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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Latest Book: Available from Irwin Law in April 2018.

Monday
Mar092015

Bill C-51: Do our Allies Really Have Similar Powers to Violate the Law?

In its backgrounder on the new CSIS powers proposed in Bill C-51, the government writes:

Our Government is working to disrupt acts of terrorism before they come to pass. This Bill proposes to give CSIS a new mandate to intervene in order to disrupt threats to the security of Canada. ...With its new mandate, CSIS could take measures, at home and abroad, to disrupt threats when it had reasonable grounds to believe that there was a threat to the security of Canada. ... Intelligence services in most of Canada's close democratic allies have had similar mandates and powers for many years.

Kent Roach and I have published our analysis of these new powers here and our examination of Canada's inadequate accountability regime here.  I won't therefore repeat that assessment in this post.  Rather, I want to raise issues concerning this line: "Intelligence services in most of Canada's close democratic allies have had similar mandates and powers for many years."

The government (and especially Minister Blaney) has repeated this many times, adding that our system is even better than those of our allies because the CSIS powers will require warrants.

I believe these claims to be incorrect, or at least require substantial nuancing.

First point: I have had little time to probe this issue in full. That is, I have not had time to review the law of all of our allies, or to speak to professors specializing in national security law in all jurisdictions.  I have, however, looked at the law of New Zealand, Australia, the United Kingdom and the United States.  And I have spoken to very respected law professors specializing in security law in the last three jurisdictions.  I asked them this question (example from my message to my Australian counterpart):

The Cdn government keeps saying the new CSIS powers just catch up to powers that allied agencies have (their CSIS backgrounder: "Intelligence services in most of Canada's close democratic allies have had similar mandates and powers for many years"; and ministers have this in their speaking points).  These statements puzzle me.  ASIO in Australia has a power of investigative detention.  Maybe the government is thinking of this, but then they have also said that CSIS won’t detain anyone.  I have spoken to colleagues in the UK and they don’t seem to think MI5 has powers of the sort that the government is proposing for CSIS.  The US doesn’t have a CSIS-type organization, and the FBI is law enforcement.  So no help there.  Is the government thinking about foreign intelligence services like the CIA and MI6?  If so, well that would be a huge problem since those services don’t exercise their powers domestically for the very reason that they would often be unlawful and trench deeply on civil liberties (Church inquiry and all that).  And at any rate, most countries know it is a very bad idea to place a security intelligence organization together with a foreign intelligence organization in the same agency.

This is all a long way of saying, do you have any sense of what the government might be talking about?  I’d be grateful for your insights.

The response from colleagues from Australia, UK and US is: the domestic services of these countries simply do not have powers analogous to what Bill C-51 proposes for CSIS.  Period.  (In their responses, some colleagues said they were "perplexed" by the Canadian government's claims.  One suggested that perhaps our government was thinking of Russia -- I assume he was joking.)

This conclusion re: Australia, UK and US appears to be true for New Zealand.  See s. 4(2) here.

So none of our "Five Eye" allies have seen fit to give their domestic covert service the power to do things domestically that the government wants CSIS to do in Canada.

Most of these allies do have foreign services -- that is, a separate organization (ASIS, MI6, CIA) that works overseas.  Even here, however, the government misstates if it insists that whatever conduct CSIS gets up to internationally will be authorized by a Federal Court warrant, and this makes for more robust accountability than exists among Five Eye foreign intelligence services.  

The only circumstance in which the bill clearly requires a warrant is when CSIS “will” contravene a Charter right or be contrary to other Canadian law. As with its existing surveillance powers, a substantial amount of CSIS activity will fall short of the warrant “trigger” and will never come to a judge.  This is especially true in international operations: places where Canadian law and the Charter generally don’t reach and so are irrelevant as a trigger.  Put another way: Canadian law doesn't apply overseas.  So it can't be violated.  So no warrant is ever required. 

So to summarize what I have been told by colleagues who teach and write on security law in our closest allies:

No, Canada's Five Eyes allies do not have domestic intelligence services that do disruption analogous to the powers in C-51.  And no, we won't have more checks and balances for CSIS foreign operations, because the warrant requirement will rarely apply to foreign operations.

If all this is correct, that means Canada is prepared to let its domestic intelligence service act beyond the law in a manner that has no precedent among our closest allies. 

So exactly how are we playing catch up to "close democratic allies have had similar mandates and powers for many years"?  It looks like we are leading the charge in eroding the rule of law.

 

 

Wednesday
Mar042015

Bill C-51: Draft List of Proposed Amendments

Parliamentary committee hearings on bill C-51 begin next week.

We have created a table consolidating recommended amendments to bill C-51. We will continue to tinker with these through the week. On balance, we would be much more ambitious if we thought there any serious prospect that the parliamentary process would accommodate a full and open effort to reconcile clear and informed security preoccupations with clear and informed “second order” consequence considerations (e.g. in relation to rights and also in relation to the possibility of such things as more difficult criminal trials and RCMP/CSIS “confliction” problems). As is, we have proposed changes that we think they are reasonable and square the circle between the government’s core objectives and at least mute concerns we and others have been raising.

As always, we are “crowdsourcing” and we welcome comments directed at our email accounts cforcese@uottawa.ca or kent.roach@utoronto.ca or twitter @cforcese.

Please forgive us is we can not respond to every message that comes out way.  We are two individuals operating without any administrative support, whose families wonder where they have disappeared to since bill C-51 was tabled in January.

We have posted our draft table of recommended amendments in Word and PDF format.

Friday
Feb272015

Bill C-51: Backgrounder #5: Oversight and Review: Turning Accountability Gaps into Canyons?

Canada’s system of national security “oversight” is imperfect. Its system of national security “review” is frayed, perhaps to the breaking point. The government’s antiterrorism law, bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertible security service scandals.

There is often a misunderstanding about the distinction between “oversight” and “review”.

In Canadian practice, oversight is usually an executive branch function. This system has not always worked – the Air India Commission suggested (and the government rejected) new centralized oversight systems for reconciling competing national security interests.

C-51 does not introduce new reforms in this area. The government instead points to judicial warrants authorizing the new CSIS powers – a form of oversight. But this is, at best, a partial form of oversight. CSIS will not always require warrants. Judges will issue warrants in secret proceeding in which only the government side is represented. Nor will they always know what is then done in their name. There is no formal “feedback” loop between CSIS and the judge concerning the execution of the warrant, a key concern where (as with CSIS warrants) the conduct is covert and the warrant never disclosed.

In these circumstances, accountability depends on review. “Review” is an audit of past performance, to ensure compliance with law and policy. CSIS’s review body is SIRC. The idea that SIRC review is adequate and enhanced review is needless red tape is simply wrong.

SIRC’s resource constraints and design mean that it is incapable of reviewing all of CSIS’s activities, or even CSIS’s conduct under all its existing warrants. A necessarily partial approach to review will be spread even thinner as CSIS’s powers expand.

More than this, SIRC (and other review bodies) are unnecessarily hamstrung by legal limitations that “stovepipe” their functions to specific agencies, and prevent them from “following the trail” when government agencies collaborate – an increasingly common practice that C-51 (and C-44) will unquestionably increase.

The Arar Commission recommended that “statutory gateways” be created allowing SIRC to share secret information and conduct joint investigations with Canada’s two other existing independent national security review bodies. The government has not acted on this report, or the Privacy Commissioner’s 2014 report that its powers were inadequate to review security information sharing – and information sharing is to be dramatically increased in C-51.

Meanwhile, not even SIRC reform would address the fact that Canada, alone among its “Five Eye” security partners, does not give parliamentarians access to secret information. As pointed out recently by four former prime minister’s (and others) a parliamentary review is not redundant – it can perform valuable “pinnacle” review by examining the entire security and intelligence landscape.

Other democracies have made parliamentary review work well with independent expert review bodies. They have also shown that parliamentary review powers contribute to a broader parliamentary competence in an area where it is essential: national security law.

Download the paper at the download site on the Social Science Research Network (SSRN).  Or use the mirror site (we shall not keep the paper on the mirror site up to date with additions).

[Please note that while SSRN catalogs this paper into its collection, “Under Review by SSRN” will appear as a watermark on this screen. The paper will nevertheless be available for download]