The good and the bad of security agencies revealed

Security Review issues are in the news… and that's a good thing.

The issue of the conduct of the Canadian Security Intelligence Service (CSIS) and the Canadian Security Establishment (CSE), and the effectiveness of the independent review agencies overseeing them, was front and centre in the news last week. The reason was the curiously concurrent tabling of the Annual Reports by Public Safety Minister Goodale, from the CSE Commissioner, and from the Security Intelligence Review Committee (SIRC) which oversees CSIS.

Both reports revealed instances of apparent inappropriate conduct by the ‘spy’ agencies and, not surprisingly, the denunciation was immediate, loud, and over stated. What was surprising, however, was that the criticism was also extended to the review agencies themselves, with the Reports being cited as ‘proof’ that the current oversight and review process (which are different) is inadequate and a failure.

The basis of this criticism appears to be that the reported misconduct of CSIS and CSE is somehow a demonstration that the review agencies are failing in their duty to keep the operational agencies in line and in accordance with the law. In fact, especially in the case of the CSE Commissioner, the exact opposite is the case. Detecting, analyzing and then reporting misconduct is precisely what these bodies were set up to do, and the fact that they have done so, and we know about it, is a sign of systemic success, not failure.

We’ve seen what happens when the opposite ‘no news is good news’ mindset takes over in the corrections and justice system world, where breaches of release orders are not acted upon or reported (or even criminalized in the case of breaching parole conditions), all of which permits the message of systemic ‘success’ to be shouted from the rooftops to an unaware but correctly suspicious public. 

Ironically, the ‘misconduct’ reported by the CSE Commissioner was actually identified and reported to the Commissioner by CSE itself. I repeat: that’s a sign of systemic integrity, not systemic failure. Further, the Report https://www.ocsec-bccst.gc.ca/s21/s20/eng/2014-2015-annual-report specifies that the CSE breach was related to a failure to properly ‘minimize’ the metadata pertaining to some Canadians that was shared with our intelligence allies in the US, UK, Australia and NZ. Further, the difficulty appears to have arisen from a lack of clarity in Ministerial direction rather than any willful misconduct or evil intent.

The detailed Report also reveals that the Commissioner’s office is performing another important function – that of providing policy recommendations derived from operational experience. This ‘two way street’ approach is exactly what is needed in any enhanced review process which, hopefully, the Minister will appreciate going forward. The Commissioner also emphasizes the need for changes to authorize review agency coordination but does also note that all of the current security review agencies are actually meeting twice a year. Anyone who actually reads the Commissioner’s Report will appreciate that both CSE and the Commissioner’s Office are performing well.

The SIRC Report is not quite so encouraging. It details several operational deficiencies, including insufficient work related to ‘insider threats’, which is especially alarming given our current state and non-state adversaries. It also reports multiple instances of CSIS improperly obtaining personal information from the Canada Revenue Agency (CRA) despite a clear legal requirement to do so, and that the CSIS response – that the improperly collected information had been destroyed – turned out to be false. Even worse, it fails to ask or answer who decided to ignore the law, why CRA went along with it, and what disciplinary measures have been taken as a result. http://www.sirc-csars.gc.ca/pdfs/ar_2014-2015-eng.pdf

The Report also advises that CSIS is “obscuring” relevant information to the Minister on high importance issues, ignoring SIRC recommendations on case investigation, and warns about unspecified problems in how the agency is dealing with ‘foreign fighters’. The bad news is the insight into CSIS activities; the (sort of) good news is that SIRC has at least reported it.

These Reports are relevant not only for the operational insights they provide but also for the larger, still unresolved, issue of what steps should be taken with regard to security agency review overall. This issue was also in the news when, for reasons not yet unexplained, the Government appointed MP David McGuinty as the Chair of the, as of yet, unconstituted Parliamentary Committee to examine and make recommendations on the subject.

The issues of security agency oversight and review are entirely legitimate and indeed the new federal government’s mandate letter to the Public Safety Minister makes that relatively clear as the Minister is directed to:

“Assist the Leader of the Government in the House of Commons in the creation of a statutory committee of Parliamentarians with special access to classified information to review government departments and agencies with national security responsibilities.”

This concept of a specially constituted, and empowered, joint House-Senate Committee was repeatedly raised and rejected by the previous Harper government during the C-51 (Anti Terrorism Act) debate, but it too is now back on the radar screen. And that’s a good thing because such a Committee makes sense if it is properly constituted – and empowered (which should not be taken for granted).

In light of that, it was extremely encouraging to see the comments of Senator Dan Lang who is the Chair of the Senate Committee on National Security and Defence. In the last 18 months, the Committee has conducted informed and substantive hearings that produced detailed reports with recommendations on Border Security and National Security. The Committee has demonstrated a clear determination to call the right witnesses and ask the right questions – even it makes officials squirm on occasion.

The same is true of the Senate Legal and Constitutional Affairs Committee Chaired by Senator Bob Runciman and formerly co-chaired by Senator George Baker who bring a similar substantive, informed and non-partisan approach to the important work they do. 

The bottom line is that review of national security agencies is on the public radar as a priority in an unprecedented way. And that’s a good thing. Stay tuned to see if the new Government gets it right.

Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada