democracies.

The glass is three-quarters full. Perhaps three-quarters full of watered wine. But at least there is wine. Indeed, at least there is a glass.  Even water. The alternative is: vacuum.

Let's get this done.

Sunday
May282017

How does CSIS threat reduction work?

As I write this, I am still hoping the government will be introducing legislation in Parliament before the summer recess responsive to its promise to reform the "problematic" aspects of Bill C-51 (2015). One of the most controversial aspects of C-51 were new powers given to CSIS to engage in "threat reduction" measures, and especially powers to break any Canadian law and breach the Charter, where pre-authorized by Federal Court warrant.

I am not among those who thinks CSIS should have no threat reduction powers. But I am among those who thinks there is no credible basis for the sweep of powers codified by C-51. As discussed at length in False Security, the untextured language in C-51 opens the door to inevitable legal challenges (especially the idea that CSIS could be pre-authorized in a secret, unappealable judicial process to breach each and every Charter right).  It also compounds problems of confliction with police anti-terror investigations.  Those operational challenges are discussed also in a blog posting here. (That posting may also serve as a refresher in relation to the threat reduction power).

To their credit, CSIS and RCMP clearly appreciate the risks involved. CSIS and RCMP has concluded a protocol -- called One Vision 2.0 -- that augments the level of inter-agency deconfliction. It has some useful features that could minimize the downstream effect of CSIS activities on prosecutions. (Even if CSIS may be immunized from prosecution where it operates pursuant to a lawful threat reduction power, its activities may still be raised as abuse of process as part of a defence by a target, should that target ever be charged with, e.g., a terrorism crime. That has happened even for the police, when they properly exercise their Criminal Code s.25.1 powers to violate the law in the course of an investigation. See R v JJ, 2010 ONSC 735 at paras 282 and 302, leave to appeal refused, [2010] SCCA No 161).

CSIS and Global Affairs also have their own memorandum of understanding on CSIS threat reduction conducted outside of Canada (which is permitted under the bill C-51 framework).

And a mostly-redacted ministerial direction may include language on how CSIS is to deliberate with other government agencies before doing threat reduction.

I say "may" because CSIS operational policy document I obtained under Access to Information suggests it does.  Though deeply redacted as well, this document has some interesting features, which I thought worth canvassing in this blog entry.

Mandatory Government Consultation

The policy says, consistent with ministerial direction, "consultation with GoC partners, including the Royal Canadian Mounted Police (RCMP), DFATD [now Global Affairs] and others as appropriate, will occur prior to seeking approval to undertake s.12.1 measures".  This is especially true for CSIS anti-terror investigations (that is, investigations relating to s.2(c) threats to the security of Canada): "The RCMP must be consulted on all s.12.1 measures for all investigations in relation to s.2(c) of the CSIS Act and others as appropriate".

Global Affairs, for its part, "will be consulted on s.12.1 measures that are assessed as having potential foreign policy implications".

These seem like obvious steps, but my sense is that close synergies between departments to make sure responses are coordinated and do not act at cross purposes has been a work in progress, and a renewed priority since at least 2014. CSIS's more aggressive post-C-51 powers make it urgent to get this right, or watch CSIS operations scuttle prosecutions.

Last Best Tool

There is also language stating that CSIS employees must "consider the range of national security tools available to respond to threats to the security of Canada; the use of s.12.1 measures in an additional tool". I think this language could be stronger, but the theme is a good one: threat reduction is an extreme measure. Disruption may, notoriously, go sideways and prompt unforeseen blowback. Preserving it as a "in case of emergency, break glass" power should be the order of the day.

Approvals

An inevitable conundrum created by C-51's inelegant structure is the question of when CSIS needs a court warrant prior to conducting threat reduction. The current language is this: "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1." 

It follows that a warrant is required where a measures will (not might) contravene a right or freedom under the Charter or be contrary to "other" Canadian law.

"Will" is a high threshold. "Other" law is a big universe. So much will depend on legal advice. The CSIS procedural document specifies that CSIS "will consult with CSIS Department of Legal Services (DLS) to determine if a warrant may be required".

Based on what we know at present, CSIS has conducted threat reduction a few dozen times since 2015. It has never sought a warrant, meaning CSIS and its lawyers concluded that the threat reduction did not meet this "will" contravene Canadian law standard.

My issue is: who will audit this legal advice? Will SIRC have the in-house capacity to review legal advice?  Is there a "red team"?

Consider this example: CSIS concludes that individuals may be radicalizing to violence under the sway of a charismatic figure. (Research suggests that such figures can be pivotal.) Absent, though, a basis for criminal charges or a peace bond or some such thing, there is no legal restraint that can be imposed on the figure. And so CSIS decides to disrupt by engaging in, well, false news. It undermines the credibility of the figure by, say, spreading rumours among his followers that the leader is a fornicator, liar, swindler (whatever).

Does CSIS need a warrant? I would say: "yes".  Rumours like this -- if untrue -- are defamation. Defamation is contrary to "other" Canadian law -- the common law. But would CSIS and its lawyers read the law in this manner and seek a warrant?

Another example: CSIS engages in any threat reduction in a foreign country without the permission of the territorial state.  Does CSIS require a warrant?  I would say "yes". The extraterritorial exercise by a state of "enforcement jurisdiction" (basically any state power) without consent on the territory of another state is a violation of customary international law. Customary international law is part of the common law of Canada, unless displace by statute. There is no such displacement, not least since Parliament is presumed to legislate in conformity with international law. (To the extent displacement of international law exists in the CSIS Act, it comes only under court warrant: a court may authorize a breach of foreign or other -- as in, international -- law, under s.21.1(4). But the Act says nothing about CSIS breaching customary international law unilaterally). And so CSIS conduct is "contrary" to "other" Canadian law. (See discussion here, and the longer discussion here.)

Would CSIS and its lawyers read the law in this manner? I don't know. Do they have international lawyers working with them on this?  Would GAC lawyers be "read in" on the operation to this level?

All of this is to say: I wonder how we will tell whether CSIS is getting the warrants it should be getting.