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

 

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Friday
Mar312017

C-22 National Security Committee of Parliamentarians Redux: The Good, the Bad, and Avoiding the Ugly

By all accounts, bill C-22 will complete third reading in the Commons next week and will be off to the Senate. But things have not been going all that well.

The Good

C-22 would create a security-cleared national security committee of parliamentarians (CoP). For the first time in Canadian history, parliamentarians who don’t also happen to be ministers would be entitled to access at least some classified information in reviewing Canada’s national security framework and activities.

This is a big deal.

For one thing, Canada is essentially alone among peer states in shutting parliamentarians entirely out of the secrecy tent. 

For another, this idea has been bandied about in one form or another in Canada since the early 1980s. All the official political parties have supported the idea at one point or another. Under the Martin government, an ad hoc parliamentary committee studied the matter and issued a comprehensive report.  The government itself released a detailed discussion paper.  And there was an actual bill introduced in Parliament – that then died with the Martin government.

So in reading what follows, it is important to keep a clear-eyed view of an essential truth: almost any (proverbial) loaf is better than the non-existent loaf we’ve had to date.  

Elsewhere, I have advanced arguments as to why a CoP is important.  But no one can reasonably claim it is a panacea.  No one can reasonably claim that even the most legally formidable CoP could burrow into the deep recesses of the security services and unearth facts that the security services were determined not to share. 

And so everything has always depended on a whole bucketful of good faith: Good faith that the security services are acutely aware that they depend on social licence and they operate in a system built on the rule of law. 

And good faith that a CoP will be something other than another venue in which partisan politicians will play piñata. That is, the CoP must be a place willing to embrace complexity, recognize wicked problems and grapple with nuance.

If you scoff at either of these good faith pre-requisites, then there is no point reading further. And in truth, the idea that parliamentarians could and would meet the good faith standard has been greeted very skeptically in a lot of different places over a good number of years.

In some large measure, C-22 constitutes a suspension of this worry.  And in large measure, that worry is superseded by realization that all of us (the security services included) would benefit from a more sophisticated parliamentary and public discussion of national security.

The Bad

But aspects of the worry lurk, and they explains the structure of C-22.

So where did we start on that structure?  Let’s be clear: even when first introduced in Parliament, C-22 was stronger than its Martin government predecessor.  And while there is some variation of opinion on this, I believed (and continue to believe) that on paper it was (and is) stronger than its Australian and UK analogues.[1] (Whether it will in practice depends on that intangible: the bucketful of good faith).

In other words, C-22 was (and is) at least a half loaf.  But, of course, any half loaf is…missing a half loaf.  And so the parliamentary process is where parliamentarians have a chance to consider a law project.  And I am grateful and appreciative when those parliamentarians call on those of us who are struggling to research and analyze these kind of things.

And so my views (expressed with colleagues) have been: good law project; important development in Canadian national security accountability; has shortcomings that can be fixed.  Put another way: C-22 was a Volkswagen, with some doubtful emissions control results.  With amendments, it could be a BMW.

Without rehearsing all of those shortcomings, the key issue has been: will the CoP have a sufficient entitlement to see the information it needs to do its job? For more on that question, see here.  My view has been that in its first reading version, there were excessive limits on the CoPs access to information that opened the door to too many roadblocks, even when everyone was operating in good faith.  That is because even people operating in good faith can disagree.  And good faith disagreements over sharing of classified information may be the biggest challenge in national security law and policy.  So it would be nice to obviate that inevitable problem by giving the CoP indisputable access.

When C-22 was vetted and amended at committee stage of enactment, we actually got there: full access, except Cabinet confidences. This put the CoP on the same footing as our existing expert review bodies for CSIS and CSE.  I think this is wise and justifiable (see here).

But the manner by which the legislative committee got to these amendments was, well, confusing and did not necessarily reflect the intent of all members of the committee. That is, there were politics in play. And so what had to that point seemed to me to be a very high-calibre legislative deliberation (reportedly) frayed into something less high-calibre.

Predictably, the government put back the legal restraints on access to information when the bill came back to the House on report stage.  Now to be clear: they didn’t put everything back.  They definitely headed in the right direction.  For one thing, they did not restore fully the list of automatic information exclusions.  For instance, military intelligence is no longer automatically excluded from CoP consideration.  But yes, CoP access to information can be carefully controlled by the executive.

And so the question is: what to do now?

Avoiding the Ugly

I’ll offer a few oblique thoughts, for what they’re worth.  Above all else, let’s cool the jets. C-22 is not like other laws.  With most other laws, politicians can irritate each other in Parliament, a bill can pass and the resulting law can still function. 

It can still function because it doesn’t depend on the same politicians now sitting on the institution created by the law, and making it work. 

The C-22 CoP is radically different.  A committee of parliamentarians born in partisan acrimony will die in partisan acrimony.  If the opposition parties see the CoP as a unilateral “Liberal project” bereft of any input attributable to their interventions, they will have no political incentive to seeing the CoP succeed. We may be able to overcome this kind of politics – the actual members of the CoP will not be brick-throwers from their parties. 

But the absence of cross-party buy-in and an accrual of partisan acrimony reduces the prospect that the CoP will work, at all.  The members of the C-22 CoP will need to consolidate around a shared mission, shared professional culture and shared mores of behaviour. 

And if they don’t then the skeptics will be proved right: parliamentarians should never be let anywhere near classified information.

So let me step even further outside of my lane: to get there, there needs to be water in everyone’s wine. The amendments that have been made since first reading close some gaps.  We aren't that far off from a compromise.

What precise changes would bridge the current political crevasse is a matter best left to those who can speak for their parties.  But surely, this is no longer a debate between Volkswagen and BMW.  Instead, we may be within reach of a nice Subaru Outback PZEV with the technology package. (Full disclosure: I have an Outback. It plows through snowy roads nicely).

And so the task shall fall to the Senate. It needs to find us an off-ramp from the impasse.  And along the way, it needs to be thinking about the day after C-22 becomes law. My key point in this essay of mixed metaphors: A parliamentary process that exhausts the stock of good faith needed to power a CoP cuts off the nose to spite the face.

 


[1]                 There is some element of apple and oranges in making this statement. And much depends on how you weight and offset differences in various areas. (For me, breadth of mandate and access to information are the two most important considerations. I also worry a lot about staff resourcing and coordination with the expert review bodies.) For a table that compares the systems in C-22 (as it was at first reading), UK, Australia and NZ, see here.

But to amplify on my view: I think the subject matter and the institutional remit of the C-22 committee is broader than the UK and Australian analogues. (Although Richard Bolto’s fascinating recent study suggests that Australian committee is increasingly able to review operation matters.)

Access to information appears likely to be better for the C-22 committee than the Australian committee – or at least there appear to be more checks and balances on denials.

It is probably a toss-up as to whether the general language in the UK Act on denying access to information is narrower or broader than the more detailed language in the C-22, but what I like about C-22 is that exclusions don’t reach such things as solicitor client privilege.

(In the UK, my sense is that the access to info is a negotiated outcome in some instances, and so it is hard to compare laws and determine what happens in practice. But what is really important is that UK exclusions from information are discretionary -- that is, the government consciously chooses to deny information.  In C-22, there is now a (shorter) list of mandatory exclusions. But that is still a problem: "We can't give you this information, the law stops us. Blame the law". Hard to evolve if that is the standard. Recrafting at least some of these automatic exclusions -- especially the one dealing with law enforcement -- into discretionary exclusions would be a good compromise and something to learn from the UK. Meanwhile, the MoU between the UK ISC and the UK Prime Minister suggests that agency power to deny UK ISC access to information will be exercised “very rarely”.  Hint, hint on where another line of compromise over C-22 might be drawn).

The C-22 regime has more built in efforts to try to web the expert bodies and the C-22 committee together.  On paper, there is more robust staffing powers in C-22. 

The post-2013 UK ISC has some attractive features not reflected in C-22, including the manner in which committee membership is determined.  My own view is that these are not all that consequential. 

For other comparisons that take a less positive view than I do in comparing the C-22 CoP and the UK ISC, see here and here.

 

Tuesday
Feb212017

Much Ado about Probably Very Little: Canadian intelligence and 2012 French election

Last week, some Canadian newspapers posted a story [here and here] about CIA documents leaked by Wikileaks. The second article described the implications of this document as follows:

On Thursday, WikiLeaks released three CIA tasking orders detailing their plan to closely monitor 2012 French presidential candidates, including current President Francois Hollande and current first-round frontrunner Marine Le Pen.

Canada is listed along with New Zealand, Great Britain, the United States and Australia in a section indicating which countries are assisting with the “HUMINT” or human intelligence aspects of the operation. Those countries make up the Five Eyes intelligence sharing alliance.

Within hours, the NDP was calling on the government to explain the document: “Canadians don’t expect their government to spy on our closest allies, especially when it involves their own domestic elections. There’s nothing more sensitive than that, as we’re observing right now with the allegations in the U.S. election.”

This was a remarkable escalation of events.

The actual documents are here.  Like most leaked documents, they lack context, even if they are genuine.  More than that, they are also sprinkled with agency nomenclature that requires parsing.

The single reference to Canada reads:

Apparently on this basis of this single reference, the news reports concluded Canada was asked to "assist" the CIA. (As the story eventually notes: "The documents contain only a single reference to Canada, making it unclear what parts of the CIA efforts Canada may have been involved in.")

But this whole allegation of Canadian participation seems (very) doubtful.  First, none of Canada's actual intelligence agencies has the legal competency to conduct covert, overseas HUMINT foreign intelligence gathering.  CSIS is confined to security intelligence in its overseas activities (and this France activity would not be security intelligence, as defined in s.2 of the CSIS Act). CSIS's broader foreign intelligence collection must be conducted "within Canada" under s.16 of the CSIS Act.

CSE is a signals intelligence agency and would clearly be acting outside of its statutory mandate in doing HUMINT.

Military intelligence operates pursuant to the royal prerogative of defence -- and it is hard to see how that fits.

Global Affairs Canada has a broader remit -- including under the general language of the DFAIT Act and also a conceivable remit under the royal prerogative relating to foreign affairs. It has no express statutory intelligence function, but its legal authorities are broad enough to allow it to collect information in its diplomatic/foreign relations function. Whether it runs covert HUMINT is another matter -- it has confidential contacts, but I'd be surprised to learn it runs more complex HUMINT sources. (Sadly, because Global Affairs is subject to no external independent review, there is little on the public record on its activities, but see this statement made to Parliament.  There, then-DFAIT specified "Canadian diplomats do not work under cover or collect intelligence covertly from human sources").

All of this is to say that there is only a narrow range of options if Canada were to participate in a (let us assume covert) CIA HUMINT foreign intelligence (as opposed to security intelligence) activity: either it is a Global Affairs program of greater breadth than what has been reported in the past, or it is a Canadian intelligence service acting illegally.

But we don't need to go down this rabbit hole for one reason above all else: the document does not seem to say what the news stories inferred. "S//REL TO USA, AUS, CAN, GBR, NZL" is a classification tag (governing intelligence sharing). It translates into Secret//Release to USA, Australia, Canada, Great Britain, New Zealand" (or, in other words, the Five Eyes). See this guide to US classification nomenclature.

It does not, in other words, mean (in any respect that I can discern) that Canada is "assisting with the 'HUMINT' or human intelligence aspects of the operation" (whatever those might be -- and the document is actually very unclear on what, if anything, was being done in terms of HUMINT).

Put another way, unless you want to believe that Canada must be complicit just because you don't trust intelligence agencies, there appears to be no evidence supporting the conclusion on a Canadian role reported in the news stories.

Thursday
Feb162017

Revoking Citizenship for Terrorism Offences: Testimony to the Senate studying Bill C-6

The following are my speaking notes from my testimony before the Senate on bill C-6 and terrorism citizenship stripping:

Speaking Notes

Bill C-6

Standing Senate Committee on Social Affairs, Science and Technology

Feb 16, 2017

Good morning.  I’d like to express my thanks to the committee for inviting me to appear on bill C-6.  In my statement, I shall focus exclusively on the issue of citizenship revocation for terrorism.  These were powers enacted in 2014, and would be repealed by C-6. I support that repeal.

I will focus on two key points.  First, terrorist citizenship stripping provisions are different from other rules, such as revocation for fraud.  Second, they are problematic from a security perspective.

On the first point:  those defending the 2014 revocation law sometimes claim that war criminals have citizenship stripped, and that the 2014 law is, therefore, no different.

This analogy is misleading.  Nazi collaborators have lost citizenship -- because they lied about their conduct at the time they became Canadians.  The revocation is for fraud, not war crimes.  No Canadian has lost their citizenship for a war crime committed while a Canadian.

The 2014 law did something different: it used citizenship stripping as a supplemental punishment to penalize dual nationality Canadians for things done while a Canadian. In so doing, it effectively converted the many Canadians with dual citizenship into probationary Canadians.

Let me turn to why terrorism citizenship revocation is poor security policy.

First, there simply is no empirical basis to conclude that dual nationals pose a more serious security risk than single national Canadians.

Singling out dual nationals for the special risk of revocation is not, therefore, rationally connected to a security objective, a lethal shortcoming both from a security and constitutional perspective.

Second, Canada has worked arduously and deployed tools like no-fly lists, passport revocation, peace bonds and outright criminal prosecution to stop Canadians from traveling for the purpose of participating in terrorist activity. But the objective of citizenship stripping is, ultimately, to deport these people. If truly dangerous people are deported, the net effect may be to speed foreign fighters on their way.

Again, this raises questions of rationality.

But third, an irony of the structure of terrorism law in Canada is that citizenship revocation will not be imposed on the most dangerous of people. The manner in which terrorism offences are designed in the Criminal Code means they are most likely to be applied to plotters, not killers. Once someone becomes a killer, police and prosecutors are much more likely to charge the person with murder, not terrorism offences.  That is the reason why Justin Bourque, Richard Bains and most recently Alexandre Bissonette (at least so far) were not charged with terrorism offences.

Not a single person currently in prison in Canada for a terrorism offence enacted after 9/11 has actually committed an act of violence.  They were pre-empted.  And so as pre-empted plotters, they now face the risk of revocation, assuming they are dual nationals.  Killers would not.

Four, revocation would consume huge resources, best deployed for different objectives.  Setting aside the inevitable constitutional challenges to revocation itself, subsequent efforts to remove these former Canadians would be an arduous undertaking.  The risk of maltreatment in foreign countries may be high, placing Canada in the invidious position of trying to remove people to torture. 

We have been down this path before, with immigration security certificates.  At the end of the last decade, the government was spending multiple millions of dollars per year per security certificate, often in a vain attempt to defend the measures.  This was not money well spent.

Indeed, more money by a large margin was spent trying to remove people, than Canada has spent in total so far on counter-violent extremism and terrorist disengagement strategies.  While these programs are themselves unproven and untested, they are an area in which Canada clearly needs to improve its practices.  At the end of the day, even for terrorist convicts, rehabilitation, not displacement to other countries, is the most plausible security strategy.

That is because, fifth, displaced dangerous people remain dangerous – and indeed potentially more dangerous than if they remained in Canada. They will likely be impossible for Canadian security services to monitor, they may be free of strictures such as peace bonds, and history suggests that dangerous people outside of Canada can continue to do harm to Canadians and Canadian interests. 

Nor, sixth, would other countries readily welcome the arrival of a person radicalized to violence in Canada – and almost all of those serving terrorism sentences are made-in-Canada terrorists.

Canada’s international anti-terrorism objectives are poorly served if we become an exporter of instability, rather than invest in the hard work of terrorist disengagement.

In sum, it is my view that little recommends terrorism citizenship stripping, and there much that condemns it.

Thank you for your attention.  I welcome your questions.

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