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IRPP e c u r i t y choicesVol. 15, no. 9, September 2009 ISSN 0711-0677 www.irpp.org a n d D

Accountability e m

in and for National o c r

Security a c y

Reg Whitaker and Stuart Farson Reg Whitaker is distinguished research professor emeritus at York University and adjunct professor of political science at the University of Victoria. He writes on Canadian politics and on security and intelligence, and his publications include Canada and the Cold War (2003) and The End of Privacy: How Total Surveillance Is Becoming a Reality (1999). He served as a member of the advisory panel to Justice Dennis O’Connor for the second part of the ounded in 1972, the Institute for Research on Commission of Inquiry into the Actions of Canadian Public Policy is an independent, national, Officials in Relation to Maher Arar. He also chaired a federal advisory panel to review aviation security. In nonprofit organization. F 2007, this panel also reported on aviation security issues to the Honourable John Major in the IRPP seeks to improve public policy in Canada by Commission of Inquiry into the Investigation of the generating research, providing insight and sparking Bombing of Air India Flight 182. debate that will contribute to the public policy decision-making process and strengthen the quality of Stuart Farson is an adjunct professor of political the public policy decisions made by Canadian science at Simon Fraser University. He served as research director for the parliamentary committee governments, citizens, institutions and organizations. that reviewed the Canadian Security Intelligence Service Act in 1989-90. He has worked with research IRPP's independence is assured by an endowment fund institutes in Europe, North America and the Pacific established in the early 1970s. Rim, testified before numerous parliamentary com- mittees, and acted as an adviser to Canadian gov- ernment and NATO task forces and workshops. He was an expert witness for the Commission of Inquiry into the Actions of Canadian Officials in ondé en 1972, l’Institut de recherche en Relation to Maher Arar and in recent national secu- politiques publiques est un organisme canadien, rity litigation involving port workers and the Marine Transportation Security Clearance Program. He is F indépendant et sans but lucratif. the author of numerous articles and book chapters on security and intelligence, and he co-edited L’IRPP cherche à améliorer les politiques publiques Security and Intelligence in a Changing World: New canadiennes en encourageant la recherche, en mettant Perspectives for the 1990s, Intelligence Analysis and de l’avant de nouvelles perspectives et en suscitant des Assessment and the PSI Handbook of Global Security and Intelligence: National Approaches. débats qui contribueront au processus décisionnel en matière de politiques publiques et qui rehausseront la This publication was produced under the qualité des décisions que prennent les gouvernements, direction of Mel Cappe, President, IRPP, and les citoyens, les institutions et les organismes Wesley Wark, Fellow, IRPP. The manuscript was copy-edited by Barbara Czarnecki, proofreading canadiens. was by Zofia Laubitz, production was by Chantal Létourneau, art direction was by Schumacher L’indépendance de l’IRPP est assurée par un fonds de Design and printing was by AGL Graphiques. dotation établi au début des années 1970. Copyright belongs to IRPP. To order or request permission to reprint, contact:

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Whitaker, Reg, and Stuart Farson. 2009. The opinions expressed in this paper are those of the authors and “Accountability in and for National Security.” IRPP do not necessarily reflect the views of IRPP or its Board of Directors. Choices 15 (9). Security and Democracy / Sécurité et démocratie Research Directors/Directeurs de recherche Mel Cappe and/et Wesley Wark

This IRPP research program explores the complex challenges confronting Canada with regard to the post-9/11 security environment and its impact on domestic and international policies. The research addresses issues that are in many ways new to the country and to the formulation of Canadian national security policy, above all the threat posed by global, transnational terrorism. The program examines the interrelationships between new security demands and democratic norms, focusing in particular on the building blocks of a sound democratic model for national security, namely, effective intelligence; capable law enforcement; appropriate, stable laws; good governance; accountability; citizen engagement and public knowledge; emergency response capabili- ty; wise economic policy; and public-private-sector partnerships.

Ce programme de recherche s’intéresse aux défis de sécurité d’une grande complexité que le Canada doit relever depuis le 11 septembre, de même qu’à leur incidence sur nos politiques nationales et interna- tionales. Il traitera d’enjeux souvent inédits pour notre pays en matière de sécurité nationale, notam- ment le terrorisme mondial et transnational. Le pro- gramme vise à analyser l’interrelation entre les nou- velles exigences de sécurité et les normes démocra- tiques, de manière à définir les éléments de base sui- vants : un modèle de sécurité nationale pleinement démocratique, notamment en matière de renseigne- Contents ment ; l’efficacité du maintien de l’ordre ; la stabilité et la légitimité des lois ; la gouvernance éclairée ; la 2 Introduction responsabilisation ; l’engagement citoyen et l’infor- 4 The Concept of Accountability mation du public ; l’intervention d’urgence ; une poli- 13 Historical Map of National Security tique économique avisée ; et les partenariats entre les Accountability secteurs public et privé. 32 The Post-Arar Accountability Reform Agenda 36 What We Know about the Current System of Accountability 38 Conclusions and Policy Recommendations 43 Notes 48 References 53 Résumé 54 Summary

1 IRPP Choices, Vol. 15, no. 9, September 2009 Reg WhitakerandStuartFarson for NationalSecurity Accountability inand es underpinningit.W cuss boththeprocessofaccountabilityandpurpos- national security. I Introduction deserve carefulconsideration. such asthepublicinterest.Such claimstherefore direct conflictwithotherequallyimportantconcepts, watchfulness. Onsomeoccasions,theymaybein in fact,maybevehiclesforavoidingcloserlegislative security doesnotnecessarilymake itso.Such claims, ernment claimssomethingtobeamatterofnational 1 debatable (Saltstone1991, 36-54;Forcese2006,963- edge thatwhatconstitutesnationalsecurityisitself conceptions ofaccountability are bothcontentiousterms.Whileweexplorevarious initial caveat:accountabilityandnationalsecurity those involvedinprotectingCanada’snationalsecurity. without simultaneouslyhinderingtheoperationsof that wouldenhanceCanada’ssystemofaccountability system. W both thestrengthsandweaknessesofCanadian In pursuingsuchquestions,wehopetoelaborateupon departments andagenciesthereforenecessarilyfollow. of boththeproprietyandefficacygovernment extraordinary intrusiveorcoercivepowers.Questions the safetyofitscitizenry;andtopreventabuse preserve andenhanceitsnationalinterests;toensure primarily toprotectthestate’sdemocraticfabric; independent bodies conductsuchprocesses. Ofthe dation includereviewandoversight, especiallywhen 000; Forcese2008b Other contentiousconcepts requiring specialeluci Several conceptualdifficultiesneedaddressing.An ments andagenciesresponsibleforCanada’s accountability thatappliestogovernmentdepart- n this paper, weexaminethecomplexsystemof e intend toputforwardrecommendations 2 1 Our objectiveistoidentifyanddis- , e 3-13). Themerefactthatagov- believe thesepurposesare , we should acknowl - - two, review is seen as scrutinizing institutional prac- Governments have a broad choice of instruments tices after the fact, and is therefore less likely to be when it comes to developing new policy, scrutinizing it perceived as politically contentious. Oversight, how- in progress and evaluating it after the fact for trans- ever, which is often associated with scrutiny begin- parency, legitimacy and public participation. We find ning earlier and continuing after the fact, tends to be that accountability has been sought for both propriety more problematic because it is seen as necessarily and efficacy, two different but interrelated criteria, intruding upon executive systems of control and which we discuss in more detail later. While after-the- management, which are geared primarily to ensuring fact reviews may be appropriate for investigating mat- institutional efficacy and compliance with policy, ters of impropriety, this does not negate the need for regulations and law. Although after-the-fact review ensuring before the fact that institutions have appropri- has generally been the preferred option in Canada for ate policies and procedures in place to guarantee propri- independent scrutiny, we find this preference neither ety. In the case of efficacy, both before-the-fact scrutiny desirable nor entirely logical when measured against and after-the-fact scrutiny may similarly be appropriate. the objectives for accountability in national security. Thus, we will insist upon widening the scope of the We argue that the debate over how best to scruti- debate about how accountability should be understood nize Canada’s security and intelligence community to include the practices of both review and oversight. has not fully considered the strategic intent of the From our perspective, while various forms of scrutiny various bodies and processes selected to effect processes exist in all three branches of government, accountability, nor has it adequately differentiated they fall into three general categories. First, there are between their capabilities. In short, there has been an those that have only a propriety mandate. The commis- inadequate assessment of their effectiveness in terms sioner for the Communications Security Establishment of what they should and can accomplish. Thus, there Canada, for example, has no legal authority to evaluate are several important questions to ask of the institu- whether the agency is achieving its intelligence objec- tions and procedures once they are in place, some tives. Second, certain commissions of inquiry have dealt necessarily on an ongoing basis. For example: mainly with matters of efficacy. Finally, institutions like • To what extent do the various accountability proce- Parliament and to a degree the Security Intelligence dures make the entire security and intelligence Review Committee (SIRC) arguably have an ongoing community understandable, transparent and public? mandate to do both. In the latter regard, both the pow- A

• Do the institutions have sufficient legal authority ers available and how they are exercised are crucial. c c o

to conduct meaningful scrutiny of both institu- Here it is important to draw distinctions between pow- u n t

tions and practices? Are they limited in practice in ers that are provided in law and those exercised in prac- a b i

the information that they receive or the people tice. Three dimensions are of importance here: (1) access l i t they can interview? in practice to documents and people; (2) the capacity to y i • How independent are the institutions involved and scrutinize bodies, to question responsible parties and to n a n

what is the likelihood of their being co-opted? anticipate detailed and accurate responses from them; d f • Does the organizational culture of an institution and (3) the process, timing, substance and independence o r

limit its capacity to scrutinize effectively? of the reporting procedures. N a t i

• Are the institutions limited to scrutinizing one In this paper, we will also show that bodies such as o n a

organization or several? Parliament have considerable powers in law to access l S

• Are they interested in both propriety and efficacy? people, papers and records, but do not necessarily exer- e c u

• To whom do they report, and are their reports dis- cise these fully in practice. Similarly, we demonstrate r i t y

tributed in a timely fashion? that offices such as that of the inspector general of the , b

• Can they make those with executive responsibility Canadian Security Intelligence Service (CSIS), while y R

account for their actions? Is the government having legal authority to see particular records, do not e g

obliged to respond to their reports within a set necessarily always have access to the people who con- W h i

time frame? trol them, and thus cannot question the individuals t a k

• Can they effect change, and if so, how? For exam- responsible for those records. We will also point to the e r

ple, are their recommendations binding? fact that the capacity to question those ultimately a n • Is there any institution or process that ensures all responsible for the control and management of an d S t the various accountability components are doing organization, which is fundamental to the process of u a r their respective jobs effectively? accountability, differs considerably. For example, t F a r s 3 o n IRPP Choices, Vol. 15, no. 9, September 2009 accountability operating internally:henceourdistinctionbetween modes ofscrutinyandaccountabilitythanonthose example, thereismuchgreateremphasisonexternal matters arecoveredmorebroadlythanothers.For mendations. key findingsfollows,alongwithourpolicyrecom- evolving butunfinishedprocess.Asummaryofthe a attention onthe workingsofindividualagencies emphasis isitself problematic,asittends to focus roles ofthePCOitself.We acknowledge thatthis Council Office(PCO)orthe coordinating andpolicy International AssessmentStaff (IAS)inthePrivy tion thanthoseofanalytical bodiessuchasthe Canadian MountedPolice (RCMP)garnermoreatten- light. Thus,therolesofCSISandRoyal than onthosethathaveremainedoutofthespot- intelligence practicesthathavebeencontroversial Similarly, greateremphasisfallsonorganizationsand more visibleandbetterpublicizedthaninternalones. son forthisshouldbeobvious.Externalprocessesare developed inCanada.W indicate howandwhenaccountabilityprocedures The analysisthenadoptsahistoricalapproachto disclosure thatmayimpedeorenhancethepractice. cussing intheprocesssuchproblemsassecrecyand evaluation oftheconceptaccountabilityitself,dis- national security. they maypubliclydiscloseforlegitimatereasonsof access, oftenareconstrainedastothedetailsofwhat while officialbodies,withrelativelyunrestricted access, sufferfewlimitationsonwhattheyreport, ing bodiesisimportant.Themedia,withrestricted to doso.Heretheactualindependenceofreport- times —aswiththeAirIndiabombinghavefailed report onimportantissuesinatimelyfashion,some- such asSIRC,whilehavingthelegalobligationto such eventualities.We willalsoindicatethatbodies organizational cultureofferusefulexplanationsfor parliamentarians maybebettersuited.Processesand priate policyquestions,arguablyamatterforwhich t missions ofinquirymaydoabetterjobinthisregard, b question witnessesadequatelywhentheyappear the proceduresthattheyfollow, frequentlyfailsto structure, theresourcesthatcommitteescommandand P hey sometimesfailtoexplorecriticallyalltheappro- efore itscommittees(Savoie2008b, 302).Whilecom- arliament, largelybecauseofitscommitteesystem view toshowingthataccountabilityconstitutesan W The approachwetake inthispaperbeginswithan e should noteattheoutset,however, thatsome in and for e national security identify threeperiodswith . The rea - issues oftheirjournals, become interestedinthefield,somedevotingspecial other disciplines.Morerecently, thinktankshavealso are themostactivebutparticipantsalsocomefrom scientists, historians,legalscholarsandcriminologists dreds ofarticlesandbooksnowavailable.Political Security andIntelligenceStudiesin1985,withhun- establishment oftheCanadianAssociationfor been vibrantandgrowing,particularlysincethe nity (Campbell2009).Theacademiccommunityhas aspects ofCanada’ssecurityandintelligencecommu- tive books—somegroundbreakingonvarious nalists havebeenresponsiblefornumerousinforma- In additiontotheirmediareportage,individualjour- significant partanddeservesseparateconsideration. any discreteway. Eachoftheseentitieshasplayeda o think tanksinmakingsecurityandintelligence c questions ofoverallefficacyareatstake. as awhole,particularlyimportantdimensionwhen r protecting national securitythatmaynot always be accountability proceduresfor agenciestask one hand,specialrulesmust applywhenconsidering mental accountabilityinliberal democracies.Onthe particular casewithinthewider questionofgovern- text ofnationalsecurityhastobeunderstoodasa look public areregularlytak zational structureinwhichdecisionsaffectingthe nance intheprivatesectorandindeedtoanyorgani power, butmayalsobeappliedtocorporategover- ment andthecontrolofpoliticaladministrative Accountability hasparticularreferencetogovern- but fornowthisbroaddefinitionwillsuffice. some ofthecomplexdimensionsthisconceptlater, (Schedler 1999,13-28).We willattempttoexplore and, inthecaseofmisconduct,tosuffersanction decisions, tojustifythemasappropriateandproper A The ConceptofAccountability reports (Cooper200 ather thanthesecurityandintelligencecommunity uss theroleofmediaorthatacademicsand rganizations moretransparentandaccountablein We alsoacknowledge thatthispaperdoesnotdis- It istheconsensusofmanyobserverswhohave ed intothisissuethataccountabilityinthecon- inform BaboutA’s actions(orinactions)and A ccountability maybedefinedinbroadterms: is accountabletoBwhenAobliged 4 7). 2 en. others providingspecial ed with - applied to many other agencies of government. In for new procedures of accountability that would both particular, there are special constraints on disclosure enhance the capacity of the legislative branch to keep a of information and limitations on the degree of trans- check on the executive and, to an important extent, parency of operations that can be permitted. On the establish more direct lines of accountability between other hand, special protections against the misuse of the executive and the public. This process has acceler- the intrusive and coercive capacities that security and ated since the 1960s, with populist campaigns emerg- intelligence agencies have at their disposal deserve ing from both the right and the left of the political particular attention. Accountability procedures for spectrum that have sought new ways to democratize national security must be uniquely designed for this the political system. Sometimes this has taken the form specific purpose, and may not necessarily serve as of attempting to transform political parties into more models for wider accountability requirements. responsive instruments of popular will, attempts that have foundered on the realities of pluralistic trade-offs Accountability as democratic buzzword and compromises characteristic of democratic politics. However distinct the policy issues may be, it cannot More often, it has taken the form of new or improved be mere coincidence that demands for greater institutional mechanisms to audit the actions of gov- accountability in national security have grown in ernment. Thus, an institution such as the Office of the recent years in parallel with the broader popularity of Auditor General (OAG), which reports to Parliament on accountability as a democratic standard. Although the operations of the executive, has developed, espe- there have always been specific national security cially under the current auditor general, Sheila Fraser, a issues and concerns that have driven the process of popular following as a kind of tribune of the people designing or improving accountability systems in this uncovering waste and malfeasance in government. The area, the broader context has informed and coloured same could be said for special commissions of inquiry public expectations, perhaps not always realistically. set up to investigate scandals. The televised Gomery Accountability has in recent years become a popu- Commission hearings, for example, developed a sur- lar buzzword in liberal democracies, as an aspect of prisingly large and attentive audience in Quebec for campaigns to democratize the political process. Like hearings probing corruption and kickbacks in the spon- most buzzwords enjoying a popular vogue, the idea sorship program. bears an unmistakable general thrust but lacks a con- In the 2004 and 2006 national elections, accounta- A

sensus on a precise definition. bility, or lack thereof, was a leading campaign issue. c c o

For many, the term implies simply an enhanced The Liberal government of Paul Martin was battered by u n t

level of transparency in government. Elected office- charges of corruption and cover-up and an alleged a b i holders and appointed officials should be held “culture of entitlement.” The Conservatives came into l i t answerable to voters and taxpayers for their actions office pledging to clean up government and make it y i and their expenditure of tax dollars. When things go more accountable. The new government, following a n a n wrong, or are suspected of going wrong, there ought, campaign promise, enacted the Federal Accountability d f it is widely believed, to be means available to check Act as one of its leading priorities.3 This legislation o r the process, identify problems, assign blame if exemplifies the somewhat fuzzy meaning of accounta- N a t i required and initiate corrective action. Authorities, it bility; despite its name, the Act does not define the o n a

is argued, should not have an untrammelled right to concept, and includes within its scope several measures l S hide behind a cloak of official secrecy when the pub- that have little apparent connection to accountability, e c

4 u lic interest is at stake. as such. It is as if the term accountability has such a r i t y

In one sense, the demand for greater accountabili- good ring to it that it was deemed the most appropriate , b ty is an extension of a democratization process begun label for an omnibus administrative reform bill. y R long ago. In the nineteenth century, Canada’s consti- Ironically, some well-informed experts have been e g tutional democratization process was driven by the arguing that in practice accountability has actually been W h i struggle for responsible government, which meant deteriorating in the face of the growing power of the t a k requiring the executive to maintain the confidence of Prime Minister and cabinet, despite the popular e r the elected legislature. By the latter half of the twen- rhetoric.5 In any event, there is little clear agreement on a n tieth century, rising dissatisfaction with the limita- what accountability should actually mean, what practi- d S t tions of legislative control of an increasingly large cal measures will best improve it or even what the u a r and complex administrative apparatus led to searches strategic intention of particular specific mechanisms t F a r s 5 o n IRPP Choices, Vol. 15, no. 9, September 2009 thus informscontrol. zation —allinthenameofgreateraccountability. have becomealmostparalyzedwithover-bureaucrati- morale ofpublicservants.Legitimategrantprograms damaging impactongovernmentalefficiencyandthe Federal Accountability Act service. Together withsomeoftheprovisions series ofnewcontrolsandconstraintsonthepublic government, inafailedpre-emptivestrike, enacteda public revelationsofthesponsorshipaffair, theMartin A “Who willwatch thewatchers?” accountability proceduresshould rememberthequestion of accountabilityinpractice. Anyone designingnew 72-3). Thisisnotinevitable,but itisafrequentoutcome co-opted bytheagenciesthey review(Johnson2005, external reviewbodiesaresometimessaidtohavebeen image ofthemselvesviatheirreviewers. activities, organizationscancommunicateafavourable ly managingthepresentationofinformationabouttheir persons ororganizationsheldaccountable.Byeffective- accountability importantlyofferslegitimacytothose account, whetherbycontrolorcooperation.But relationship ofpowerorinfluenceoverthoseheldto effected internally ing changesinorganizationalproceduresthatarethen by anindependentbodysuchastheO ing exampleistheexternalauditfunction,performed for explanationshouldideallyworktogether. Awork- audits itsperformance.A organization withanexternalbodythatreviewsor process moreofteninvolvesthecooperationofan power structure.A cised mostoftenwithinorganizationsinahierarchical 5 may becontrollingand/orexplanatory clear distinctionsthatcanbemade.Accountability more analyticallyandstrategically. Therearesome strategies. Thus,thereisaneedtoexaminetheconcept objectives; theseobjectivescanbemetbydifferent Accountability processescanservequitedifferent Accountabilities ures. Thecontroversythatledtothe p appreciation oftheoftenunanticipatedandsometimes ing greateraccountability. Furthermore,thereislittle might constituteappropriatemechanismsforachiev- s hould be.Noristhereaclearconsensusonwhat 1-65). Accountability asacontrolmechanismisexer- erverse consequencesofnewaccountabilitymeas- ccountability Act Examining accountability fromtheperspective of Processes ofaccountabilitymightseemtoimplya . ccountability asanexplanatory Scrutiny leadstoexplanationand o ffers oneexample:followingthe 7 ccountabilities forcontroland , these measureshavehada Federal AG, recommend- 8 (Marshall 1978, As aresult, 6 • accountability systemsmaybesummarizedasfollows. see themostprogress”(2003,179). bining andbalancingallthreethatwearelik in accountability perspectiveispartial,incomplete,and by organizations.Heconcludesthat“any single especially whenallthreearepursuedsimultaneously of accountabilityhidestensionsandcontradictions, improvement. Goodcautionsthateachoftheseforms formance becomesthestimulusforpromoting learning meanswaysbywhichtheassessmentofper- legitimacy, discussedabove).Accountability for ly andethically(thisisclosetotheacquisitionof authority andtaxdollarshavebeenusedappropriate- assurance toParliament andcitizensthatpublic on theotherhand,isconcernedaboutproviding diture ofpublicfunds.Accountability forassurance, insisting uponadministrativeefficiencyintheexpen- abuse andmisuseofpublicauthorityaswell f accountability forcontrol,thereisalso 1 accountability fromtheinside,asitwere(Good2003, tration, DavidA.Good,citesthreewaysoflookingat Ottawa publicservantandstudentofadminis- i Accountability • • • mproving governmentperformance,aformersenior or assuranceandaccountabilityforlearning 66-73; AucoinandHeintzman2000,43-53).Besides competition withtheothers.Itisbyskilfullycom Accountability Another seriesofquestionstobeask Accountability forcontrolmeanscontrollingthe For example,is theagencyheadheldeffectively “of what,”but inpracticeitisadistinctquestion. At firstglance,thismaylook like anothertake on for learning. nation, someforcontrol,assurance, sites towhichtheagencyanswers,someforexpla- response. Theremaybeadiffusesetofofficesor ly simplequestionmaynothavea To whomistheagencyanswerable?Thisapparent- Accountability answerable for? accountable for;whatpreciselyistheagency What partofanagency’smandateisitheld legitimation. but thesemayrequireunusual transparencyfor The mosteffectivemeansofcontrolareinternal, cious ofinternalreviewaslackingtransparency combination. Publicperceptiontendstobesuspi- may beaninternalorexternalprocess,some Who actuallycarriesouttherevieworaudit?It Accountability 6 of whom by whom to for what whom ? ? ? ? ed about . ely to . - responsible and answerable for shortcomings strengthened procedures for administrative accounta- found by auditors or reviewers, or is responsibility bility may have the effect, intended or unintended, of more diffusely spread through the organization? effectively reducing ministerial responsibility and thus • Accountability when? ministerial control. Thus, paradoxically, while statutory The question of timing may have very real conse- measures such as those making the director of CSIS quences. From the point of view of an operational responsible for the “management and control of the agency, accountability in the form of oversight service under the direction of the Minister” may have over ongoing business is different from ex post originally been intended to enhance the accountability facto review or audit. Yet even the latter may have of the civil service to the minister, they may in the long operational consequences if officials alter their run have made the minister less answerable to behaviour in expectation of the later findings of Parliament for aspects of the service’s functions. external review. There is also the issue of the role of Parliament, qua A central ambiguity in the institutionalization of Parliament, in relation to ensuring the responsibility of accountability lies in its constitutional role in ministers and the accountability of the government in Westminster governmental systems, particularly with and to Parliament. In the case of the sponsorship affair, regard to Parliament. At issue here is the continued the Public Accounts Committee of the House (chaired interplay between two crucially important constitu- by an opposition MP) held well-publicized hearings in tional conventions: accountability and ministerial parallel with the hearings of the Gomery Commission. responsibility. This has left an important problem In the case of the Mulroney/Schreiber affair, the House unresolved, a potential conflict between ministerial Committee on Access to Information, Privacy and responsibility and the accountability of appointed Ethics (also chaired by an opposition member) called officials, which begs the question: Who is ultimately the two key witnesses to testify, before the special answerable? Historically, ministers of the Crown were adviser appointed by the Prime Minister made his rec- considered to have a unique and the sole legal and ommendation to the government on the terms of refer- political responsibility for an accounting to ence for a public inquiry. While Parliament is clearly Parliament of all the actions and inactions of the per- within its rights and privileges to hold such hearings, sonnel within their respective portfolios. However, as any recommendations or findings it may make, in these the complexity and size of government have grown or similar circumstances, rest in ambiguous relation to A

in recent decades, so has the reluctance of ministers those of the findings of a public inquiry, especially c c o

to take full responsibility for actions of their depart- when the Canadian Parliament has no say — as is the u n t

ments and officials, or at least to take responsibility case in some jurisdictions — regarding the terms of ref- a b i to the extent of resignation in recognition of serious erence of commissions of inquiry. The role of l i t error. At the same time, governments have attempted Parliament in accountability or responsibility in rela- y i to distinguish between matters of ministerial and tion to the executive is an unresolved problem at the n a n bureaucratic responsibility. Initially, a division was heart of the Westminster system. At its heart is a con- d f drawn between issues of policy and those of adminis- flict in the roles parliamentarians perform. On the one o r tration; this was at best a divide that sometimes hand, they are expected to follow party interests, N a t i lacked clarity. More recently, however, there have attacking or defending the government according to o n a

been efforts to draw a distinction between accounta- the side of the House on which they sit. On the other, l S bility and answerability — the latter encompassing all parliamentarians have an obligation to pursue par- e c u the role and responsibilities of senior bureaucrats — liamentary interests on behalf of all Canadians by scru- r i t y

and to provide for designated persons as departmen- tinizing the activities of the executive branch, ,

9 b tal accounting officers. Such persons now have a particularly concerning the expenditure of public funds y R legal obligation under the Federal Accountability Act and compliance with law and policy generally. e g to appear before parliamentary committees to answer In short, despite the popular currency of the idea of W h i questions on management practices, changing signif- accountability, there is no clear and unique definition t a k icantly in the process the relationship between senior of accountability that attracts a broad consensus, and e r bureaucrats and Parliament. While there may be some no single form of accountability that obviously answers a n justification for a diminished level of direct ministeri- to the contemporary democratic demand. Perhaps it d S t al responsibility for all the activities of very large and would be better to think of many accountabilities, u a r complex organizations, there has to be concern that operating in parallel beside one another, each t F a r s 7 o n IRPP Choices, Vol. 15, no. 9, September 2009 while disclosureistheex environment, buttheresultisthatsecrecyrule, their respectiverolesinacompetitivedemocratic ty. Governmentandoppositionareonlyfulfilling mation inwaysthatenhancetheirpoliticalcredibili- political riskbymanagingthepresentationofinfor- ernments oftentrytominimizetheirexposure opposition asthesourceofcriticism.Inpractice,gov- process. Informationaboutgovernmentisusedbythe competitive andpartisannatureoftheparliamentary meated governmentoperationsinCanada”(2003,44). Canada...Secrecy andconfidentialityhavealsoper- that “thingsarenotmuchdifferentin Canadian politicalscientistDonaldSavoiecomments the mostsacred”(Hennessy1990,345-6).The together rambling structureofcentralgovernment “secrecy isthebondingmaterialwhichholds virtue anddominantcharacteristic.”Hesuggeststhat ment, administrativesecrecyis“Whitehall’scardinal A characteristic ofallbureaucracy(W Max Weber, wrotethatahighdegreeofsecrecyis must workwithincertainlimitsontransparency. which maybedesirableinthepublicinterest,and bility mustrespectthelegitimategroundsforsecrecy, reasons andcover-ups.Bythesametoken, accounta- It isthejobofauditorsandreviewerstoexposebad are bothgoodandbadreasonsadvancedforsecrecy. rations iskept securelyoutofthepubliceye.There doors, justasmuchofthebusinessprivatecorpo- government necessarilytakes placebehindclosed parent tothepubliceye.Muchofbusiness istration israrelypublic,inthesenseofbeingtrans- hand. Yet eveninaliberaldemocracy, publicadmin- Accountability andtransparencyseemtogohandin Secrecy andaccountability i design, therelativetractabilityofissuesonwhich ing betterorworsedependingonitscontext, transparency anddemocraticcontrol,eachperform- a managed, asthecasemaybe. of thoseperformingthetask. ministers tospeak theirmindsfreely remain strictly confidential,thusallowing individual system ofgovernmentthatcabinet deliberations t nswering todifferentaspectsofthequestions ccording toaleadingobserverofBritishgovern- is broughttobear, andtheorganizationalcultures One oftherationalesforsecrecyishighly The firstsociologistofbureaucraticorganization, It hasalwaysbeenaprinciple oftheW ...Of alltherulesofgovernment,secrecyis ception, eitherforcedor eber 197 . As aresult, estminster 0, 233-4). Y employed tocoverupincompetenceorwrongdoing. Accountability failswhensecrecyisdeliberately accountable areinpersistenttensionwitheachother. relative transparencyinholdinggovernments tive requirementsofconfidentialityandtheneedfor where accountabilityisinquestion.Theadministra- issues ofcontroversy. Thisisespeciallythecase acceptable degreesandlimitsofsecrecyareoften ulatory instrumentsfortheprivatesector. ration ofbothbudgetswithtaximplicationsandreg- strict requirementsforsecrecysurroundingtheprepa- advantage from“insideinformation.”Thus,thereare lest privateinterestsgainfinancialorcompetitive greater theneedtomaintainsecrecyaboutitsplans, operations penetrateandinfluencesociety, the T sons formaintainingformsofadministrativesecrecy. to cabinetbytheseniorpublicservice, minutes anddecisionsbutalsodocumentssubmitted “ al securityare relatively high,butitisacomplex task where, publicexpectations ofaccountability innation- secrecy isjealouslyguarded. Basedonexperienceelse- the securityapparatus,andthis privilegedaccessto public buttootherservants whoarenotpartof security operationsareoften opaquenotjusttothe only sparingly, nottospeakofgrudgingly.National eral operationalrule,towhichex inappropriate inacontextwhichsecrecyisthegen- ordinary formsofpublicadministrationareusually government operations.Mechanismsappropriateto exceed therequirementsforsecrecyinotherareas of special andnecessaryrequirementsforsecrecythat Canada’s securityandintelligencecommunityhave and practices.Thevariousorganizationsmakingup accountability isappliedtonationalsecurityissues The secrecy/transparencyproblemismagnifiedwhen security Problems ofaccountabilityinnational parency, whichiseasiersaidthandone. negotiate adelicatepathbetweensecrecyandtrans required. Successfulaccountabilityproceduresmust sure, especiallywherepoliticalsanctionsarenot bility systemsnecessarilyrequirefullpublicdisclo unworkable. Itshouldbenotedthatnotallaccounta- a y from the cabinet confidences,”whichincludenotonly he largergovernmenthasbecome,themoreits ears. et anaccountabilitymechanismthatfailstorespect legitimate orpracticalreasonforsecrecywillbe Secrecy ingovernmentmaybeinevitable,butthe 11 O Access toInformationAct f course, therearealsolegalandethicalrea- 8 ceptions areallowed for atleast20 10 are excluded - - to devise, deliver and administer appropriate mecha- Secrecy of investigative methods and tradecraft nisms that do not undermine the requisite opacity Equally important to national security agencies is the pro- within which national security agencies operate. It is tection of information about their methods of investiga- nonetheless the case that the specific requirements for tion, including technical means of intrusive surveillance. secrecy must be taken fully into account in designing Since the targets of security surveillance and criminal any accountability system in this area. We can look at investigations constitute covert or concealed threats to the these specific requirements in turn. security of Canada, the methods used to identify and assess these threats and initiate criminal prosecutions Secrecy of sources must necessarily be protected from disclosure, because The police, the military and intelligence agencies any such information could assist those targeted to evade have always relied upon human sources of intelli- detection. Investigative methods may encompass a wide gence. They have been adamant that the identities of range of matters, from targeting to budgeting of resources, their sources, and the identities of agents operating from operational technology to the “tradecraft” of the under cover, must be fully protected from public dis- agency’s operatives (the accumulated experience and cul- closure. The ironclad promise of anonymity of ture of how they go about their business). sources is crucial to recruitment and retention: what- As with human sources, investigative methods are ever the motive for cooperating (which may range protected against disclosure under the Access to from idealism to coercion to financial incentives, or Information Act and Privacy Act, and may also be mixtures thereof), potential human sources must be blocked from disclosure in court under the strength- assured that their double identities will never be ened evidence provisions of the Anti-terrorism Act. revealed. The moment the identity of a source is dis- closed, the usefulness of that source is terminated. In Secrecy of information received in confidence many cases, as with the penetration of violent organ- from abroad izations, the protection of the identity of a source A major reason for secrecy is the reliance by Canada’s may be literally a matter of life or death. Moreover, various national security agencies on information the disclosure of one source may jeopardize the abili- received in confidence from foreign governments and ty to recruit others. their agencies, or from international organizations. A The Canadian Security Intelligence Service Act significant proportion of the intelligence on which A

(CSIS Act) makes it a criminal offence punishable by Canada relies to assess threats to Canadian security c c o up to five years’ imprisonment for an official or for- results from intelligence exchanges and information u n t mer official to make an unauthorized disclosure of sharing with cooperating agencies in friendly countries. a b i the identity of “a confidential source of information l

Much of the intelligence that Canada receives is desig- i t or assistance” to CSIS or “any person who is or was nated as confidential and released only on the guaran- y i an employee engaged in covert operational activities n

tee that it will not be publicly revealed. In some cases, a

12 n of the Service.” The Access to Information Act con- the intelligence is accompanied by caveats limiting d f tains exemptions for information that “would reveal o

access to the recipient agency only; the latter is expect- r the identity of a confidential source of information” N ed to restrict circulation even to its allied agencies. a t i in criminal law enforcement investigations, or “any Canada, in turn, shares its intelligence with cooperating o n a record requested under this Act that contains infor- foreign agencies on the same basis of confidentiality. l S mation the disclosure of which could reasonably be Breaches of these arrangements could result in a break- e c

13 u expected to threaten the safety of individuals.” down of the networks of intelligence exchange, which r i t y

The disclosure of confidential sources has some- could seriously damage the effectiveness of security , b times been an issue when deciding whether to initiate and law enforcement cooperation in Canada and y R criminal prosecution in national security cases that e

abroad. Thus, Canadian agencies are insistent that con- g rest on the testimony of confidential sources.14 Part 3 fidentiality regarding all information received from W h i of the Anti-terrorism Act contains a number of allied and cooperating agencies must be protected from t a

15 k amendments to the Canada Evidence Act seeking to unauthorized disclosure. e r protect against the disclosure in open court of the a A number of legal guarantees against unauthorized n identities of sources in anti-terrorist cases.16 d disclosure of material received in confidence are S t u

embedded in various Canadian statutes, including the a r new Security of Information Act, and in evidentiary t F a r s 9 o n IRPP Choices, Vol. 15, no. 9, September 2009 thus providing aquintessentialenablingaspect of such “persons, papersandrecords”asthey choose, tees throughdelegation,with thecapacitytocallfor expressly providethetwohouses, andtheircommit House ofCommonsandasimilar OrderoftheSenate the al relations. be consideredinjurioustotheconductofinternation- p to hold mally subjecttojudicialreview, evenifitisnecessary what maybedisclosed.Disclosuredecisionsarenor- own casesindefiningwhatmustremainsecretand should beabletoact,ineffect,assolejudgestheir l Even ifthespecialcaseforsecrecyisgranted,itno Accountability anddisclosure Information Act not limitedinitsaccesstorecordsbythe specifically bindstheCrown.Thus,forexample,itis restricted initsactions,except bylegislationthat isnot senators arelimited,Parliament asabody available tootherdepartmentsandagencies.T rity haveprivilegedaccesstosecretsnotgenerally government, thosedirectlyinvolvedinnationalsecu ers versusoutsiders.Withintheex bar toexternalaccountability longer cantherequirementsofsecrecybetak require adjudicationbytheFederalCourt.Butno cies andthosebodiesreviewingtheiractivitiesmay Occasionally, disputesoverdisclosuresbetweenagen- dential materialascanbereasonablysummarized. publicly, withasmuchindicationconcerningconfi- need notdeterthemfromreportingtheirfindings some casesexplicitlyreferencedinpublic,butthis to informationthatcannotbedisclosed,orevenin of publicityandsecrecy. Reviewbodieshaveaccess national securitytypicallyoperatewithsomemixture reviewed incamera.Accountability proceduresfor and the“needtoknow”principlethatlimittrans are well-knownpracticesofcompartmentalization Even withinsecurityandintelligenceagencies,there parts oftheexecutive, theymaybelessaccountable. extent thattheycanwithholdinformationfromother from theoutside. need foraccountabilitywithingovernmentaswell siders. Thisisaproblemthatonlyaccentuatesthe parency ofoperationstocolleagues,letaloneout- onger consideredacceptablethatsecretagencies rocedures inCanadiancourtswhendisclosurecould It shouldbenotedthatwhileindividualMPsand Secrecy, moreover, isnotmerelyamatterofinsid- Privacy A ex parte ct . , proceedings, wheresecretmaterialis In fact,StandingOrder1 17 the Security ofInformationAct . ecutive branchof 08 ofthe A ccess to en asa o the or - - - exceptions tothisgeneralrule. make peopleavailable,therehavebeennotable with adisinclinationtoreleaseinformationor strate acertaindeferencetogovernmentwhenfaced m normally abletoexercise itsmajority. Whileforthe sibilities inasingle policingagencywasinappropriate. government accepted thatthiscombination ofrespon- of theRoyalCanadianMounted Police) in 1981, the (Commission ofInquiryconcerning CertainA the recommendationsof McDonald Commission not foolproof. to remainprivate,P provided duringincamerahearings,whichismeant the House.Withregardtoreleaseofinformation leaks ofcommitteereportsbeforetheyweretabledin ularly good.Therehave,forexample,beennumerous keeping itsowndocumentsconfidentialisnotpartic- information astheyseefit.Parliament’s recordfor from thecurrentConservativegovernment. used itspowerstoforcethedisclosureofinformation Order 108. NorhastheLiberalmajorityinSenate part ofgovernmenttothwarttheintentStanding place since2004—thereisnosuchcapacityonthe that inminorityParliaments —suchashavebeenin c sonnel havetendedtobemadeavailableatthedis- practice, however, governmentdocumentsandper- ply areliabletobeheldincontemptofParliament. In p tions weretheresponsibility of theRCMP assessments andnationalsecuritycriminalinvestiga- tions maybeundertaken. where criminalinvestigationsandprosecu- also posealawenforcementproblem,particularly extraordinary powerstodoso.Butsecuritythreats sometimes employingintrusivesurveillanceandother agencies collectinformationandassesssuchthreats, promoting thenationalinterest.Nationalsecurity the responsibilityformaintainingpublicsafetyand intelligence problemtogovernmentschargedwith accountability. Threatstonationalsecurityposean national securitymattersisnottheonlybarrierto The needtomaintainhighlevelsofsecrecyin National securityandlawenforcement gence officials. potentially amatterofgenuineconcernforintelli information becomingpublicthroughP retion ofthegovernmentbecauseexecutive is olitical accountability. Individualswhofailtocom- ost partparliamentarianshavetendedtodemon- Once inParliament, membersarefreetousesuch In Canada,before1984,bothsecurityintelligence 10 19 Thus, thepossibilityofsensitive arliament’s recordisbetter, but 18 It shouldbenoted arliament is . Following ctivities - Consequently in 1984, Parliament passed the Canadian lap but are analytically distinct. Both are essential for Security Intelligence Service Act, creating CSIS as a developing and maintaining public trust in government service without police powers, along with the Security and its institutions. Both are processes that are still Offences Act,20 which specifies law enforcement evolving in meaning and in practice, and each has dif- responsibilities for the RCMP regarding national secu- ferent historical origins. rity offences. This institutional division of roles for Accountability had its origins as a constitutional national security is one that has long been practised in convention in Westminster systems of government the United Kingdom, where the Security Service, (where the executive and the legislature are fused). It is known as MI-5, is separated from the various Special directly related to another constitutional convention Branches of UK police forces, which alone have law covering the notion of ministerial responsibility. In this enforcement responsibilities. However, in the United sense, it relates to the obligation of ministers to account States, the Federal Bureau of Investigation (FBI) still for the actions and inactions of the departments and combines both security intelligence and national secu- agencies within their respective portfolios in and to rity law enforcement within the same agency. Parliament. The responsibility is both a political one and Whatever the institutional arrangement, the dis- a legal one. Parliament has certain powers and privi- tinction between security intelligence and law leges it can use to ensure that this accounting occurs.21 enforcement is important in determining appropriate As already indicated, accountability has more mechanisms of accountability. In regard to law recently taken on broader meanings. These imply that enforcement, Canada retains the well-known princi- government actions should be as transparent as possi- ple of police independence, requiring an arm’s-length ble and that there should be public input into the poli- relationship between external political control and cy process. Thus, the process of accountability may decisions to initiate and/or to halt criminal investiga- encompass measures that are practised by the formal tions, as well as to prosecute. This has been widely arms of government as well as by other elements of accepted as a necessary safeguard against a govern- civil society (academic writers, the media, think-tank ment that might abuse its law enforcement powers by researchers, nongovernmental organizations). Many of arbitrarily directing them at its opponents. these conceptual frameworks and practices have been In regard to security intelligence, direct political developed in the US. control — as opposed to accountability — of agencies The notion of oversight had its origins in the US. A

engaged in sensitive national security threat assess- There it refers to the scrutiny of the executive branch c c o

ments is generally regarded as not only desirable but of government by the legislative and judicial branches. u n t

necessary. In the absence of such control in the form In the congressional sense, oversight takes many forms a b i of ministerial responsibility, security intelligence and serves several different objectives: appropriation, l i t agencies with their extraordinary and intrusive pow- authorization, scrutiny of legislation, fact-finding, y i ers might be seen as a potentially unchecked threat review of governmental practice and the evaluation of n a n not only to the rights and liberties of citizens, but best practices. d f even to the elected government of the day. Oversight has often been misconstrued outside the o r

Where the two functions overlap, especially when US as necessarily involving control over agencies, N a t i they overlap within the same agency, there is inevitable departments and government practices (Public Safety o n a

tension between the need for an arm’s-length relation- Canada 2004). Oversight sometimes applies controls, l S ship and the need for direct control. In the early 1980s, but this is not necessarily always the case. This has led e c u

Parliament prescribed different accountability proce- to arguments (particularly in Westminster systems) that r i t y

dures for CSIS and the RCMP, reflecting their different favour after-the-fact reviews rather than scrutiny dur- , b roles and the different principles of governance sur- ing or before the fact. It should be noted that the y R rounding these roles. The overlap of functions must be scrutiny of government departments, agencies and pro- e g fully taken into account in devising an effective grams for performance and capability necessarily W h i accountability system for a law enforcement agency demands some degree of before-the-fact scrutiny (Light t a k involved with national security issues. 1993, 14). e r

Twenty-five years ago the term oversight was seldom a n used outside the US. When it was employed to refer to d

Accountability and oversight S t Accountability is sometimes viewed in conjunction other governmental systems, critics referred to it as u a r with or in contrast to oversight. These concepts over- belonging to the congressional system and not applica- t F a r s 11 o n IRPP Choices, Vol. 15, no. 9, September 2009 gressional system.Suchusage, lik ing thoseoftheWestminster model,notjustthecon- across afullrangeofgovernmentalsystems,includ responsible fortheagenciesandstructuresinvolved. and influencetheycanexert onthoseactually they haveavailablebutalsointhedegreeofcontrol vary considerablynotonlyinthepowersandaccess rant applications.Thesebodies,itshouldbenoted, before thecourtsandinauthorizingorrejectingwar- the judicialbranchbothinhearingcasesbrought report directlytoCongress,andtheroleperformedby Office andtheCongressionalResearchService,which staffed bodiessuchastheGovernmentA congressional committeesaswellfundedand the president.To thesemustbeaddedthevarious various advisorybodiesthataredirectlyavailableto individual departmentsandagenciesaswellthe by Within theadministrationsuchscrutinyisprovided representing allthreebranchesofgovernment. practised byavarietyofgovernmentorganizations, scrutiny ofgovernmentaction. prefer toperceiveoversightinlessdramatictermsas gence areacaseinpoint.Thus,congressionalexperts bilities ofthepermanentselectcommitteesonintelli- But, equally, inothersitdoesnotdoso.Theresponsi- legislate, andthroughitsabilitytotightenfunding. controls throughitsmoreindependentcapacityto such activitiesdoleadCongresstoimposecertain oversight servesmanyfunctions.Insomeinstances, with theconceptofaccountability, congressional Congress (Aberbach1990,217-9). Aswehaveshown a do notnecessarilyagreethatoversightalwaysimplies tant respects. premises deserveacriticalexaminationinthreeimpor- o in recenttimes—albeitmodifiedformbutwith- t The otherwasthatoversightnecessarilyimpliedacon- to Canada.Onewasthenotionofafter-the-factreview. Two argumentsbuttressedthispositionwhenapplied b in thissensethatwewould employ ithere.W experts, seldomimpliesmore thanscrutiny, anditis may issueand hencetotheaccountsthat those polit bodies isanecessary precursortothereports they also arguethatscrutinybysuch reviewandoversight rolling function.Suchargumentshavebeenrepeated le elsewhere,particularlytotheWestminster model. ut solidsubstantiation.Consequently, theirbasic controlling functionongovernmentalpracticeby Third, thetermoversightisnowwidelyused Second, scrutinyofgovernmentactionisnow First, Americancongressionalexpertsthemselves various inspectorsgeneralwhoformpartofthe e that ofAmerican ccountability e would - - ment actions. on thebreadthofone’scapacitytoscrutinizegovern- ask. To knowwhattoask,inmanyrespects,depends misleading orobfuscating.You havetoknowwhat may notbesufficientlydetailed,andeven of itselfmake somethingtransparent.Theaccount an obligationtoprovideaccountdoesnotinand tinent questions.Themerefactthattheexecutive has ultimately dependsonhavingthecapacitytoaskper- ent. Theprocessofmakingsomethingtransparent by whichbodiesarescrutinizedandmadetranspar- sight, asopposedto This burdendoessuggestagreateremphasisonover- burden onthoseattemptingtorestorepublictrust. ures andtheirpoliticalconsequencesimposeaheavy age tothe“intelligencebrand.”Theseintelligencefail- intelligence overtheIraqW cial hasstatedconfidentiallythatthepoliticizationof a policy decisionnowwidelyunderstoodasconstituting to justifytheunsanctionedinvasionofIraqin2003,a intelligence bytheAmericanandBritishgovernments 9/11 attacks,butalsobythemisuseandabuseof shaken bythefailuretoanticipateandprevent the intelligencecapacityofgovernmentshasbeen heightened threatsareuptothetask.Publictrustin mental organizationschargedwithdealingthe under thecircumstances,butalsothatgovern infringements onrightsandlibertiesarewarranted the governmentalanalysisisaccurate,andthat threat levels,thepublicneedstobelievenotonlythat procedures arenecessarytocombatnewheightened for individualrightsandlibertiesinsistthatthese procedures thathaveseriouspotentialconsequences public trust.Whengovernmentsimposenewsecurity I processes bywhichgovernmentactionisscrutinized. r nity mayeventuallyhavetoprovide. management ofthesecurityandintelligencecommu- i imposing undue burdensonmanagement. Similarly oversight may inpracticedetractfromefficiency by security maybeone—greater levelsofreviewand ment. Incertainareasofgovernment —national for moreeffectiveandefficient processesofgovern- Normally concerns theissuesofunintendedconsequences. cally andlegallyresponsibleforthecontrol t acies (oldandnew)toencompassthevarious major fiasco.OneseniorCanadianintelligenceoffi- is nowoftenusedtoencapsulatetheentireprocess In theend,muchcomesdowntoquestionof The termoversightisnowusedbroadlyindemoc- Another importantdimensionofgoodgovernance , greater transparencyisthought tomak 12 22 ex postfacto ar hasdoneseriousdam review. - e - , more detailed accountability may lessen the effec- even though only about half of those named were ever tiveness of the agencies if aspects of tradecraft are subsequently convicted of espionage or related offences revealed. But while such dangers may be present, a in a court of law. In the aftermath of the Gouzenko cautionary note is nevertheless in order here. affair, following the recommendations of the royal Intelligence bureaucrats in the US have sometimes commission, the government of Canada constructed a sought to undermine accountability systems by argu- peacetime national security state (Whitaker and ing that additional scrutiny would lead to “micro- Marcuse 1994), with screening of public servants and management.” later of immigrants and citizenship applicants, and an extensive domestic surveillance operation by the RCMP Security Service that by the latter stages of the Cold Historical Map of National War had accumulated dossiers on some 800,000 indi- Security Accountability viduals and organizations (Commission of Inquiry Concerning Certain Activities of the Royal Canadian History to 1970 Mounted Police 1981, 1:518).24 ational security activities of the federal gov- Despite grounds for concern about the rights and ernment, and in some cases of provincial liberties of citizens in the face of this “political polic- N governments, have a long history going back ing” of Canadian civil society, and despite occasional to the early years of Confederation in the late nine- public protests, it is remarkable how slowly proposals teenth century. Perceived threats were posed by vio- were gathered for the establishment of mechanisms to lent Fenian Irish and Sikh groups before the First make the operations of the secret state more democrati- World War, by Communist and Bolshevik movements cally accountable. Until the late 1960s, Canadians by after the Russian Revolution in 1917 and by fascist and large appeared to accept that national security and Nazi movements in the 1930s. More controver- agencies should work in secret, unchecked by any sially, trade unions, students, citizens’ associations scrutiny outside the executive of the efficacy or propri- and advocacy groups were sometimes targeted by the ety of their operations. Debates over national security authorities as threats to Canadian security. In two during the two world wars and the early Cold War world wars, there were alarms about enemy “fifth years were relatively consensual and bipartisan. It was columnists” among immigrant communities; a num- only in the 1960s that the first serious stirrings of con- A

cern about a lack of accountability appeared. In 1965, c

ber of their members were identified and interned, c o

two security-related scandals burst into public view as u

their organizations were banned, and censorship was n t

partisan political issues. The firing of a sick and dying a

imposed on them. The most notorious case was the b i

Vancouver postal worker because he was suspected of l forcible relocation of the entire Japanese-Canadian i t being a Soviet spy caused a public outcry. Then the y population of the West Coast to camps in the interior i Gerda Munsinger affair implicated two cabinet minis- n (Adachi 1976), an act for which the Canadian govern- a n ment later apologized and provided some financial ters from the previous Progressive Conservative gov- d f 23 ernment in a relationship with a woman believed to o compensation. r have possible connections to Soviet espionage. Under N In 1945-46, the defection of the Soviet cipher clerk a t i

considerable pressure from Parliament and the press, o

Igor Gouzenko with documentary evidence of a n a

Soviet spy ring operating in Canada was an impor- Prime Minister Lester Pearson called two separate com- l S

missions of inquiry to investigate these affairs — the e tant incident in the emerging Cold War between the c u

Commission of Inquiry into Complaints made by r wartime allies (Knight 2005). A secret order-in-coun- i t y cil under the War Measures Act authorized the deten- George Victor Spencer and the Commission of Inquiry , b tion and interrogation of a number of suspects, into Matters Relating to One Gerda Munsinger, which y R

both reported in 1966 — and then followed these up e without benefit of legal counsel. The Taschereau- g

with the Royal Commission on Security, with a wider W

Kellock Commission took secret evidence and pub- h i

mandate to develop policy. The terms of reference for t lished a report (Royal Commission to Investigate the a k

this latter inquiry under M.W. Mackenzie were to e

Communication of Secret and Confidential r

“examine the operations of Canada’s security proce- a Information to Agents of a Foreign Power 1946) in n dures with a view to ascertaining, firstly, whether they d which some two dozen persons were named as S t were adequate for the protection of the state against u betraying their country on behalf of a foreign power, a r subversive action and, secondly, whether they suffi- t F a r s 13 o n IRPP Choices, Vol. 15, no. 9, September 2009 developing accountability a 1969, 109, 110, 105). ThestatusoftheSecurityServiceas enforcement powers”(RoyalCommissiononSecurity agency RCMP andreformedasa“newciviliannon-police mended thattheSecurityServicebedetachedfrom courts orthepublic.Significantly, Mackenzie recom- ence wasmadetoaccountabilityParliament, the accountability onlyinrelationtotheexecutive. Norefer- ate,” aclearindicationthatMackenzie considered of thePrimeMinisteranymatteritconsidersappropri- and wouldhavehad“authority todrawtheattention periodic reportsfromtheheadofSecurityService security clearance.Theboardwouldalsohavereceived vants, immigrantsandcitizenshipapplicantsdenied job wouldhavebeentohearappealsfrompublicser- government departmentoragency.” Theboard’smain by thegovernor-in-council,but“independentofany the SecurityService:aReviewBoardnominated mendation foraformalaccountabilitymechanism s was groundedinasomewhatuncriticalColdWar mind- the proprietyofsecurityoperations. dures” investigations whicharemadeunderexistingproce- c dynamic much further Commission carried thescandal-inquiry-reform The decadeandahalfthatfollowed theMackenzie McDonald tothe Crisis ofthe1970s and1980s:from ty forpropriety rity activitiesforcegovernmenttoconsideraccountabili- scandals andseriousfailuressurroundingnationalsecu- that hascontinueddowntotoday:usuallyonlypublic consideration ofchangedid,however, strike onenote change innationalsecuritypractice. and politicalpressureongovernmenttoforceanyradical It seemsthattherewasatthistimeinsufficientpublic inquiries thatmake policyreformrecommendations. Service, arecommendationthatMackenzie hadmade. Starnes asthefirstciviliandirectorofRCMPSecurity the time,althoughgovernmentdidappointJohn Neither recommendation,however system foranewbodywithoutlawenforcementpowers. ianization” oftheSecurityServicetoanaccountability Commission triedtoavoidthisproblembylinking“ regarding “policeindependence.”TheMack et, thecommissiondidmake thefirstofficialrecom- iently protecttherightsofprivateindividualsinany branch ofthepoliceforcewasseenasanobstacleto T he Mackenzie Commissionreportedin1969.Whileit 25 ...quite separatefromtheRCMP — in short,toascertainboththeefficacyand . The responseistoinitiatespecial CSIS Act CSIS , ultimately leading toamajor , in partduetoconcerns , was implementedat 27 ...without law This firsttentative enzie civil 26 - RCMP notauthorizedbylaw special commissionofinquiryintoactionsthe eral governmentwasforcedreluctantlytoappointa unlawful ifnotscandalousRCMPactivities,thefed and byaseriesofembarrassingmediarevelations and accountabilityofnationalsecurityoperations. rule oflawthatseemedtodemandstructuralreform powers raisedquestionsaboutdemocracyandthe activities ofCanadiansunconnectedtohostileforeign sive interventionby“secretpolice”inthepolitical most CanadiansopposedQuebecsecession,theintru at boththefederalandprovinciallevels. police laterledtoaseriesofcommissionsinquiry times illegalactionsbybothfederalandprovincial geted outsideQuebec.Excessive, invasiveandsome- independent ofCommunistinfluence,werealsotar- security. NewLeftandpeacemovements,mainly sented athreattonationalunity, butnottonational groups like theParti Québécoisthatmayhaverepre- terrorist groupsandlegitimate not alwaysmakingcleardistinctionsbetweenviolent in Quebecagainstsuspectedseparatists,unfortunately dented interventionbypoliceandsecurityauthorities on thestreetsofMontreal. ship ofthemediaandwhatamountedtomartiallaw and withoutcounselofnumeroussuspects,censor- “apprehended insurrection,”detentionwithoutcharge o Cold War Soviet“fifthcolumn”threattothetargeting refocusing ofdomesticsecurityawayfromtheold key differencefromtheearlierperiodwaspartial i new institutional architecturetoachievea greater In 1981, theMcDonald Commissionrecommended a McDonald Commission of nationalsecurity. islative andinstitutionalchanges tothegovernance missioners onthenecessityanddesirabilityofleg- unlawful activitiesandrecommendationsbythecom that trustrequiredafullinvestigationoftheextent dures governingitsactivities.”Themaintenanceof was “dependentontrustinthepoliciesandproce- support” fortheRCMP’snationalsecurityoperations for theMcDonaldCommissionnotedthat“public invocation ofthe libération duQuébecweremetbythepeacetime i lent Quebecseparatists.InOctober1970, hostagetak- nnovation innationalsecurityaccountability. The ng andpoliticalassassinationbytheFrontde f a Pushed byprovincial,especiallyQuebec,disquiet, Through the1970s, therefollowedanunprece- new internalmade-in-Canadathreatfromvio- 14 War Measures Act 29 . The termsofreference indépendantiste against an 28 Although - - - degree of accountability and control over the RCMP addition, an Advisory Council on Security and Security Service. This was achieved by balancing the Intelligence would assist the minister, cabinet and state’s obligation to preserve civil liberties with its duty Parliament in “assessing the legality, propriety, and to protect and enhance national security — a balance effectiveness” of the agency. Although lacking execu- captured in the title of the commission’s second report, tive powers, it would have an “investigating capacity,” Freedom and Security under the Law. Its most signifi- and report its findings to the minister, and as well sub- cant recommendation was to separate the Security mit annual reports to the parliamentary committee. Service from the RCMP and reconstitute it as a civilian There would also be a Security Appeals Tribunal to agency without law enforcement powers. In the consider appeals regarding security clearance decisions, changed political context of the time,30 McDonald’s with its advice provided to cabinet. civilianization proposal, unlike Mackenzie’s earlier such recommendation, was implemented with the pas- Judicial oversight and control sage of the Canadian Security Intelligence Service Act McDonald uncovered evidence that the RCMP had in 1984. The CSIS Act mandated several new account- extensively employed intrusive surveillance techniques ability procedures broadly inspired by McDonald, but (“wiretaps”) not authorized by law.31 The commissioners its provisions occasionally departed — in some cases recommended that applications for intrusive surveil- significantly — from McDonald’s recommendations. lance be submitted to a judge of the Federal Court for McDonald drew a clear distinction between specific approval. accountability as control and accountability as expla- nation, the former taking the form of internal gov- Parliament and public ernmental direction, the latter the form of external or Importantly, McDonald recommended that a joint par- independent review. Both were to be grounded in liamentary committee on security and intelligence statutory forms that would express the will of should be empowered to examine national security Parliament. The major elements of accountability for activities in camera and in secret. Although this would, the proposed new civilian agency were as follows to some degree, situate the parliamentarians “inside the (Farson 1991b, 155-85). loop,” McDonald saw this window as offering the opportunity for greater transparency. Ministers and Internal controls parliamentarians should “endeavour to provide the A

While overall security policy and priorities were the public with all information possible about the security c c o

responsibility of the cabinet, and while the “special” of Canada, the threats to it and steps taken to counter u n t

responsibilities of the prime minister in overseeing those threats.” A more informed public would be better a b i national security were recognized, McDonald affirmed able to understand national security issues l i t that the solicitor general should be the minister direct- (Commission of Inquiry concerning Certain Activities of y i ly responsible for the Security Service. The deputy the Royal Canadian Mounted Police 1981, 843). n a n solicitor general would be the minister’s deputy in Ironically, while this recommendation for a parlia- d f respect to all aspects of direction and control of the mentary committee would be ignored, Parliament actu- o r agency. McDonald insisted accountability must be ally played a key role in the implementation of the N a t i ensured by an effective system of communications, main thrust of the McDonald plan for national security o n a

within the agency and between the agency and the reform. Consequently, we now turn to a brief excursus l S deputy solicitor general, “to ensure that the Minister is on the role of Parliament in national security, a rather e c u informed of all those activities which raise questions of ambiguous if not convoluted story. r i t y

legality or propriety” (Commission of Inquiry , b

Concerning Certain Activities of the Royal Canadian Parliament in the Canadian Westminster system y R

Mounted Police 1981, 842). The commissioners also The British North America Act of 1867 passed on to the e g recommended an effective system of financial control Parliament of Canada all those powers, privileges and W h i by the Treasury Board and the auditor general. immunities that were enjoyed by the parliamentarians t a k

at Westminster, including the right to remake any law it e r

External review chose, and the stipulation that Parliament is not bound a n McDonald was concerned that a joint parliamentary by any law that does not specifically bind the Crown.32 d S t committee on security and intelligence should be able While the privileges and immunities are still today u a r to examine the activities of the agency in camera. In enjoyed by individual members of Canada’s Parliament, t F a r s 15 o n IRPP Choices, Vol. 15, no. 9, September 2009 with thatofothers.However discrete andeachcommittee’sremitdidnotoverlap long asdepartmentalresponsibilitieswereentirely governmental activitieswouldnormallyworkwellas vidual standingcommitteestomonitorandreview terms ofcommitteework.Theresponsibilityindi- of theex more andreflectedthedepartmentalstructure plexities, theorganizationofparliamentarybusiness become muchmorecomplex.T government hadexpandedconsiderablyand and tosanctionwrongdoing. people responsiblefortheiractions,toeffectreforms things publiclytransparentandtheirabilitytohold and programstendedtorun acrossthegamutofgov structure wouldprovelesseffectivewherepolicies from theex tigatory capacitiesandpowers,theirindependence These instrumentsvariedconsiderablyintheirinves commissions ofinquiry, eachwithvarioussubsets. and advisoryagencies,parliamentarycommittees and interdepartmentalstudies,taskforces,regulatory procedures. Amongthesetoolsweredepartmental scrutinize itspolicies,practicesandadministrative inquire into,review, make transparentandgenerally from whichgovernmentscouldchoosetoinvestigate, tence, Canadadevelopedavarietyofinstruments over governmentpoliciesandprograms. the threat,Parliament retainsameasureofcontrol Thus, bywithholdingsuchapproval,orevenraising continued withouttheformalconsentofParliament. Similarly, theexpenditureofpublicfundscannotbe is crucialtotheprocessofpoliticalaccountability. compliance andtherequirementtotestifyunderoath, the capacitytoholdindividualsincontemptfornon- powerful investigatorytoolthat,whenbackstoppedby when itsuseisonlythreatened,aninvaluableand 1 government action.ThepowerunderStandingOrder a it comestomakingthegovernmentofday to committees.Twoareofparticularimportancewhen individual members,andmustroutinelybedelegated t agency ernment andbeledcoordinated byacentral responsibilities crosseddepartmentalstructures and tuted onesuch areaofgovernment,where istration ofsecurityandintelligence mattersconsti- he powersrestwithParliament asawhole,notwith 08 tocallfor“persons,papersandrecords,”even ccount foritsactionsandtoeffectingcontrolover By themiddleoftwentiethcentury During thefirsthundredyearsorsoofitsexis- , such asthePrivyCouncilOffice. Theadmin- ecutive branchofgovernment,especiallyin ecutive branch,theircapacitytomake , the normalcommittee o meet suchnewcom , Canadian - - - sometimes depictedasparliamentary“surrogates.” of governmentactionwasaugmentedbyreviewbodies Scrutiny ofRegulations.Anditsworkasascrutinizer quently bytheJointCommitteeofParliament onthe the OfficeofPrivacyCommissioner—andsubse- tive branchandvariousindependentbodies—suchas ly scrutinized,bothbeforepromulgationbytheex enabling legislationwouldhavetobeevenmoreclose regulations developedasaconsequenceofsuch be struckdownforbeingunconstitutional.Similarly, lowed, certainlegislationadoptedbyP the federalspherethanhitherto.Inyearsthatfol Parliament nowfounditssupremacylessabsolutein asacentralpieceofthis document, Freedoms the entrenchmentofCharterRightsand when itpatriateditsconstitutionfromBritain.With becoming afull-fledged“constitutional democracy” plaints againsttheRCMP(Farson2000,225-58). rights, privacy, accesstoinformationandpubliccom- to considersuchmattersasofficiallanguages,human this endvariousombuds-like officeswereestablished public interestandtohandlecomplaints.To aspects ofgovernmentfromtheperspective the needforadditionalbodiestoscrutinizeparticular tion wasinaccordancewiththeAct, italsoimplied of justice,whowasrequiredtoensurethatalllegisla- While thismeantnewresponsibilitiesfortheminister n hadplaceda adoption oftheCanadianBillRights p demanded, theywouldclearlyprovetoposeunique ments ofsecrecythatthesefunctionsgovernment many dimensions.Whencoupledwiththerequire- w national security orthatmatterswere ters couldnot be discussedpubliclyforreasons of they wereoftenrebuffed,being toldeitherthatmat- the improprietyofRCMPSecurity Serviceactivities, their effortsduringthe1970s topose questionsabout important aspectofgovernance. Furthermore,despite Canada’s secretworldandhadscantexpertiseinthis majority ofparliamentariansknewlittleabout short shrift(Franks1980).Asaconsequence,thevast did comebeforeParliament weregenerallygiven order withoutinvolvingParliament. gence communityhadbeenhandledbyexecutive new orrestructuredcomponentsofCanada’sintelli- Prior tothe Parliament andnationalsecurity roblems forparliamentaryscrutiny. Inaddition,the ew emphasisontherightsofindividualcitizens. here thePrivyCouncilOfficeplayedaleadrolein In 1982,Canadacontinueditsprogresstoward CSIS A 16 ct of 1984,theintroduction 33 arliament would Such mattersas sub judice . 34 ecu- - - The first occasion on which the Canadian Parliament quent changes of membership of Commons committees provided any detailed study of national security matters and the overwork of many MPs, its suggestion that was over the CSIS Act. The way in which the govern- MPs could not be trusted either to protect the classified ment introduced the legislation was unusual. Instead of information or to keep their proceedings confidential tabling it in the House of Commons, the government begged for more detailed thought concerning alterna- sent its bill to the Senate, where a special committee, tive options and procedures. So too did its view that a consisting of only Liberal and Progressive Conservative parliamentary committee would have similar powers to members, was established to consider it. Also surprising the Security Intelligence Review Committee (SIRC). The was the choice of the person to head the committee. McDonald Commission, for example, had not only Immediately before becoming a senator, Michael envisaged a complementary role — not an alternative Pitfield had been the cabinet secretary, Canada’s most one — to SIRC regarding CSIS, but had foreseen the senior civil servant. It had been under his watch that need for a parliamentary committee that would have the recommendations of the McDonald Commission had a much broader remit, one that would have had been evaluated and the legislation drafted. If the encompassed the role of the various members of the government anticipated a free ride, it was mistaken, intelligence community as a whole. In addition, there because the draft bill came up against considerable crit- was no discussion concerning the possible benefits that icism in the Senate. As a result, the government a parliamentary committee might bring to the table, allowed the Bill to die and introduced a new one incor- such as the capacity to bring resource deficiencies to porating most of the Senate’s recommendations. the attention of the executive, to speak publicly on Though it was debated at length in the Commons, behalf of an intelligence agency when wrongly where New Democratic Party members opposed it maligned in the press or to develop a knowledge base strenuously, no significant amendments were subse- and degree of expertise for future ministers. quently accepted by the government. The special committee’s concerns over partisanship It is important to note that the Senate’s report also needed to be examined in more detail. While it is expressed a particularly negative view about true that some committees demonstrate a high degree Parliament’s capacity to play a major role in the of partisanship, it would be wrong to assume that all scrutiny of Canada’s intelligence community. On this committees do. Furthermore, there are often good rea- point, it stated a view that would find the support of sons why such partisanship is exhibited, not the least A

government for at least 20 years: because there are often genuine political differences as c c o

It has been submitted to the Committee that to how to proceed with policy initiatives. Unfortu- u n

the operations of CSIS should be subject to t

nately, senior bureaucrats sometimes become the tar- a

the scrutiny of a special parliamentary com- b i

gets of such partisanship, especially when committee l

mittee which would have much the same i t powers as the SIRC. The McDonald members do not receive detailed responses to y i

Commission also recommended the estab- n questions.35 In part, this arises from a lack of clarity as lishment of such a committee. We agree that, a n

ideally, such a committee would be of bene- to where the line should be drawn between policy, a d

fit. But there are many practical difficulties f matter for which ministers alone have responsibility, o involved. A parliamentary committee in r and administration, an area about which bureaucrats N many respects would likely duplicate SIRC’s a t

efforts. Further parliamentary committees are i can respond to committees. There are also examples of o notoriously subject to the vagaries of time, n a

changes in membership and overwork. There committees working very harmoniously. Here the work l S

is also the problem of maintaining the secu- a committee conducts in private, which is frequently e c

rity of information. This has the possibility u

less evident and often less accessible than that of the r i

of partisan motivations in some members, t y

but it also refers to the general question of executive branch (the latter being subject to the Access , b

whether that type of committee can maintain to Information Act while private parliamentary com- y

the requisite confidentiality by reason of the R mittee business is not), is as important as its public e nature of its proceedings. In view of these g

considerations, the Committee believes it hearings. Such was the case with the 1989-90 House of W h

would not be advisable to establish a parlia- i

Commons Special Committee on the Review of the t mentary committee with special access to a k

CSIS operations and information. (Senate CSIS Act and Security Offences Act, discussed below. e r

Special Committee on the Canadian Security Neither in its public hearings nor in its private meet- a n

Intelligence Service 1983, 31-2) d ings was there discord. On only one issue was a vote S

While the special committee was correct in point- t taken. Several reasons might explain such relations. u a ing to the difficulties of time management, the fre- r Perhaps most important, the committee was established t F a r s 17 o n IRPP Choices, Vol. 15, no. 9, September 2009 b a questions. account, especiallyregardingimportantpolitical capacity toholdthegovernmentministersproperly detailed answersfromSIRCeffectivelydiminishedits underpinning thereportsnorbeabletoreceive Parliament wouldneitherhaveaccesstothematters an accountingoftheagency. However, thefactthat Parliament bytheresponsibleminister, wouldprovide tion, anditsreports,onceeventuallytabledin (and toalesserextenttheefficacy)oforganiza- helpful insofarasitcouldcommentonthepropriety pendent bodytoconductreviewsofCSISwouldbe only partlytrue.To besure,havingaquasi-inde- “surrogate forParliament.” Suchaclaimwas,atbest, tion, thegovernmenthadpositionedSIRCasa cal accountability. Duringthepassageoflegisla- Parliament directlyinvolvedintheprocessofpoliti- was thepotentialnegativeimpactofnothaving m special statutoryreviews.Thecommitteealsohad p the committeehadaveryexperiencedchair, whohad very seriously, missingfewmeetings.Significantly, Thus, committeememberstooktheirresponsibilities are necessary capacity tocalltheresponsibleministeraccount is concerned.Bothindependentreviewandthe reviously chairedbothastandingcommitteeand y true surrogateforP ore staffthanmostparliamentarycommittees. Left outoftheSenatespecialcommittee’sequation statute withaspecificmandateandtimeframe. “not inthepublicinterest(ornationalinter information mustremainsecretbecauseitis Faced withaclaimbygovernmentthat matters ofstategreatlyrestrictsthisflow. flow ofinformation.Thesecrecyinvolvedin in othermatters,ontheeffectivenessof watchdog oversecuritymattersdepends,as Parliament’s abilitytoserveasauseful is, forreasonsofoffice.(20-1) ment tothegovernmentor bureaucracy, that or lessjustifiablesecrecyto avoid embarrass fied secrecyforworthwhile reasons ofstate for Parliament todistinguishbetweenajusti- mittee. Withalltheseobstacles,itisdifficult both onthefloorofHouseandincom acceptable ministerialresponsetoaquestion, order, anyanswer, ornoneatall,isan minister refusestorelease.Aslongasitisin obtain copiesofreportsorpaperswhicha mation. NorcanP are tellingthetruth,orconcealinginfor- civil servantstodiscoverwhetherministers Parliament cannot,forexample,question ent nagging,tocastdoubtontheclaim. Parliament hasfewtools,apartfrompersist- est)” torevealit(i.e.forreasonsofstate), 37 Thus, SIRChasnotbeen,andcannotbe, . As Franksarguedin1980: arliament whereaccountability arliament oritscommittees - - 36 - the In thepassagefromMcDonaldto dures didnotalwaysfollowMcDonald’sguidelines. its RCMPpredecessorwasnot,butthenewproce- was tobemadeaccountableinnumerouswaysthat security intelligenceagency, CSIS.Thenewagency Intelligence ServiceAct passed intolawin1984asthe inamendingthelegislationthatwas Committee We have alreadydescribedtheroleofPitfield security accountability, althoughnotalwaysdirectly. er, McDonalddidhaveadecisiveimpactonnational b An officialripostewaspreparedchallenginganum- McDonald’s recommendationswasnotencouraging. The immediatereactionofthegovernmentto Implementing McDonald:the are definedinsection2: tions 12and13). eign governmentsorinternationalorganizations(sec- or, byapprovedarrangement,totheprovinces,for- provide threatassessmentstothefederalgovernment constituting threatstothesecurityofCanada”and ties thatmayonreasonablegroundsbesuspectedof retain informationandintelligence“respectingactivi- report. CSISisempoweredtocollect,analyzeand tional frameworkinwhichitwastooperateand and thelimitsonitspowers,aswellinstitu- form theagency’sfundamentalmandate,itspowers ability forthenewagency the Security Service.Followingthecommission’sreport, of theabsencealegislativemandateforRCMP The McDonaldCommissionhadbeenhighlycritical Unlike itspredecessor, CSIShasastatutorymandate. framework forCSISlayinthelegislationitself. 1991b, 157-88). recommendations disappearedcompletely(Farson changes wereaddedandnewbywaystaken; some er ofpointsinthereport.Inlongerrun,howev- The mostcentralelementintheaccountability CSIS Act within Canada oraforeignstate, a sons orpropertyforthepurpose ofachieving use ofactsseriousviolence againstper- directed towardorinsupport ofthethreator (c) activitieswithinorrelating toCanada deceptive orinvolveathreat toanyperson, interests ofCanadaandare clandestine or relating toCanadathataredetrimentalthe (b) foreigninfluencedactivitieswithinor support ofsuchespionageorsabotage, Canada oractivitiesdirectedtowardin Canada orisdetrimentaltotheinterestsof (a) espionageorsabotagethatisagainst Security Offences Act Offences Security political, religious orideologicalobjective 18 itself wastobethebedrockofaccount- Threats tothesecurityofCanada , creating thenewcivilian , spelling outinstatutory Canadian Security CSIS Act Act CSIS 38 CSIS Act and and , some (d) activities directed toward undermining by practice, concerned the establishment of an additional covert unlawful acts, or directed toward or set of “eyes and ears on the Service” through the office intended ultimately to lead to the destruction or overthrow by violence of, the constitu- of the inspector general (IG) of CSIS. tionally established system of government in Judicial controls over intrusive surveillance methods Canada, (except for human sources) were adopted in the Act, but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with rules imposed on CSIS for making applications to with any of the activities referred to in para- the Federal Court for warrants for interception of com- graphs (a) to (d). munications. CSIS is thus provided with a descriptive list of In terms of external review, financial audits by the activities it may legitimately target, and those it may auditor general were not enshrined in legislation, not. Espionage, sabotage, terrorism and other forms although this idea was followed up in practice more of political violence and clandestine foreign-influ- than a decade later. The two proposed independent enced activities detrimental to Canadian interests are external review bodies were merged into one body, the all relatively noncontroversial as threats to security. Security Intelligence Review Committee, an institution The inclusion of activities described in 2(d) — in exhibiting some significant differences from the models effect, the controversial concept of “subversive” proposed by McDonald.39 activities — has led to demands that this definition be The most significant divergence from McDonald was removed or modified, especially after 1987, when the the decision not to follow up on the recommendation solicitor general, following recommendations made regarding a joint parliamentary committee to examine initially by SIRC and subsequently by the Inde- security and intelligence issues in camera. Instead, as pendent Advisory Committee, directed that the Solicitor General Robert Kaplan said several times dur- Counter-Subversion Branch of CSIS be disbanded, ing the debates over the CSIS Act in the House of with retained files distributed to more appropriate Commons, SIRC was supposed to be a “surrogate for operational branches or dispersed to the archives Parliament.” There was, however, a statutory provision (SIRC 1989, 1). The line between activities described for a five-year parliamentary review of the Act, as well in 2(d) and “lawful advocacy, protest or dissent” as an indication that the mandated annual report of might not always be easy to draw in practice. It is SIRC should be tabled in both houses of Parliament clear, however, that the definitions of legitimate and after being examined first by the minister. Apart from illegitimate targets have had important consequences A

these two exceptions, the legislation remains silent on c c for the accountability of CSIS, providing a legal base- o

the role of Parliament. u n

line for judging the appropriateness of the agency’s t a b

targeting. Drawing on the defined threats in the CSIS i Law enforcement versus security intelligence l i t Act, the agency has for some years indicated that it A crucial feature of the CSIS Act is that all of the y i does not target threats to national unity, such as the accountability elements are uniquely institution-specif- n a lawful forms of the Quebec sovereignty movement, n ic. That is to say, not all the various national security d unless it has reason to believe they are being carried f functions of the Canadian government are provided o r out in conjunction with activities described in sec- with systems of accountability, only those exercised by N a t

tions 2(a) to (d). i

CSIS. But CSIS was not, and is not, the only depart- o n

With regard to internal controls, the ministerial a

ment or agency of government involved in national l and administrative lines of responsibility suggested S security activities. We believe that institution-specific e c by McDonald were largely followed. Significantly, the u

review bodies represent a potentially crucial weakness r i t

head of the service was expressly made responsible y

where there is an overlap in function, as they would , for its control and management under the “direction b have to rely on the good nature of other parties, not y of the Minister.” However, two steps were taken to R the law, to scrutinize such practices in detail. e make the minister and the incumbent’s deputy more g The CSIS Act was passed in tandem with the W h

aware of the service’s activities. One was an obliga- i

Security Offences Act. The latter legislation authorizes t a tion on the part of the director to consult broadly k the attorney general of Canada to conduct proceedings e with the deputy minister. This included any matter r in respect to any criminal offence arising out of con- a n designated by ministerial directive for consultation, duct constituting a threat to the security of Canada d S t as well as all operational policies and warrant appli- within the meaning of the CSIS Act. The RCMP is des- u a r cations (sections 6 and 7). The other, following US ignated as the criminal law enforcement agency t F a r s 19 o n IRPP Choices, Vol. 15, no. 9, September 2009 sions tothe dence wasoneofthemostsignificant problemsiden tionship betweentheex police independenceandwithanarm’s-lengthrela- (explanation), wasincompatiblewiththeprincipleof that accountability, bothascontrolandreview Commission beforethemallproceededonthebasis Parliament, theSenatecommitteeandMcDonald from theRCMPwithitslawenforcementrole. have: “Thusthequestionofcontrolandaccountabili a law enforcement,andonthe“severeconsequences on thedifferencesbetweensecurityintelligenceand providing accountabilityinthisarea. chairs (seebelow),theCPChasprovedinadequatein Arar inquiryandthetestimonyoftwosuccessiveCPC security activities.AslaterindicatedbytheMaher about RCMPcriminallawenforcement,notnational was constitutedtoinvestigatecitizencomplaints Complaints againsttheRCMP(knownasCPC) established in1988. called forapubliccomplaintsprocess,whichwas CSIS Act s criminal lawenforcementwithregardtonational agency, the RCMPthusnevervacatedthefieldof the creationofCSISasaciviliansecurityintelligence r CSIS Act Intelligence Service1983,6). (Senate SpecialCommitteeontheCanadianSecurity traditional Canadiannotionsoflawenforcement” plays alargepart.Suchclosedirectionisatoddswith direction andreview, inwhichpoliticalresponsibility requires acloseandthoroughsystemofcontrol, confidential innature,securityintelligencework of aninvestigation.Sinceitissoopen-endedand adjudication byathirdpartyoftheappropriateness ty becomesimportant,becausethereisnoimpartial to itsnationalsecurityactivitiesundereitherthe accountability wasassignedtotheRCMPwithregard g course necessarysinceCSISwasdeliberatelynot pendence compelled themtoremaininignorance of indicated repeatedly thattheprincipleof police inde- RCMP SecurityService.Ministers oftheCrownhad ministerial responsibilityfor theactivitiesof tified bytheMcDonaldCommission: thelackofclear esponsible forinvestigatingsuchoffences.Despite ecurity offences.Thisassignmentofroleswas iven anylawenforcementpowers.However, no person’s life”thatsecurityinvestigationscould Directly relatedtothisissueofpoliceindepen- The PitfieldCommitteehadlaidparticularstress The key tounderstandingaccountabilityinthe or the lies intheseparationofsecurityservice Royal CanadianMountedPolice Act Security OffencesAct 40 The CommissionforPublic ecutive andlawenforcement. . In 1985,revi- - - ence forcriminallawenforcement.The ever thevalidityofrationaleforpoliceindepend- regard toaccountabilityfornationalsecurity, what- Trudeau in1977: of thisargumentcamefromPrimeMinisterPierre s for theirtabling inP cates aretransmitted toSIRC,thereisno provision (sections 30-33).Althoughthese reportsandcertifi- essary ex as towhethertherewasany “unreasonableorunnec- directives. Thecertificatesalso statetheIG’sopinion are incompliancewiththeA and towhether, inhisorheropinion,CSISactivities which theIG“issatisfiedwithdirector’sreport” states thatthesecertificatesattesttotheextent pared bythedirectorforminister odic reportsontheoperationalactivitiesofCSISpre- submits certificatestotheministerpursuantperi- for thedischargeofhisorherresponsibilities.TheIG under thecontrolofCSISthatIGdeemsnecessary and istohaveunimpededaccessanyinformation operational policies,reviewsactivities safety and isresponsibletothedeputyministerofpublic tions. TheIGisappointedbythegovernor-in-council part oftheMcDonaldCommission’srecommenda- by theofficeofinspectorgeneral.TheIGwasnot Ministerial oversightofCSISisfurtherstrengthened Ministerial control:theinspectorgeneral (now theministerofpublicsafety). tory responsibilityforCSIStothesolicitorgeneral responded tothisconcerninpartbyassigningstatu ecurity serviceoperations.Thebest-knowniteration Trudeau’s positionwasquiteunsatisfactorywith government. (Edwards1980,94) tions ofthepoliceatwhateverlevel ing thegovernment’snoseoutofopera to defendthegovernment.Itisoneofkeep- position. Itisnotoneofpleadingignorance way inwhichtheyaredoingit…Thatisour at, andwhattheyarelookingfor, andthe investigative practices,whattheyarelooking the policearedoingconstantlyintheir day shouldnothavearighttoknowwhat principle thattheparticularministerof as anexcuse. Itisamatterofstatingas case itisnotamatterofpleadingignorance one westandby. Thereforeinthisparticular all democraciesbutitisourviewand repeat thatthisisnotaviewheldby police forceandevenofthesecurityforce.I rance ofthedaytooperations has beenthatthey…shouldbekept inigno- the previousgovernmentsinthiscountry, the policyofthisgovernment,andIbelieve I have attemptedtomake itquiteclearthat . The IGmonitorscompliancebyCSISwithits ercise bytheServiceofany ofitspowers” 20 arliament orany formof ct andwithministerial 41 . The CSIS Act CSIS A - ct - publication, although most have subsequently been more than one year, although application may be made declassified in redacted form in response to access- for renewal. Warrant applications are heard only by to-information requests.42 specially designated judges of the Federal Court. Such The office of the IG is conceived strictly as con- hearings are held in a secure courtroom and in camera. tributing to executive control by enhancing ministe- To expedite the process, at least one designated judge is rial responsibility. It does this by serving as an on duty at all times to hear applications. In contrast to independent set of internal “eyes and ears” on the Criminal Code wiretaps, there is no subsequent obliga- activities of CSIS for the minister and by providing tion to reveal that a target has been the subject of an assurance. While this assurance plays a crucial role in intrusive investigation. ensuring compliance, it also covers certain matters of Early in CSIS’s institutional history, in 1987, a war- efficacy, particularly by identifying gaps in CSIS’s rant application containing incorrect information led to legislative and policy framework. Because the IG the resignation of the first CSIS director and to the operates within the machinery of government, find- compromising of a case against conspirators planning ing the right balance between cooperation, on the to assassinate a visiting minister of a foreign govern- one hand, and independence, on the other, is not ment (Cleroux 1990, 184-9).46 Following that, and in always easy. The IG may also be tasked by SIRC to part in response to earlier suggestions from SIRC on conduct a review of specific activities of CSIS.43 strengthening the warrant application process, CSIS has The history of relations between the IG, CSIS and constructed elaborate, multi-step internal control the minister has been mixed, with strains sometimes mechanisms for approval of applications.47 This has led clearly evident.44 Although the IG is supposed to have one observer to suggest that the main impact of the access to all relevant documentation, “cabinet confi- judicial control of surveillance applications may actu- dences” may be withheld. This could be a significant ally lie in the internalization of the control process limitation, as the government treats cabinet commu- within CSIS (Leigh 1996, 173). Very few warrants are nications to CSIS, crucially including ministerial now rejected. This may well be due to the fact that the directives, as falling into this category. However, a prior internal process, including ministerial approval number of ministerial directives and guidelines to and scrutiny by Department of Justice lawyers, weeds CSIS have been made public, in whole or in part, via out poor warrant applications before they are submitted releases under the Access to Information Act and to the court. A

SIRC reports. Those dealing with the handling of It should be noted that the role of judicial oversight c c o

human sources — not covered by judicial controls in national security is by no means limited to the con- u n t

over technical surveillance — and the targeting of so- trol mechanism of warrant approval under the CSIS a b i called “sensitive” institutions, such as universities Act. The judiciary also plays an important role in inter- l i t and religious organizations, suggest that fairly strict preting national security statutes, ruling on the consti- y i guidelines are imposed on CSIS actions.45 tutionality of legislative provisions, assessing the n a n

fairness of hearing procedures and considering the rea- d f Judicial oversight and internal control sonableness of security certificates under the o r

Sections 21 to 28 of the CSIS Act specify the condi- Immigration and Refugee Protection Act48 and the N a t i tions by which the service may apply for judicial appropriateness of applications regarding the public o n a

warrants that authorize the interception of communi- disclosure of evidence under the Canada Evidence Act. l S cations, the installation of surreptitious surveillance Judges have also played a crucial role as commission- e c u devices, the entering of private premises and the ers of public inquiries into national security activities, r i t y

search and seizure of documents, records, informa- and one review office, the commissioner of the , b tion or any other thing. Such applications must be Communications Security Establishment Canada, y R made in writing and accompanied by an affidavit of according to statute, must be headed by a supernumer- e g fact indicating reasonable grounds for believing that ary or retired justice. W h i the target may constitute a threat to security as t a k defined in the Act, and that other, less intrusive External review: the Security Intelligence Review e r methods of investigation are likely to prove inade- Committee a n quate. The target, including the person or persons, the SIRC is constituted as a committee consisting of a chair and d S t place and the information or things sought, must be between two and four other members.49 All members of the u a r specified. Warrants are also limited in duration, no committee must be privy councillors not serving in t F a r s 21 o n IRPP Choices, Vol. 15, no. 9, September 2009 requests having beenmadesince1996. early yearsof CSIS, withlessthan25percent ofall ters requestingsuchreports has declinedsincethe the IG,savecabinetconfidences(section39). access toallinformationitrequiresfromCSISand works inasecureenvironment,isentitledtohavefull adheres tothegovernmentsecuritypolicyandthus SIRC,which take anoathofsecrecy(section37). to swearallegiancetheQueenofCanada. bers haverefusedtotake theprivycouncillor’soathand the officialoppositionin1993election,asitsmem- not beenthepracticesinceBlocQuébécoisbecame any semblanceofmirrorrepresentationParliament has formal recognitionofthisputativeprinciple.Furthermore, by theMcDonaldCommission.Therehasneverbeenany parliamentary committeeunsuccessfullyrecommended s broadly reflectsthepartisanmakeup oftheHouse,thus a Commons. Theimplicationofthisconsultation,never leaders ofeachrecognizedpartyintheHouse “consultation” withtheleaderofoppositionand A request bytheministerundersection54of reports, ofwhichabout40haveresultedfroma inception in1984,SIRChaspreparedsome178review CSIS operationalactivities(section38).Sinceits the Act; andcompilinganalyzingstatisticson ligence withinCanada;reviewingregulationsunder affairs forassistanceinthecollectionofforeignintel- minister ofnationaldefenceortheforeign by CSISemployees;monitoringrequestsmadethe intelligence; reviewingreportsofunlawfulbehaviour tional organizationsandmonitoringinternational ments, departmentsandagencieswithinterna- reviewing CSISarrangementswithforeigngovern ligence sharingthatstemsfromsucharrangements; ments oragenciesandpoliceforces;monitoringintel- made byCSISwithprovincialgovernments,depart the ministertoCSIS;reviewinganyarrangements certificates oftheIG;reviewingdirectionsissuedby ing reviewingthereportsofCSISdirectorand formance byCSISofitsdutiesandfunctions,includ- the requirements applicabletoCSISofficers;according are ineffectconsideredtomeetthesamesecurity should benoted,however P redacted formunderthe upposedly substitutingfortherepresentativeroleof ctually spelledout,isthatthemembershipofSIRC arliament. ct SIRC ismandatedto“reviewgenerally”theper As swornprivycouncillors,themembersofSIRC . CSIS Act Most ofthesereportshavebeen releasedin 50 T , hey arechosenbytheprimeministerafter SIRC employeesmustbevettedand Access toInformationAct , that thepracticeofminis- 51 52 CSIS - - . - It annual reports. nature. Referencetothemisnormallymadeinthe lar allegations,ortheymaybemoresystemicin 54 reports.Thesemayincludeinquiriesintoparticu- From 1984through2006,SIRChasmade39section relates totheperformanceofitsdutiesandfunctions. with aspecialreportconcerninganymatterthat minister oratanyothertime,furnishthe CSIS Act such areviewitself.”Inaddition,section54ofthe Inspector Generalwouldbeinappropriate,conduct considers thatareviewbytheServiceor task theIGtoreviewparticularmatters,or“whereit by theServiceofanyitspowers.”SIRCmaythus not involveanyunreasonableorunnecessaryexercise and ministerialdirections,thattheactivities“do carried outinaccordancewiththeAct, regulations reviews, toensurethattheactivitiesofserviceare reviews, ortodirectCSIStheIGconduct 4 review andcomplaintinvestigationfunctions.Section o ty andpersonalprivacy. Theannualreports,available be redactedbytheministertoprotectnationalsecuri- in turntablesthemParliament. Thesereportsmay a cally includesaregionalofficereviewandanauditof potentially relevantmatters.Eachannualreport tive basissinceitlackstheresourcestoreviewall P lost theirnewsvalueandcapacitytogain occurred asmuch18monthspreviouslyandhave are tabled,theeventscoveredhavesometimes files, electronicandinhardcopy typically reviewsallrelevantCSISdocumentsand tions. Inconductingthesein-depthinquiries,SIRC into particularmattersandSIRC’sstatutoryobliga- CSIS operations,SIRC’spublicundertakingstolook government policychangeswithimplicationsfor threat environment,issuesarisingfromcomplaints, topics, SIRClookstofactorssuchastheinternational ther topicsselectedforin-depthinquiries.Inselecting investigations. CSISmak agencies. SIRC mayalsoconductinterviews andfield departments including,where relevant,international ex internal CSIScorrespondence andrecordsof umentation, operationalreports, humansourcelogs, geting authorizations,warrantswithsupportingdoc- 0 n arliament’s attention. security liaisonofficer(SLO)postabroad,withfur changes ofinformationwith otheragenciesand S SIRC developsanannualresearchplanonaselec- of the the SIRCwebsite,coverbothcommittee’s IRC submitsannualreportstotheminister, who provides thatSIRCmay, onrequestbythe C SIS Act 22 53 However, bythetimesuchreports a uthorizes SIRCtoconduct es aseparateoffice with . These includetar typi- - - computers available at CSIS headquarters in Ottawa intelligence abroad as well as in Canada, so long as the for the exclusive use of SIRC staff. Parliament, it intelligence was related to threats to the security of should be noted, has no ongoing way of knowing Canada as specified in the Act. On this basis, CSIS has how thorough these reviews are or whether they use acknowledged its growing role as an intelligence col- acceptable research practices. lector outside Canada since 9/11. While this is not pre- cisely a foreign intelligence role similar to that Targeting review performed by the US Central Intelligence Agency or Within CSIS, the Target Approval Review Committee Britain’s Secret Intelligence Service, in that political, (TARC) is the senior operational committee charged economic or military intelligence that does not relate to with considering and approving applications by CSIS threats to Canadian security or Canadian interests officers to launch investigations.54 SIRC reviews tar- would fall outside the CSIS ambit, this expanded inter- geting authorizations made by TARC to ensure com- national role is one that challenges existing accounta- pliance with the CSIS Act, ministerial directions and bility procedures in terms of both propriety and relevant operational policies. SIRC examines whether efficacy. The current IG, for example, has suggested CSIS had reasonable grounds to suspect a threat to that CSIS lacks a suitable framework for its operations the security of Canada in seeking its targeting in Afghanistan. The Federal Court’s rejection of a CSIS approval, whether the level and intrusiveness of the warrant application that would have permitted its per- investigation were proportionate to the seriousness sonnel to follow suspected Canadian citizens to and imminence of the threat, whether the service col- unidentified countries and then to intercept their com- lected only that information strictly necessary to munications, on grounds that the court had no authori- advise the government of a threat, whether CSIS ty to endorse such a warrant, further exemplifies respected the rights and civil liberties of individuals shortcomings in the law and oversight procedures and groups, and whether any information was (Freeze 2008). exchanged with other agencies (SIRC 2003, 14-16). The Afghan theatre is also the locus of operations On occasion, SIRC has indicated concerns about for other national security organizations. John Adams, aspects of targeting and conveyed advice to CSIS on the current chief of the CSEC, has publicly acknowl- changes in procedure. edged that his agency is operating there. To these must be added the operations of the military’s new HUMINT A

Foreign intelligence (human intelligence) unit and the much expanded JTF2 c c o

Under section 16 of the CSIS Act, the minister of for- (Joint Task Force 2), the rules of engagement of which u n

55 t eign affairs or the minister of national defence may are not known (Akkad 2008). Although all military a b i ask CSIS to collect intelligence in Canada concerning personnel are subject to the Code of Service Discipline, l i t the “capabilities, intentions or activities” of a foreign the only unit within Canada’s military that is subject to y i state. SIRC annually reviews all ministerial requests independent oversight would appear to be its military n a n for section 16 operations to ensure compliance with police. During the 1990s, two special advisory groups, d f the Act, as well as compliance with a memorandum headed by former chief justice Brian Dickson, had rec- o r of understanding to the effect that any request must ommended improving the military justice system. The N a t i contain an explicit prohibition against targeting report of the Létourneau Commission into the torture o n a

Canadians, permanent residents and Canadian corpo- and killing of a Somali teenager was more damning, l S rations, and that the request should indicate whether pointing to a failure of leadership and a lack of e c u the proposed activity is likely to involve Canadians accountability in the Canadian Armed Forces and a r i t y

(SIRC 1998, 53). SIRC reviews section 16 operations failure of Parliament to scrutinize them adequately or , b on a randomly selected audit basis and has identified to engage in policy development (Commission of y R errors. CSIS requests to the Communications Security Inquiry into the Deployment of Canadian Forces to e g

Establishment Canada (CSEC) for access to that Somalia 1997). The government responded by disband- W h i agency’s communication intercepts are routinely ing Canada’s elite Airborne Regiment and by establish- t a k scrutinized by SIRC to ensure that they comply with ing the Military Police Complaints Commission in e r existing law and policy. December 1999. This is a quasi-judicial, independent a n Former CSIS director Ward Elcock has publicly civilian agency that now examines complaints about d S t stated on several occasions that his interpretation of the conduct of members of the military police in per- u a r section 12 of the CSIS Act permitted CSIS to collect forming their policing activities or about interference t F a r s 23 o n IRPP Choices, Vol. 15, no. 9, September 2009 with thefacts and circumstancesofthecases fully whether theaffidavitsarecomplete andbalanced, tion andincludeallpertinent information,and fairly andobjectively expressed(SIRC2002, 21). ance withthe with foreignintelligenceservices,toensurecompli- SIRC reviewswrittenarrangementsforcooperation Foreign intelligencesharing either torture national securityagencieshavebeeninvolvedin there hasbeennoclearevidencethatanyofCanada’s i correct andadequatelysupported inthedocumenta seeks toascertainwhetherthe affidavitsarefactually TARC minutes.Inreviewingthisdocumentation,SIRC affidavit, therequestsfortargetingauthorityand porting documentation,workingfilesrelatingtothe tions wereprepared,includingtheaffidavitsandsup- all documentsrelatingtohowthewarrantapplica reviewing theobtainingofawarrant,SIRCexamines tions. Inaddition,itproduceswarrantstatistics. mentation andapplicablecourtdecisionsregula- such mattersaswarrantacquisition,imple by CSIS.Inits200 SIRC annuallyreviewstheuseofFederalCourtwarrants W course ofitsregularreviewsSLOpostsabroad. under anygivenforeignarrangementduringthe examines thesubstanceofinformationexchanged eign agencyresultsinhumanrightsabuses.SIRCalso in ensuringthatnointelligencetransferredtoafor- flagged relationshipswhereCSISshouldbevigilant the humanrightsrecordofhostcountries,andhas and conditionsforapproval.SIRChasalsoexamined ties (“NewCaseofAfghanPrisonerAbuse”2007). received afterbeinghandedovertoAfghanauthori- ment Canadian-capturedTaliban fightershave R that havelargelyescapedoversightintheUS. t n hat havetarnishedtheirAmericancounterpartsand ecently, concern hasbeenexpressedaboutthetreat- arrants or obstructionoftheirinvestigations.Since9/11, SIRC’s examinationofthewarrantprocesscovers of itspriorities. an importantindicatoroftheService’sview breadth ofitsinvestigativeactivitiesandis rants providesinsightsintotheentire our reviewoftheService’shandlingwar Committee takes veryseriously. Inaddition, continued scrutiny Canada. Forthisreasonalone,theirusebears ment oragencyoftheGovernment intrusive toolsinthehandsofanydepart- W arrants areoneofthemostpowerfuland 56 CSIS Act or extraordinaryrendition,matters 1-02 annualreport,SIRCstated: , and withministerialdirectives which taskthe - - , - - CSIS Act with nationalsecurityconcerns. cedures aredesignedtobalanceproceduralfairness Maher Arar2006b, 174-5). the Actions ofCanadianOfficialsinRelationto written ororalhearings(CommissionofInquiryinto lowing investigationsofcomplaints,involvingeither 883 complaintsandproduced118 writtenreportsfol- criminal groundsbytheministerofimmigration. denials ofcitizenshipapplicationsonsecurityor a as forfederalgovernmentcontractors.SIRCalsohas ernment employeesorprospectiveemployees,aswell t or thingdonebytheService”andcomplaintsrelating CSIS Act complaints pursuanttosections41 and42ofthe SIRC hasamandatetoinvestigatetwocategoriesof Complaints be unknownto thecomplainant’scounsel” (Rankin also abletoexplore issuesandparticulars thatwould available tothecomplainant’s counsel,heorsheis and hashadtheopportunity toreviewfilesnot mittee counselhastherequisite securityclearance witnesses. Asonecommentator notes:“Sincecom- ties areex 2005). Inthecaseofan representations ofthepartiestooneanother(SIRC viding fairnesstothepersonaffected,”disclose preventing threatstothesecurityofCanadaandpro the investigation,in“balancingrequirementsof it iswithinthediscretionofmemberconducting parties, subjecttosection37oftheAct, butstatethat tionary disclosureofevidenceandrepresentationsto SIRC’sRulesofProcedure providefordiscre- 48[2]). tions made…byanyotherperson”(sections50and ing, tohaveaccessto,orcommentonrepresenta that “nooneisentitledasofrighttobepresentdur- represented bycounsel.TheA resentations toSIRC,presentevidenceandbe vant departmentsareallgiventherighttomake rep- to administeroaths.Thecomplainant,CSISandrele witnesses, tocompeldocumentsbeproducedand conducted incamera.SIRChasthepowertosummon ance” (section46).Investigationsofcomplaintsare stances givingrisetothedenialofsecurityclear- to beasfullyinformedpossibleofthecircum- tion availabletoSIRC“as willenablethecomplainant ment tothecomplainantsummarizingsuchinforma- the denialofsecurityclearance,SIRCsendsastate- o mandate toconductinvestigationsinrelation the denialofsecurityclearancesforfederalgov- From itsinceptiontoMarch2005,SIRCreceived , : when investigatingacomplaintconcerning cluded), SIRCcounselwillcross-examine complaints madewithrespectto“any act 24 ex parte 58 In hearings,specialpro- tprovides,however, ct 59 hearing (wherepar- According tothe 57 - - - 1990). When a party is excluded from a hearing for tioned, a process to which SIRC contributed through its reasons of national security, he or she may be provid- critical reviews of the service’s operations, leading in ed with the substance of the evidence given or repre- 1987 to the closing of the Counter-Subversion Branch sentations made, although this is discretionary. The of CSIS on ministerial order.62 Supreme Court of Canada60 has held that the rules Counterterrorism became a leading concern as well, recognize and strike a fair balance between the com- especially after the Air India bombing in 1985 took the peting interests of the individual in fair procedures, lives of 329 people, the vast majority of them and the state’s interest in effectively conducting Canadians. The failure to prevent that attack, the short- national security and criminal intelligence investiga- comings of the investigation (criminal proceedings tions and in protecting police sources (Arar began only in 2003 and have yet to result in any con- Commission 2006a, 275-6). victions for direct responsibility) and evidence of lack SIRC is limited in its powers to making findings of cooperation between CSIS and the RCMP all con- and recommendations. In this regard, the Supreme tributed to increased demands for greater accountabili- Court has held that its recommendations are not ty. In 2005-06, two special investigations of the Air binding on the government.61 India affair were called; the second was a full-scale The McDonald Commission had recommended the judicial inquiry under a retired Supreme Court justice,63 creation of a separate Security Appeals Tribunal, indicating a serious lack of satisfaction with the level presided over by a Federal Court judge, to hear of accountability produced by the SIRC/CSIS process appeals relating to immigration, citizenship and secu- two decades earlier. rity clearances (Commission of Inquiry Concerning The decade of the 1990s was a transition to a post- Certain Activities of the Royal Canadian Mounted Cold War era. With the collapse of the Communist bloc Police 1981, 1:421-6, 2:805-11). McDonald saw this and the dissolution of the Soviet Union, the old Cold tribunal as a quasi-judicial body. “Given the adversar- War paradigm disappeared; but in this decade there was ial nature of proceedings before the tribunal, and the no clear successor paradigm to replace the old one. need for the tribunal to function as much as possible Government economy measures were being extended to like a Court, we think it should be quite separate from encompass security and intelligence as well as other the Advisory Council on Security and Intelligence functions, and CSIS found its budget under constraint at which will have a broad mandate to review and advise the same time as it had to redefine its role in a changing A

the government on all aspects of security and intelli- threat environment. In 1994, SIRC was called upon to c c o

gence policy and operations” (2:883). In the CSIS Act, undertake a major public accounting of a scandal that u n t

however, review and complaints are combined in the beset CSIS. The “Heritage Front affair” involved the a b i same body. Combining the two functions in one body naming in the media of a CSIS source within an l i t does offer certain advantages from the point of view extreme right-wing organization and a series of ques- y i of accountability. SIRC insists that it gains a more tions that arose from this revelation. The report of a n a n comprehensive understanding of CSIS operations than section 54 special investigation was made public, with a d f would be possible if it were limited to review alone few parts removed on security grounds (SIRC 1994). o r

(Leigh 1996, 160). The third period was dramatically initiated by the N a t i

terrorist attacks of September 11, 2001, on New York o n a

SIRC and CSIS: evolution of the review process and Washington, DC, and the declaration by the US l S

Since 1984, the relationship between SIRC and CSIS government of a “war on terrorism” in which Canada e c u and the nature of the accountability process have has become a participant. New powers to combat ter- r i t y

evolved with experience. The context within which rorism were passed by Parliament and new resources , b both the agency and its review body operate has invested. CSIS has stepped up its security intelligence y R undergone some dramatic changes. collection capacity abroad (Freeze 2006). Other agen- e g

The first half decade following the CSIS Act fell cies, including the RCMP and the CSEC, have become W h i within the continuing context of the Cold War. The more active in anti-terrorist activities. Domestically, a t a k continuing assumption was that the main security new umbrella department of government, Public Safety e r threat to Canada came from the Communist bloc. Canada, has been created to direct the security and a n Counter-espionage was a leading priority for CSIS. intelligence functions of government. And the first d S t Counter-subversion — a priority throughout the earli- official National Security Policy has been published u a r er Cold War period — was increasingly being ques- (Farson and Whitaker 2008). t F a r s 25 o n IRPP Choices, Vol. 15, no. 9, September 2009 in recentyears. tion onCSISshortcomings, asithascontinued todo SIRC hasnotlostitscapacity tofocuspublicatten- leadership ofSIRC’sfirstchair in relationtoCSISanddefiningitsrole(underthe relatively aggressivebehaviourinestablishingitself half decadesofitsexistencefromanearlyperiod ability inthefuture. ommendations withseriousimplicationsforaccount John Major, hasyettoreportandmaywellhaverec- mission ofinquiryintotheAirIndiabombingunder require policyrecommendations.Theother, thecom- ceedings inprivateanditstermsofreferencedidnot nature totheArarCommissionbutconducteditspro- Nureddin, underFrankIacobucci,wassimilarin Almalki, AhmadAbou-ElmaatiandMuayyed of CanadianOfficialsinRelationtoAbdullah established. One,theInternalInquiryintoActions review body. Twootherpublicinquirieswerealso mally scrutinizedunderanindependentexternal mended bringingseveralagenciesnothithertofor- enhanced reviewsystemfortheRCMP, italsorecom- inquiry wasostensiblychargedwithestablishingan has notyetresponded).Thoughthecommissionof policy recommendations,towhichthegovernment s regime ofaccountabilitywithregardtonational t major commissionofinquirythathasmadeimpor- the MaherAraraffair, thatbroughtinitswake a associated withtheconductofsecurityintelligence, each other the regulatedtobecomeever moreaccommodativeof regulation suggestsatendency fortheregulatorand comfortable witheachother, justasthehistoryof long termforreviewerandreviewedtogrowmore tion. tinize butonwhichitisdependentforitsinforma- body “captured” bytheagencyitissupposedtoscru- argue thattoocozyarelationshipsuggestsreview pretation ofeffectiveaccountability, somecritics CSIS. Whilethismayseemtosignalapositiveinter good workingrelationshipthatithasestablishedwith terms ofitsreviewbody, whileSIRCunderlinesthe CSIS todayspeakspubliclyingenerallysupportive institutionalized relationshipwithitssubjectagency. mittee seemstohavesettledintoarelativelystable the early1990s,toaperiodinwhichreviewcom- 1984 to1989),aperiodofcontractionandfluxin ant recommendationsforoverhaulingtheentire ecurity activities(seebelowformoreaboutthese Institutionally, SIRChasmovedoverthetwoanda S ince 9/11, therehasbeenoneseriousscandal 64 There isperhapsacertaininevitabilityoverthe . There aredefinitedangersin this,but 65 , Ronald Atk ey , from - - were dismissedwithoutexplanation. Security Offences Act The onlyparliamentaryfunctionthatthe Offences Security The five-yearreviewofthe of CSIStoprovide apublicversionofthe CSIS annual the decisionby thegovernmenttorequire thedirector however, ithadmodestsuccess.Thefirstconcerned concerning accountability legislation werebeingmet,particularlythoseaspects determine whetherthevariousrequirementsof was typicaloratypical,Parliament wasunableto unable todeterminewhethertheflawedSIRCreport Because itwasdeniedaccesstokey recordsand was SIRC subsequentlyconcurred(Farson1995,185-212). ously flawedmethodologically, apointonwhich determine thatatleastoneofSIRC’sreportswasseri had been.Despitethesedifficulties,itwasableto reports andwhatitsrecommendationstotheminister speak freelyaboutwhatunderpinneditsvarious records. obtain accesstoparticularpeople,papersand available. Significantly, itfoundimpossibleto from fulfillingitslegalobligationswithinthetime numerous roadblocksthatultimatelypreventedit A review oftheprovisionsandoperation[oftwo required bystatutetoconducta“ year tocompleteitstask.Thoughthiscommitteewas years. two actsaftertheyhadbeeninoperationforfive lishment ofaspecialcommitteein1989toreviewthe and external reviewofitsoperations(Gill1989). and usuallystayoutoftrouble,partlyasaresult advanced, andintheabilityofCSIStoavoidpitfalls of thenormsaccountabilitythatSIRChas “culture” ofCSIS,reflectinganinternalizationsome impact maybefoundintheinternalproceduresand Some observershavesuggestedthatSIRC’smain coming tolightviaaccess-to-informationrequests. or mostlyclassified,withonlyoccasionalglimpses cover topicsofpublicconcern,butareusuallyentirely a public enlightenmentandrarelyattractmuchmedia i in secrecy, orsemi-secrecy. Strippedofnondisclosable most ofitsreviewactivitiesarenecessarilyshrouded tiveness isdifficulttoassessgiventhedegreewhich nformation, itsannualreportsprovideonlylimited ttention. Occasionalspecialsection54reportsmay cts],” thespecialcommitteesoonfounditselffacing Most ofthespecialcommittee’s recommendations T here isapublicperceptionproblem:SIRC’seffec- Security OffencesAct 67 68 For thispurpose,P Furthermore, its“surrogate”wouldnot 26 , envisaged wastheestab- arliament wasgivenone control andreview CSIS Act CSIS comprehensive 69 In threeareas, CSIS Act and 66 . - report. Second, and perhaps not surprisingly, the spe- arguably Canada’s most secret intelligence agency, the cial committee recommended the establishment of a Communications Security Establishment Canada (Rosen parliamentary committee that would have broad and 1993). As Canada’s primary electronic eavesdropping guaranteed access to the secret world and its review agency, the CSEC (called the Communications Security bodies. Though the government ignored this recom- Establishment, or CSE, until September 2007) collects mendation, as it had a similar one by McDonald, foreign intelligence through technical rather than Parliament took up its fallback position and estab- human sources. It intercepts, decrypts, retains and ana- lished the Subcommittee on National Security of what lyzes foreign communications in support of Canadian was then the Standing Committee on Justice and the defence and foreign policy, and offers protection serv- Solicitor General. The idea was to produce the least ices for electronic information and communication threatening type of committee to look at a broad within the government of Canada. It also provides range of national security issues.70 Variations of this technical and operational assistance to federal law committee have been established in subsequent enforcement and security agencies under their respec- Parliaments. Few have taken up the items that the tive warrant processes. special committee thought should form part of its The CSEC began during the Second World War and workplan. Their impact on the policies and procedures continued into peacetime as the Communications of the broader intelligence remit have remained limit- Branch, National Research Council (CBNRC). After its ed, sometimes even failing to consider the annual existence was exposed by the media in 1975, the reports of SIRC and the director of CSIS. In part, this CBNRC was transferred to the Department of National was due to the broadening of party representation in Defence and renamed the Communications Security the House of Commons in the 1990s from three to Establishment through a series of rather innocuous five. Significantly, one of these new entities was the orders-in-council.71 From its origins, the agency’s Bloc Québécois, a party that wanted independence budget was deliberately hidden, and indeed its very from Canada for Quebec. Given that it at one point existence was an official but poorly kept secret until became the official opposition, this raised difficult 1983, when public acknowledgement was made by the questions if Parliament was to be deeply engaged in government during the debate on the CSIS Act (Senate overseeing Canada’s security and intelligence commu- Special Committee on the Canadian Security nity. In its most recent incarnation, the national secu- Intelligence Service 1983, 18-19, 23, 31-3).72 A

rity subcommittee has tended to morph into a In 1990, the special committee that conducted c c o

subcommittee of the whole Justice committee that has Parliament’s five-year review of the CSIS Act recom- u n t

not confined itself to national security matters. mended that the CSE be given a statutory basis as well a b i

Perhaps the special committee’s most important as a review mechanism (House of Commons Special l i t impact concerned something not found among its Committee on the Review of the Canadian Security y i recommendations. Staff of the special committee Intelligence Act and the Security Offences Act 1990, n a n were authorized in 1990 to strike an agreement with 153). The privacy commissioner and the auditor d f the Office of the Auditor General for the latter to general73 subsequently reiterated these concerns about o r consider the work of Canada’s security and intelli- the lack of a statutory mandate. N a t i gence community. Though work did not begin until The review system was achieved in an unusual way o n a

1996, largely because of the amount of discussion when Derek Lee, a former member of the five-year l S needed to reach an agreement with the government review committee and then the chair of the e c u on what would be considered and how security pro- Subcommittee on National Security, placed a motion on r i t y

cedures would be maintained, the OAG has since the order paper. Amid public criticism of the lack of , b become an important player in the review of the effi- transparency in CSE operations and media allegations y R cacy of Canada’s security and intelligence communi- of wrongdoing, the government eventually acted but e g ty, focusing its attention on at least one organization not through Parliament. Though the special committee W h i or a particular practice in each of its recent annual had recommended extending SIRC’s mandate to include t a k reports. the CSE, it chose instead to create a new office: com- e r

missioner of the CSE. The government’s method was a n through an order-in-council, which again avoided any d

The office of the CSE commissioner S t Another idea that did eventually come to fruition discussion in Parliament of the mandate of either the u a r concerned the establishment of a form of review for CSE or the commissioner until the debate over the Anti- t F a r s 27 o n IRPP Choices, Vol. 15, no. 9, September 2009 Act a powers. Theseprovidetheincumbentwithguaranteed t and theIG,whichhaverightofaccesstoinforma- considers itadvisable. fied reportstotheministerwhencommissioner Parliament. Thecommissionermayalsosubmitclassi- defence withanunclassifiedversiontobetabledin report mustbesubmittedtotheministerofnational important, since2001, themandateitself).Anannual under partIIofthe commissioner oftheCSEallpowersprovided t amended.” current legislation“lacksclarityandoughttobe commissioner andhispredecessorsbelievethatthe regard, itisimportanttonotethatboththecurrent report anyfindingsintheannualreports.Inthis with theconditionsofauthorization,andto authorizations toensurethattheyareincompliance review activitiescarriedoutundersuchministerial conditions. cations ofCanadiansundercertainspecified ed toauthorizetheinterceptionofprivatecommuni- with theOfficeofCommissioner complaints aboutthelawfulnessofCSECactivities pass acomplaintsfunction.Thus,citizensmayfile the commissioner’smandatewasextendedtoencom commissioner himselfinhisannualreports. serious omissionregularlyunderlinedbytheCSE did notprovideastatutorymandatefortheagency, a Code, theCharterofRightsandFreedoms, cient inthatitdealsonlywith certainaspectsofpropri reported totheministerand theattorneygeneral. discovers thatdoesnotcomplywiththelawmustbe compliance withthelaw,” [CSE] todeterminewhetherthoseactivitiesarein mandate wasoriginally“toreviewtheactivitiesof give evidenceunderoath.TheCSEcommissioner’s of theagency, andtheauthoritytorequirepersons formalized underthe tion, whilenotdisclosinganyclassifiedinformation. inform acomplainantoftheresultsaninvestiga investigation isrequired.Thecommissionermust Review Committeethenrecommendswhetherfurther there isnospecific forward-lookingobligation toestab agency hascomplied withlaw, regulationsandpolicy, ety. Whilethereisarequirementtocertify thatthe errorism Act ion andpersonnel,thecommissionerhassubpoena nd immediateaccesstobothpersonnelandrecords In ourview, thecommissioner’smandate isinsuffi- In 2001, thecommissioner’smandatewasfinally or anyotherrelevantlegislation(and,most 78 77 Any CSECactivitythatthecommissioner The commissionerisnowdirectedto i n 2001. Significantly, thisgavethe Inquiries Act Anti-terrorism A 75 Crucially, theorder-in-council 74 including theCriminal . Thus, unlike SIRC . A ct Complaints and expand 76 In 1999, Privacy - - - - - his 2005-06annualreport,thecommissionerstated: recommendations acceptedbygovernment.Writing in been mix the legislationwerealsogivenshortshrift. pales bycomparison.Otherimportantattributesof into individualprivacyasCSIS,theCSECexperience arguably justassecretiveandpotentiallyintrusive is instructive.DespitethefactthatCSEC country ofwitnessesheard;andthebriefsconsidered) of thestudy;number, typeandregionofthe (particularly regardingsuchmattersastheduration CSIS whenthe study’s handlingoftheCSEC’smandateandthat report toParliament. Acomparisonbetweenthis commissioner shouldbeorhowthatofficemight sider theroleofCSEC,whatmandate tion. Consequently, ithadlittleopportunitytocon- the mostimmediatelyworrisomepartsoflegisla- 9/11, Parliament wasforcedtofocusitsattentionon o e tions technology. Significantly, thereisnomandateto threat environmentandrapidadvancesincommunica- quate, particularlyinlightofacontinuouslychanging l period bythegovernment. Theyhaveproduced many right tohavetheirreportsresponded towithinaset work ofCanada’ssecretworld, despitenothavingthe than committeesoftheCommons inscrutinizingthe suggests thatitscommitteeshave beenfarmorerobust of nationalsecuritysincethe establishmentofCSIS An examinationoftheworkSenateonmatters Senate committees which havealsogarneredscantmediaattention. been calledtotestifyontheoffice’sannualreports, Perhaps forthisreason,onlyonecommissionerhas of itspublicreports,especiallyinearlyyears. part, thishasbeenduetotheratherinnocuousnature practice has,however, beenextremelylimited.Inlarge ish whethertheseremaineitherappropriateorade- stablish whethertheCSECoperatesefficaciously. mnibus anti-terrorismlegislationimmediatelyafter The impactoftheCSEcommissioner’sworkhas When thegovernmentsoughttorushthroughits The office’simpactonthepublicandparliamentary not acceptedbyCSE. either bypassedbyeventsor, inafewcases, considered byCSE.Theremainderwere cations orareveryrecentandstillbeing mendations wereacceptedwithsomemodifi- implemented. Halfoftheremainingrecom mented orareatvariousstagesofbeing by CSEandhaveeitherbeenfullyimple- CSE Commissioner, 75percentwereaccepted Of almost1 ed. Onthepositivesidearenumerous 28 CSIS Act 00 recommendationsmadebythe was adoptedin1983-84 80 - 81 79 more substantive reports than their counterparts in the tion and systematic program review following the end House. This is true of both Senate special committees of the Cold War, the OAG initiated the first audit of and Senate standing committees. Noteworthy among Ottawa’s security and intelligence functions as a whole. the former are the two committees dealing with terror- This report, which was to become the first of a regular ism in the 1980s that were chaired by Senator William cycle and specifically focused on control and accounta- Kelly and his Committee on Security and Intelligence of bility across the intelligence community, was unprece- the late 1990s. Similarly, the Senate’s Standing dented in scope. The US Government Accountability Committee on National Security and Defence, chaired Office has audited specific programs, but never the by Senator Colin Kenny, has been particularly active in entire field of intelligence.82 The OAG was highly spe- this regard, providing some 16 substantive reports since cific in recommendations for tightening controls and 2002. And whereas the work of the House has on bal- modifications to address indicated weaknesses. ance tilted toward matters of propriety, the Senate’s In recent years, reports from the OAG have attracted committees have been more broad-brush and have increasing public attention, and governments appear to tended to be more interested in matters of efficacy, par- be under more pressure than in the past to respond ticularly concerning the capacities of the various mem- positively to shortcomings revealed by the audits. The bers of Canada’s national security apparatus and their OAG is specifically mandated to examine financial con- performance. While one may sometimes disagree with trols, cost-effectiveness of government operations and the style, the frequently alarmist tone and the approach standards of public service ethics in handling the tax- taken by the Kenny committee, and even with some of payers’ dollars. These are important factors to consider its findings, one cannot dispute the fact that it has con- in national security accountability, and the OAG is tinuously raised the profile of a wide spectrum of secu- qualified to carry out such reviews, particularly given rity concerns of national importance, something that its practice of revisiting programs with a view to estab- House committees have largely failed to do. lishing whether improvements have been made. In 2003, the OAG released a report specifically The office of the auditor general directed at gaps in the extent and nature of the exter- One of the most important bodies created during the nal review of Canada’s security and intelligence agen- period following Confederation, from Parliament’s cies, and in the disclosure of findings. The OAG perspective, was the Office of the Auditor General of assessed the level of external independent review over A

Canada. This body has been independent of the exec- each agency involved either directly or in providing c c o

utive branch since its establishment in 1878. The vast assistance with the collection of intelligence within u n t

majority of review bodies — even those said to be Canada, including CSIS, the RCMP, National Defence, a b i independent — keep to the convention of ministerial the CSEC, the Canada Revenue Agency (CRA) and the l i t responsibility by reporting to the responsible minister, Financial Transactions and Reports Analysis Centre of y i who then tables their annual reports in Parliament. In Canada (FinTRAC). The OAG concluded that powers to n a

83 n stark contrast, the auditor general’s reports are review security and intelligence agencies vary widely. d f referred directly to the Public Accounts Committee, With respect to the Canadian Forces, the CRA and o r one of only a few committees to be chaired by a FinTRAC, the OAG noted that the organizations do not N a t i member of the official opposition. Besides conducting have a specific agency that independently reviews o n

84 a

comprehensive audits of individual departments and compliance with law and ministerial direction. With l S agencies, it also conducts value-for-money audits of respect to the RCMP, the OAG concluded that the e c u specific programs and government-wide issues. It Commission for Public Complaints against the RCMP r i t y

therefore can provide invaluable insights for members does not have the same level of access to RCMP infor- , b of Parliament regarding the efficacy and finances of mation as the inspector general and SIRC have to CSIS y R government organizations. information. Just as review agency mandates vary, so e g

Although the McDonald Commission made brief too do the reporting and disclosure of findings to W h i reference to the desirability of ensuring financial Parliament. The OAG recommended that the govern- t a k accountability for national security through the OAG, ment should assess the level of review in reporting to e r the CSIS Act made no specific provision for such Parliament for security and intelligence agencies to a n financial audits. However, in the mid-1990s, at the ensure that agencies exercising intrusive powers are d S t urging of the special committee that had reviewed the subject to levels of external review and disclosure pro- u a r CSIS Act, in the context of federal expenditure reduc- portionate to the level of intrusion.85 t F a r s 29 o n IRPP Choices, Vol. 15, no. 9, September 2009 servant, BlairSeaborn,toundertak on SecurityandIntelligenceunderaseniorpublic government tasked theInterdepartmentalCommittee jeopardizing theRCMP’scriminalinvestigation, from consideringthematter, supposedlytoavoid inquiry anddiscouragingbothSIRCParliament prior to200 most deadlyattackinvolvinganaircraftanywhere largest massmurderinCanadianhistoryandthe Flight 182onJune23,1985,whichconstitutedthe reviews. ThefirstwasthetragicbombingofAirIndia national securityissuesprecipitatedseriousinternal under theProgressiveConservativegovernment,two not beenlimitedtopublicinquiries.Inthe1980s, the questbygovernmentsforadviceinthisareahas shaping anddevelopingaccountabilitysystems.But sive governmentsovertheyearsarek regime forthenextdecadeand ahalf. important roleinshapingthe aviationsecurity report (Seaborn1985)isbelieved tohaveplayedan tion security. Focusingstrictlyonefficacyissues,his such agenciesonParliament’s behalf. tions suchasherofficethatarechargedwithscrutinizing security andintelligenceagenciesaswellorganiza- to receivereportscontainingclassifiedinformationfrom security andintelligenceactivities.Inherview, itneeded be abletoscrutinizethespendingandperformanceof Auditor GeneralobservedthatParliament alsoneededto edged thatkey informationhadtobekept secret,the departments andagenciesoverlap.Whilesheacknowl- larly wherethemandatesofanumbergovernment to accountforsecurityandintelligencematters,particu- challenges Parliament facedinholdingthegovernment General SheilaFraserspecificallycommentedonthe r Transport SecurityAuthority, theCrowncorporation r Parliament. 9/11, whichreceivedwidepublicityinandoutside the effectivenessofanti-terrorisminitiativesafter Branch inCSIS. Apparently SIRC oftheCold War-style Counter-Subversion notably one-time-only effortsatrevieworassessment.Most have alsocalledintobeinganumberofadhoc have beendescribing,nationalsecurityactivities Apart fromthepermanentinstitutionaldeviceswe Ad hocreviewforms esponsible forairportscreening.Inthiscontext,Auditor anging andcriticalreviewoftheCanadianAir R The secondreviewaroseout ofstrongcriticismby ecent reviewsbytheOAG includeacriticalauditof , the variouspublicinquiriescalledbysucces 86 1. Whilestrenuouslyresistingapublic In April 2005,theOAG reportedonawide- , too manyCanadians e 87 a ey playersin 88 review ofavia or - - of the initiated intheaftermathof9/11. Sincethepassage important stepintheevolutionofCSIS. Counter-Subversion Branchwasorderedclosed,an its recommendationswereaccepted.Furthermore,the bodies havebeenassuccessful:thevastmajorityof Service 1987;Gill1989).Fewindependentreview Advisory Team ontheCanadianSecurityIntelligence added independentlegitimation(Independent and theinclinationsofsolicitorgeneral,but which wasmadepublic,coincidedwiththatofSIRC civilianized securityservice.Osbaldeston’sadvice, investigate theproblemsexperiencedbynewly r solicitor generalappointedataskforceheadedby b already undersurveillance.Insteadofchoosing they hadcomeintocontactwithsomeonewhowas they weremembersofatargetedgrouporbecause w the statutereviewed byP Instead offollowing thenormalpracticeof having second concernedareviewof thelegislationitself. reviews. Thefirstwasconducted bytheO Since itsinception,CATSA hasundergonetwomajor screening ofnon-passengers atCanadianairports. Canada orabroad.Anothermajorinitiativewasthe on-board belongingsbeforetheytravelledwithin ports ofairpassengersandtheirchecked luggage and and standardizedmodeofscreeningatCanadianair- tion’s principalpurposewastoprovideanimproved lished CATSA asaCrowncorporation.Thelegisla- Canadian AirTransportSecurityAuthorityAct early toknowwhatimpactthesebodieshavehad. terterrorist emphasisinnationalsecurity. Itistoo munities thataremostaffectedbythecurrentcoun with specialattentiontotheMuslimandArabcom- experiences andperspectives—inpractice,nodoubt, communities toprovidegovernmentwithminority draws onrepresentativesofCanada’svariouscultural gence. TheCrossCulturalRoundT panel ofindependentexpertsonsecurityandintelli president’s IntelligenceA on NationalSecurity(modelledtoadegreetheUS icy andperformance.TheNationalAdvisory Council been createdtomeetonaregularbasisreviewpol panels madeupofnongovernmentalpeoplehave advice onitsnationalsecuritypolicies.Twoadvisory mented withaformofquasi-nongovernmental etired seniorpublicservant,GordonOsbaldeston,to etween CSISandtheadviceofitsreviewagency, the ere beingputundersurveillance,eitherbecause More recently, otherformsofreviewhavebeen The enactmentbyP Anti-terrorism Act 30 arliament in2002ofthe , dvisory Board)consistsofa arliament, the A the governmenthasexperi- able onSecurity ct provided AG. The estab- - - - for a five-year review of the new agency’s mandate In this regard, the task force believed that the separation and performance by the minister. The government of the Commission for Public Complaints from the chose to conduct this review by appointing an inde- External Review Committee, which deals with internal pendent advisory panel to the minister of transport matters of discipline and complaints from RCMP mem- with a mandate to review not only CATSA but avia- bers about their working conditions and so on, was tion security in Canada in general, and to report to inadequate, with neither body having sufficient authori- the Air India inquiry on the aviation security aspects ty to compel real action. To rectify this situation, the of that tragedy. The panel’s report was made to the task force recommended the creation of an Independent minister, and then tabled in Parliament (Advisory Commission for Complaints and Oversight of the RCMP. Panel on the Review of the CATSA Act 2006).89 This This body would be established by statute, have official report and CATSA’s annual reports, which are public independence and report publicly. It would have all the documents but not specifically tabled in Parliament, existing functions but would have authorities consistent have received limited attention by Parliament. with those of an ombudsman. It would have the powers In April 2007, the government appointed an inde- to consider complaints, initiate investigations, summon pendent investigator to examine allegations of mis- witnesses and compel testimony, with its recommenda- management of the RCMP’s pension and insurance tions binding on the RCMP commissioner.90 Although plans. Ordinarily such a matter might have been of the government appointed its first civilian commissioner relatively minor importance. However, the investiga- shortly after the independent investigator’s report was tor’s June 2007 report, entitled A Matter of Trust, published, it has yet to initiate responses to the task found broader problems that would have further ram- force’s recommendations. Moreover, some of the recom- ifications. In investigator David Brown’s opinion, the mendations are at odds with those of the Arar RCMP’s management system was “horribly broken,” Commission’s policy review, discussed in detail below, with a command-and-control culture that was exer- to which the government also has yet to respond. cised by an “autocratic leader” who punished whistle- Yet another form of ad hoc review was the blowers. Two factors were responsible for permitting Independent Panel on Canada’s Future Role in the RCMP’s paramilitary structure to go unchecked. Afghanistan, chaired by John Manley, which reported in These were “the absolute power of the Commissioner 2008. From the government’s point of view, this review, and the absence of meaningful oversight of his man- which was surprisingly silent on the role of intelligence A

agement style.” Instead of making specific recom- in counter-insurgency, had the specific purpose of gain- c c o

mendations to resolve specific issues relating only to ing a parliamentary majority for an extension of the u n t

the pension fund scandal, Brown recommended that a military mission in Afghanistan, which was accom- a b i task force be struck to produce a major fix before plished with the support of the official opposition. The l i t rank-and-file morale was sapped further (Clark 2007). Manley report also contains some critical reflections on y i The government responded by doing exactly that. the government’s performance. This latter element points n a n

When the Task Force on Governance and Cultural to a structural problem with all such ad hoc reviews: d f Change in the RCMP reported at the end of the year, it after they are made public, there is no automatic or o r made three fundamental recommendations. First, the compulsory requirement for government to respond to N a t i

RCMP should be established as a separate entity from specific recommendations or advice, or to provide o n a

government with separate employer status, just as is answers to why specific recommendations have been l S the case with CSIS. In this way, it would be able to rejected or ignored. This is often the case with public e c u manage its financial affairs and human resources inquiries, leading former commissioner John Gomery to r i t y

properly. Second, because the task force believed the castigate the government for ignoring many of his rec- , b

RCMP would need to build capacity at nearly every ommendations from his inquiry into the sponsorship y R level within the force, a new civilian board of man- affair. One answer to such concerns might be to establish e g agement would be required to provide overall stew- a procedure whereby the government that called W h i ardship of the organization. This would include inquiries or reviews would be under an obligation — not, t a k oversight of financial affairs, personnel, property, pro- of course, to accept all or any of the recommendations, e r curement, resources and services. The board would be but to provide an answer to Parliament on its response a n accountable for the organization to the minister. Such within a specified period of time. d S t a level of independent responsibility needed to be bal- In 2005, Parliament adopted the Public Servants u a r anced with increased accountability and transparency. Disclosure Protection Act to cover would-be whistle- t F a r s 31 o n IRPP Choices, Vol. 15, no. 9, September 2009 defence fordivulgingclassifiedinformation. secrecy shouldtheywishtoclaima“publicinterest” mation frompersonswhoarepermanentlyboundto under the ic organizations.TheCSEcommissionerisalsoobliged r CSEC arespecificallyexempted. Theyare,however, i ty andintelligencecommunityarecoveredbythisleg- about wrongdoing.Whilemostelementsofthesecuri- bility thatmayresultfromdisclosinginformation b security field. mentary scrutinyoftheexecutive-dominated national stress theimportanceofmaintainingeffectiveparlia- arguments infavourofacommitteeParliament assured andthatpartisanshipcouldbeminimized.The ment wouldbefacilitated,thatsecrecymightbetter broader accesstodocumentsandpeopleingovern- a a not fromtheLibraryofP likely haveitsstaffdrawnfromthepublicservice, the Britishmodelwerefollowed,committeewould such powersasthestatutestipulates.Furthermore,if appointed bytheprimeministerandex be establishedbystatute,haveitsmembership ditional parliamentaryrightsandprivileges.Itwould a although madeupofMPsandsenators,wouldnotbe Morrison 2006).Acommitteeofparliamentarians, liamentarians alongBritishlines(Glees,Davies,and however, recommendedinsteadacommitteeofpar- community. Asubsequentgovernmentpolicypaper, tee toscrutinizeCanada’ssecurityandintelligence was aproposaltoestablishparliamentarycommit- Among itsrecommendationstooffsetthisdeficiency address whatitperceivedasthe“democraticdeficit.” One oftheMartingovernment’sinitiativeswasto parliamentarians? A cluding sectionofpolicyrecommendations,below proposal couldbeimplemented. Thecurrentgovern tions, discussed inthefollowingsection. wider rangeof currentaccountabilityrecommenda- has yettobemetasthegovernment contemplatesa on appointingsomeformof committee.Thispromise ment hasindicatedthatittoo wouldfollowthrough slation, includingreviewbodies,bothCSISandthe equired toestablishsimilarproceduresfortheirspecif- lowers. Itprotectspublicsectoremployeesfromlia- parliamentary committeerestsonthebeliefthat nonpartisan bodyindependentoftheexecutive. committee ofParliament capableofexercising tra- committee ofParliament oracommitteeof The caseforacommitteeofparliamentariansover In anyevent,theMartingovernmentfellbeforeits Security ofInformationAct 9 1 We assessthealternativesinourcon- arliament’s ResearchBranch, to receiveinfor- ercise only . - O’Connor: reference includedasecondpartthatmandated complicity ofCanadianofficials.Theinquiry’sterms Commission, intothefactssurroundingpossible commission of inquiry, Arar the as known Dennis O’Connorwaseventuallyappointedtoleada tortured beforehisreleasealmostayearlater. Justice sent toSyria,wherehewasheldinconfinementand authorities whileintransitataNewYork airport and Maher Arar, aCanadiancitizenabductedbyUS “extraordinary the was scandal The rendition” of efficacy, on than orevenonbothconsideredtogether. Once again,thefocushasbeenonproprietyrather regime thathasbeenfoundwantingunderpressure. p has ledtoaspecialpublicinquiry, followedbyapro- I Reform Agenda The Post-Arar Accountability Thus, O’Connor offeredasystem-widereform of trum, ratherthanex security reviewacrosstheentire institutionalspec date ascallingforrecommendations onnational investigations. O’Connorchose tointerprethisman- RCMP aleadingforceinintegratedanti-terrorist ly notsubjecttolawenforcementandhadmadethe which hadcriminalizedformsofbehaviourprevious- made evenmoreimportantbythe player inOttawa’snationalsecurityactivities,one accountability toincludeforthefirsttimealeading scandal. Ararofferedanopportunitytoexpand the Commission forPublicComplaints,establishedafter with itsnewaccountabilityregime.TheRCMP national securityactivitieswhenCSISwascreated had entirelyescapedaccountabilityforitscontinuing leading toArar’sordeal.Asnotedearlier, theRCMP osed reformagendaforanexistingaccountability A CSIS Act national securityaccountability:ascandal has returnedonceagaintotheevolutionof n review mechanisms. mechanism wouldinteractwithexisting and (ii)anassessmentofhowthereview international, forthatreviewmechanism, examination ofmodels,bothdomesticand respect tonationalsecuritybasedon(i)an the RoyalCanadianMountedPolice with length reviewmechanismfortheactivitiesof considers advisableonanindependent,arm’s (b) tomake anyrecommendationsthathe Officials inRelationtoMaherArar2004) Inquiry intotheActions ofCanadian ctions bytheRCMPlayatheartofevents the post-9/11 environment,afamiliarrhythm , 32 failed tomeetthechallengeofArar clusively focusingontheRCMP. 92 (Commission of Anti-terrorism Act - , national security review rather than a narrowly insti- themselves form a relatively small proportion of its tution-bound prescription, but one that did not con- overall workload. This was of course the reasoning sider a role for Parliament. behind the separation of the security service from the In pursuing a wider scope, O’Connor was address- RCMP in 1984. The RCMP and the government have ing a key new feature of national security activities recognized that the arm’s-length relationship regarding in the post-9/11 environment: integration of anti-ter- criminal law enforcement cannot and should not be rorist efforts — across federal agencies and depart- maintained with regard to national security investiga- ments, across governments in Canada and across tions. Indeed, ministerial directives guide the RCMP in borders in joint activities with allies. Since the terror- its conduct of national security investigations. But ist threat is said to be borderless and globally net- external review of the RCMP’s national security activi- worked, effective counterterrorist responses must ties faces the problem of applying a mechanism created overcome traditional institutional and jurisdictional with one kind of activity in mind to an agency most of “stovepipes.” CIA-FBI conflict had contributed to the whose activities do not correspond with this focus and intelligence failure of 9/11, as the US 9/11 follow a different set of rules with regard to relations Commission had found (National Commission on with government. Terrorist Attacks upon the United States 2004). In When O’Connor chose between review options, a Canada, turf wars between the RCMP and CSIS had non-starter was the status quo: that is, leaving the contributed to the failures both to prevent the 1985 RCMP Commission for Public Complaints (CPC) in Air India bombing and to prosecute the alleged per- place under current rules. This body had failed to deal petrators. These lessons were now being addressed by with the Arar affair, and the former chair of the CPC the agencies charged with counterterrorism, and by was on the public record describing the existing an unprecedented (but perhaps still inadequate) process as dysfunctional (Sallot 2005; Shephard degree of interagency cooperation.93 The new inves- 2005).94 If the CPC were to remain in place, it would tigative philosophy promises greater effectiveness but have to be beefed up with powers appropriate to an also presents a problem in designing a new review enlarged post-9/11 workload and shorn of the weak- system focused only on an RCMP that is increasingly nesses in the existing body. Other options would still operationally integrated in an institutional sense with have to address the issue of the integration of RCMP other players in the process, including those at the national security activities with other agencies. A

provincial and municipal levels and outside Canada. A “Super SIRC” option was discussed, in which SIRC c c o

A distinct danger to avoid is the lowering of inves- would be expanded beyond its institutional focus on u n t

tigative standards in criminal cases where prosecu- CSIS to include the RCMP and other agencies engaged a b i tion, not intelligence gathering, is the aim, which in national security operations. SIRC might be a model l i t might be brought about by the possibility of informa- that, with appropriate additional resources and y i tion being derived from intelligence agencies operat- enlarged powers, could provide external review of n a n ing under different and lower investigative standards. national security operations on a functional, rather d f The Arar Commission also recognized that the than institutional, basis. In effect, a “Super SIRC” could o r

RCMP was following a trend among law enforcement replace the CPC, perhaps replace the CSE commissioner N a t i agencies throughout the Western world by adopting and expand its review capacity to the national security o n a

a model of intelligence-led policing. In the area of activities of all government departments and agencies l S national security, the RCMP would be expected to with a national security footprint. This was the pre- e c u engage in intelligence gathering in close collabora- ferred option of the outside experts consulted by the r i t y

tion with other agencies, both domestic and foreign, Arar Commission, as well as of the public intervenors , b that were primary intelligence producers. This makes who testified and presented written submissions. The y R drawing clear lines of accountability focused along reason most often advanced for this preference was e g institutional boundaries more problematic than in improved accountability for propriety, although the W h i the past. potential of a more comprehensive spotlight on all t a k

The principle of police independence with regard to national security activities was also indicated. e r criminal law enforcement, which continues to account Ultimately, O’Connor judged this option to be unrealis- a n for most of the RCMP’s time and resources, presents tic. Despite its emphasis on integrated operations, the d S t certain difficulties in establishing greater accountabil- government had not actually integrated the various u a r ity for the force’s national security activities, which agencies engaged in national security into a single con- t F a r s 33 o n IRPP Choices, Vol. 15, no. 9, September 2009 of thefederal government withsignificant rolesin plaint investigations. the ministeronitsself-initiated reviewsandcom before Parliament, andwouldalsoissueareport to ter the governmenttotestneedforconfidentiality to appointsecurity-clearedcounselindependentof security confidentiality, ICRAwouldhavediscretion representations athearings.Inthecaseofnational and theRCMPwouldhaveopportunitytomake ICRA conductthereviewitself.Bothcomplainant investigation, butacomplainantcouldrequestthat Officials inRelationtoMaherArar2006a,539). (Commission ofInquiryintotheA ongoing criminalinvestigationorprosecution” investigation orreviewbecauseitwillinterferewithan pendence, ICRAwouldalsohavethe“powertostayan grams. Taking accountoftheprinciplepoliceinde- initiate researchandconductpubliceducationpro power tosubpoenadocumentsandcompeltestimony similar tothoseunderthe isterial request.ICRAwouldhaveinvestigativepowers integrated operations;andconductreviewsuponmin- joint reviewswithSIRCandtheCSEcommissionerinto self-initiated reviews;investigatecomplaints;conduct Agency (ICRA).ICRAwouldhavetheabilitytoconduct Independent ComplaintsandNationalSecurityReview the RCMPwouldbesignificantlyrestructuredas entry tothecomplaintsprocessforpublic. existing reviewbodiesandofferasinglefocusof vation: acommitteetocoordinatetheactivitiesof one institutiontoanother, andaninstitutionalinno- mit areviewbodytofollowtrailofevidencefrom include theconceptof“statutorygateways”thatper- dedicated institutionalfocus.Keystothiscompromise review ofnationalsecuritywiththeadvantagesa that marriestheadvantagesofgovernment-wide zational cultureofthebodiestheyarereviewing. cific reviewbodiestolearnwithexperiencetheorgani- i review mightbebetterdesignedifitmirroredthese m agencies whileretainingtheirseparateidentitiesand for cooperationandcommunicationbetweenexisting ties, butwasrelyinginsteadonimprovedmechanisms s nstitutional arrangementsandpermittedagency-spe- olidation ofCSIS,theRCMP, theCSEandotherenti- andates. Asaresult,itwasthoughtthatexternal , O’Connor identified fivedepartmentsoragencies ICRA wouldissueareportannuallytotheminis- The oldCommissionforPublicComplaintsagainst The ArarCommissionrecommendedasolution Complaints couldstillbereferredtotheRCMPfor a disclosable versionofwhich wouldbelaid Inquiries A ctions ofCanadian ct , including the - - . , national securityactivities.Significantly for provincialandmunicipalpoliceinvolvedin discussion forcooperativereviewwithbodies ducting publicinformationprograms;andinitiating Canada, includingtheeffectsonhumanrights;con- issues andtrendsintheareaofnationalsecurity system forcomplaints;reportingonaccountability avoiding duplicatereviews;providingasingleintake sure thestatutorygatewaysoperateeffectively; would haveamandatethatincludemaking missioner, withanoutsidepersontoactaschair, ing thechairsofICRAandSIRCCSEcom- Review CoordinatingCommittee(INSRCC),compris- reports. Anewbody, theIntegratedNationalSecurity investigations andcoordinationinthepreparationof mation, referralofinvestigations,conductjoint review bodieswouldprovideforexchange ofinfor- sometimes beenquestioned. might havebeenincludedbecausetheirefficacyhas though havingnoinvestigativeorcoercivepowers, its InternationalAssessmentStaff(IAS),which, from thislistwerethePrivyCouncilOffice(PCO)and m Agency (CBSA), whichexercises somelawenforce- r ignated tohavetheirnationalsecurityactivities Canada, FinTRAC andForeignAffairswouldbedes- Citizenship andImmigrationCanada,Transport n of reviewforefficacy crucial tonotethatheexplicitlyforecloseddiscussion about theefficacy oftheRCMP’snational security inquiry “with the goalofmakingrecommendations rise tothisInquiry.” Thus,hedidnot conductthe of actionstak “Itwasconcernaboutthepropriety rily forpropriety: O’Connor interpretedhismandate asareviewprima in accordwiththepolicyobjectivesofgovernment). cy oftheagency’sactivities(whetheritsare with lawandethicalstandards)butlessontheeffica- on propriety(whethertheagencyactsinaccordance pattern ofscandalelicitingreformsthatfocusmore mandate. TheArarCommissionfallsintothefamiliar on proprietyalone,whichhetooktobehisparticular Relation toMaherArar2006b Inquiry intotheActions ofCanadianOfficialsin work afteraperiodoffiveyears(Commission Parliament —beappointedtoreviewthenewframe- recommended that“an independentperson”—not eviewed bySIRC.TheCanadaBorderServices ational securitythatshouldbesubjecttoreview: ent powers,wouldbereviewedbyICRA.Omitted “Statutory gateways”amongthenationalsecurity In assessingO’Connor’srecommendations,itis 34 en withrespecttoMaherArar thatgave , in favourofanarrowerfocus 95 , 22). , O’Connor - activities, and I am therefore not in a position to stronger form of accountability, of which national evaluate whether an independent review mechanism security review will be one part. is needed from this perspective.” He does go on to Another timely and important contribution is the admit that “issues of efficacy and propriety are inter- emphasis on cross-institutional integration of national woven” and that “while efficacy will not be the pri- security activities and the requirement for accountability mary objective of the review mechanism I to reach across narrow institutional boundaries. Whether recommend, it will in many cases be a necessary ele- the solutions offered by O’Connor constitute the best ment of a robust review for propriety” (Commission practices remains to be seen, but they are the only ideas of Inquiry into the Actions of Canadian Officials in yet on offer from any officially sanctioned inquiry. There Relation to Maher Arar 2006b, 467). were two after the Arar Commission: the Iacobucci This constitutes a serious shortcoming in the recom- Internal Inquiry, which had no mandate to review policy, mendations for new review procedures, in that those and the commission of inquiry into the 1985 Air India conceived by O’Connor apply only to matters of propri- tragedy, which has yet to report, but in any event is ety. In this regard, the commission made a distinction focused on the situation more than two decades ago. between review and oversight, terms it defined in a par- There are a number of gaps and limitations in the ticular way. To O’Connor, review meant examining Arar Commission’s policy recommendations. For one, operations after the fact, as opposed to oversight, which O’Connor interpreted his mandate as excluding consid- he interpreted as including a degree of involvement in eration of a proposed national security committee of ongoing investigations. The latter course was rejected, parliamentarians or a standing committee of for a variety of reasons, most convincingly because of Parliament. The question of how the proposed changes concern about the reviewers becoming entangled in the would fit with an expanded and enhanced parliamen- evidentiary trail they are supposed to review. Review for tary role is essential. propriety is concerned with identifying illegal or unethi- The failure to address review for efficacy has conse- cal actions and might thus be considered a quasi-judi- quences. In recent years, some of the most crucial ques- cial function. As such, it is important that those carrying tions that have required external independent review out the review have no prior involvement in the matters have been precisely those of efficacy arising out of cata- being reviewed. To take a hypothetical example: if a strophic intelligence failures. For example, the 9/11 review body was regularly notified of ongoing surveil- attacks in the US caused the 9/11 Commission to focus A

lance targets, its capacity to impartially review a com- on the inefficacy of US intelligence and to recommend c c o

plaint regarding surveillance might be called into reforms to address these serious deficiencies (National u n t

question. Thus, almost all the review envisaged in the Commission on Terrorist Attacks upon the United States a b i

O’Connor report is ex post facto, with only minor excep- 2004). In Canada, the Major Commission on the Air India l i t tions where some reference to continuing investigations tragedy is almost entirely focused on the efficacy rather y i may be unavoidable. While this may be appropriate for than the propriety of Canadian national security. An ear- n a n propriety reviews, which demand a degree of quasi-judi- lier SIRC investigation into Air India was postponed at d f cial impartiality, it is unlikely that review for efficacy the request of the government until it was no longer o r will be effective without some involvement by the timely, a poor reflection on SIRC, as its first chair, Ron N a t i reviewers at earlier stages in the process. Atkey, has subsequently admitted (Clark 2005). o n a

The extension of accountability to include the Ironically, in the one place where O’Connor refers to l S national security activities of the RCMP is long over- the proposed parliamentary committee, it is to suggest e c u due, and indeed should have formed part of the 1984 that it might be a more appropriate venue for efficacy r i t y

reforms. It was always a fallacy to imagine that sepa- reviews, thus potentially tying together the two most , b rating security intelligence from law enforcement and obvious pieces of unfinished business in his report y R subjecting only the former to effective accountability (Commission of Inquiry into the Actions of Canadian e g could resolve the fundamental issues.96 In any event, Officials in Relation to Maher Arar 2006b, 467). This W h i rising demands for RCMP accountability in criminal offers an appropriate place to move toward our conclu- t a k law enforcement have become irresistible. The sions on the state of accountability in national security e r appointment of the first civilian commissioner, with a and our policy recommendations for the future. The a n mandate to impose greater transparency, and external Harper Conservative government, which accepted unre- d S t probes into internal conflicts in the RCMP (as detailed servedly all the recommendations of O’Connor’s factual u a r above) all point toward the imposition of some inquiry and quickly set about acting upon them, has yet t F a r s 35 o n IRPP Choices, Vol. 15, no. 9, September 2009 A System ofAccountability What We KnowabouttheCurrent remains opentopolicyadvice. tions. Therefore,thefutureshapeofaccountability review, or eventogiveanyclearsignalofitsinten- t the CBSA receivenoexternalindependent reviewona others suchastheIAS,most of NationalDefenceand the CSECisreviewedbyone body, once ayear. Still attention frombothSIRCand theIG.Bycomparison, spotlight. CSIS,forexample, receives considerable a several differentbodies,otherseitherarescrutinizedby duce similarproblemsinthefuture. addition ofnewreviewandoversightbodiesmaypro- While thisproblemappearstohavebeenrectified,the to IG’s certificateswerenotconsideredbySIRCintime timing oftheirannualreportsoftenmeantthatthe any reallydetailedway restrained intheircapacitytorespondquestions bodies havecomebeforeP been thepractice.Evenwhenindependentreview honest answers,fullresponsestoquestionshavenot authority tocallanybodytestifyandexpect bodies themselves.ThoughP deficit hasbeenevidentinthepastamongreview ies establishedbystatuteismostnoticeable,thesame tions betweenParliament andthevariousreviewbod- of thekey elements.Whilethelackofgoodconnec- reasons. First,therearepoorlinkagesbetweenmany or networkofaccountabilityprocedures,fortwomain plex, wecannottalkabouttheexistenceofasystem brief assessments. standable, transparentandpublic.Belowaresome Canada’s securityandintelligencecommunityunder- establishing thedegreetowhichtheyhavemade which reportinitiallytotheminister tion fromher. InthecaseofSIRCandIG,both Parliament mustbeabletoreceiveclassifiedinforma- Also, theAuditorGeneralisonrecordassayingthat ple, withSIRCatthetimeoffive-yearreview. o single institutionorremaincompletelyoutofthe respond totherecommendationsofpolicy be includedinSIRC’sreportforthesameyear Second, whilesomeinstitutionsarescrutinizedby Alhough theaccountabilityproceduresarecom- rent accountabilityprocedures,withaviewto a t the beginningofthispaper, weputforward series ofquestionsaboutthenaturecur- . Such wasthecase,forexam arliament, theyhavefelt arliament hasthelegal , until recentlythe . - in technologyoragencymandatesareconcerned. adequate. Thisisparticularlyimportantwherechanges annual basiswhethertheexistingapplicablelawsare required undertheirmandatestoevaluateonan of propriety ters adequatelybeforethefact.Thisappliestoissues appears tobemissingisbodiesthatcanexaminemat- examined onlyefficacyissues.Inallcases,what would includecertaincommissionsofinquiry have aresponsibilityforboth.Athirdgroup,which to theproprietyofpastactions.Some,suchasSIRC, Commissioner haveastatutoryremitthatlooksonly efficacy plaints andmake recommendationsregardingpolicy. the publicatlarge.Stillothersinvestigatecom- bers ofParliament, otherreviewbodies,themediaand actors —officialswithintheexecutive branch,mem- practices andtoprovideaccountsvariouspolitical within thelaw. Othersaretheretoscrutinizeparticular that particularintelligence-gatheringtechniquesfall judicial approvalofwarrants,aredesignedtoensure ably intheirstrategicobjectives.Some,suchasthe management practices;thoseoutsidevaryconsider- to havemoredowithensuringsoundcontroland that operateinsideit.Thepurposeofthelatterappears that operateoutsidetheexecutive branchandthose that areinplace.Thefirstisbetweenthoseprocedures nated fromaforeignintelligenceservice. v remain secure.Similarly, SIRChassometimesbeenpre- t for example,hasbeenpreventedfromseeingcertain everything thelawsuggeststheyshould.Parliament, ing suchscrutiny, reviewbodiesmaynotinpracticesee r policy initiatives ratherthanbystatute.There are ability mechanisms havebeenestablished through By comparison,mostofthe current internalaccount- Defence mighteasilychange withadifferentchair Standing CommitteeonNational Securityand ence changed.Similarly Justice andHumanRights,orhaveitstermsofrefer- banded byitsparent,theStandingCommitteeon committee onNationalSecuritycouldeasilybedis- this generalrule.TheHouseofCommonsSub- lished bystatute.Thereareexceptions, however, to independent externalreviewbodiesarenowestab- manent andthosethataretemporary. Mostofthe hings becauseitcouldnotguaranteethattheywould egular basis.Furthermore,whenitcomestoconduct- ented fromseeingcertaininformationbecauseitorigi- A Another importantdivideconcernsproprietyand There arethreekey dividesamongtheprocedures final divideconcernsinstitutionsthatareper . Some reviewbodieslike theOfficeofCSE , where reviewbodiesarenotexplicitly 36 , the approachofSenate’s , have - . also exceptions, the IG being one, to this general rule. Given that there has been no external attempt since 1990 Many of the accountability mechanisms that have to re-evaluate SIRC’s methodologies, it is impossible to been used are of a temporary nature. Commissions of tell whether this was a mere aberration or something inquiry, task forces and independent panels, which more serious. Similarly, during the five-year review are all normally established by executive order, die process, when faced with a special committee that tended with the completion of their reports, as do statutory toward recommending collapsing the role of the IG into reviews of legislation by parliamentary committees or SIRC, the Minister impressed on the special committee the the work of special committees once completed. importance of the work provided by the IG. Yet at least While Parliament may of course take up any matter it two inspectors general subsequently ran into difficulties chooses, it seldom does go back over such completed fulfilling the office’s mandate, failing in this regard to work, leaving it instead to be reviewed by others, receive adequate support from their minister; at one sometimes by the auditor general where appropriate. point, the office was left vacant for over a year. It is thus This is unfortunate as the terms of reference of such difficult to gauge whether a separate office really is nec- bodies are normally set by executive order and may essary or whether subsequent incumbents have been co- not be of the widest remit. Recent commissions of opted by CSIS. In addition, the gap means that there is no inquiry suggest, in fact, that closer scrutiny needs to body that evaluates what has happened to all the recom- be given to such terms of reference, not only for the mendations that the various review bodies have made. breadth of their obligations but also for how they True, each of them can revisit its recommendations in have been interpreted.97 There is now only an obliga- subsequent annual reports, but their capacity to effect tion on the part of the executive branch to respond to change, particularly where it relates to more than one House of Commons committee reports within a set national security agency, is limited. time. Arguably, there is a need to follow up all such Many of the problems identified above might be reports, as well as Senate committee reports, after a resolved through a much greater parliamentary role. But reasonable period to establish how the government we are under no illusions that this will be an easy matter. has responded to their various recommendations. Parliament has its own organizational culture, one that at We can also point to a fundamental gap in the best is ambivalent toward security and intelligence scruti- overall system. There is no single body outside the ny. As indicated, the conflicted role that parliamentarians executive branch with the capacity or responsibility perform — to support or oppose the government on the A

to examine the whole security and intelligence com- one hand, versus scrutinizing government activity on the c c o

munity for both its efficacy and propriety. Arguably, other — is not necessarily conducive to the careful analy- u n t

this is of crucial importance as there are a growing sis of the secret world with a view to establishing a b i number of areas where many elements of the com- whether it operates both to protect national security and l i t munity need to work together; the provision of secu- in the interests of all Canadians. To be sure, we can y i rity for the 2010 Olympic games in Vancouver- expect most parliamentarians to deal with “fire alarms” n a n

Whistler and support for Canadian Forces in but not necessarily to do the “police patrolling” type of d f Afghanistan are good examples. In such instances, oversight that is necessary. But not all legislators are like- o r there needs to be consistency of policy, coordination ly to approach their work from the same perspective. As N a t i of the analytical process and general collaborative Loch Johnson has recently suggested, legislators may o n a

effort. The OAG answers to this description best, but approach the scrutiny of intelligence from quite different l S its purview extends only to the efficacy aspects of perspectives. He classifies them as “ostriches” (those e c u organizations. Similarly, on the propriety side there demonstrating a benign neglect toward intelligence agen- r i t y

are several ombuds-like offices. But these deal only cies); “cheerleaders” (those who act as “boosters” for the , b with very specific dimensions — human rights, priva- intelligence community); “lemon suckers” (those who are y R cy, access to information, official languages — of inherently skeptical of both intelligence practices and the e g organizations across government. value of intelligence); and finally “guardians” (individu- W h i

This gap in the overall system also means there is no als who are both partners and critics of the intelligence t a k body that can evaluate whether all the various review community). Furthermore, he posits that particular over- e r bodies are working as their instigators intended. In fact, seers have fluctuated between these various identities a n there have been clues in the past suggesting that all (Johnson 2008). The trick, therefore, will be to find suffi- d S t was not well. The five-year review process found an cient numbers of individuals who are consistently pre- u a r example of SIRC exhibiting poor research methods. pared to act as “guardians.” t F a r s 37 o n IRPP Choices, Vol. 15, no. 9, September 2009 may haveperverseeffectsontheoperationsofgovern the questforgreateraccountabilityasanendinitself sponsorship affairandtheGomeryCommissiontestify, good inandofitself.Indeed,astheaftermath of accountabilityemphasizeproprietyoverefficacy. tices routinelygounexamined.Overall,thesystems security andintelligencecommunitytheirprac- Significantly easy rationalizationaroundcoherentprinciples. fashion, resultinginacomplexpatchworkthatdefies oped inanadhoc,piecemealanduncoordinated in acontextofpubliccontroversy Canada inanswertospecificconcerns,oftenvoiced accountability innationalsecurityhavearisen to demandsforgreateraccountability. Formsof cultural contextandonthespecificissuesgivingrise tions dependingonthepolitical,institutionaland mechanisms, eachofwhichanswersdifferingques- useful tospeakof“accountabilities,” anumberof definition ofaccountability;insteadwefinditmore complexity. Thereisnosingle,generallyagreed-upon accountable isthatthisamatterofconsiderable n various proceduresdevelopedinCanadatomake O Recommendations Conclusions andPolicy exhausted. Thefailuretoprovide effectiveaccounta has demonstratedthatthisagenda isbynomeans processes forCSISfollowed. TheArarCommission propriety. The most significantpolicyresponsetoconcernsabout fabric ofliberaldemocracy tive impactonhumanrights,civillibertiesandthe over abuseofthesepowersandthepotentiallynega- secrecy of extraordinarypowers,cloaked inunusuallevels of most oftenbyconcernoverimpropriety. Theexercise accountability innationalsecurityhasbeendriven mental questions:Whyaccountability, what? for and ment. Instead,weshouldbeginbyaskingthefunda- the accountability architecturepreviously erected. demonstrated theincomplete, patchworkqualityof bility fortheRCMP’snational securityactivities ational securityactivitiesofthefederalgovernment It wouldbefutiletoseekaccountabilityperse,asa The McDonaldCommissionlaidthebasisfor As wehaveseen,historicallythequestforgreater , accountability andoftheevolution from ourdiscussionoftheconcept n has fromtimetogivenriseanxieties e observation thatmayreadilybedrawn , certain organizationswithinCanada’s CSIS Act and newaccountability . 98 , and havedevel - - - M surprisingly well astotheex accountability towhom,particularlyP for efficacy;andthepoorlyansweredquestionof out: thealmostuntouchedmatterofaccountability business, twoofwhichwewouldparticularlysingle distract attentionfrombiggerpiecesofunfinished tion tothisrelativelywell-wornreformagendanot important tokeep inmind,butitiscrucialthatatten- Commission report. expected responsetothesecondpartofArar be implementedbythegovernmentaspartofits bodies, arethebestproposalsontableandshould nating Committeetodirecttrafficbetweenthereview new IntegratedNationalSecurityReviewCoordi- of statutorygatewaysamongthereviewbodiesanda effective RCMPcomplaintsbody, alongwithasystem O’Connor’s recommendationsforanenhancedand a dictional lines,bothwithinthefederalgovernment t better integratereviewofnationalsecurityopera- bility forproprietybycallingmechanismsthat tions tothebroaderunfinishedbusinessofaccounta- ty andintimidatecoerce.P the process,withcapacitytointrudeoncivilsocie collectors ofintelligence—thoseonthesharpend forget thatthe fundamentalpurposeofthe formeris and therequirements ofdemocracy:wemust never “Canada mustmeetboththe requirementsofsecurity ance. Y mendations attendedmainly torestoringthatbal- freedom inthenameofsecurity result ofthebalancebeingtippedtoofaragainst the problemsthatinquiryhadtoaddresswere pointed wasbetweenfreedomandsecurity. Mostof The famousanddelicatebalancetowhichMcDonald The McDonaldCommissionwaswellawareofthis. issues, taken inisolation,canbemisleadingguides. nature ofnationalsecurityactivities.Yet propriety tified, andwillcontinuetobejustified,bythevery bodies witharoleinnationalsecurityandintelligence. remit coveringthecapacityandperformanceofall Examining forefficacywouldrequireamuchbroader lection withinCanadaarenotroutinelyconsidered. community thatdonotparticipateinintelligencecol- quence, severalelementsoftheintelligence ions, whichareincreasinglyintegratedacrossjuris- nd betweenthefederalandothergovernments. oreover, O’Connorhaspointedinhisrecommenda- The persistentemphasisonproprietyhasmeant,not The unfinishedbusinessofreviewforproprietyis The concernoverproprietyhascertainlybeenjus- et, astheMcDonaldCommission stated, , that greaterattentionhasbeenpaidtothe 38 ecutive branch. erhaps asaconse , and theirrecom arliament, as - - - to secure the latter...Canada must have effective secu- Investigations of complaints of possible impropriety, as rity. Security measures have the basic objective of well as assessments of whether national security activi- securing our democratic system” (Commission of ties are being carried out legally and ethically, call for Inquiry concerning Certain Activities of the Royal quasi-judicial impartiality and political detachment on Canadian Mounted Police 1981, 1:43, 47). the part of the reviewers. It is no doubt unrealistic to Democracy can be undermined by unchecked pur- expect that Parliament will voluntarily abstain from suit of security. Yet security can be undermined by any intervention when “fire alarms” go off. The trick exclusive concern with democratic freedoms. In the will be to have a system in which it holds back until contemporary era of terrorism, inadequate security after an independent review body has done its job. A could mean that citizens might suffer the worst possi- watching and waiting role for Parliament in such ble violation of their human rights, the loss of their instances would also ensure that the independent very lives (as indeed happened to the victims of the review body would not delay its investigation, as was Air India bombing in 1985). But more to the immedi- the unfortunate case with SIRC and Air India. If there ate point, in order to strike the appropriate balance, are clear advantages to political detachment in assess- Parliament and an informed citizenry must be able to ing propriety questions, when it comes to assessing assess not only the freedom side, but also the security efficacy, it is precisely political involvement that is side. Accountability must encompass not only propri- required where public policy is fundamentally at stake. ety issues but also efficacy issues. Is security being To illustrate this point, we might take one well-known adequately protected? Are the agencies charged with recent example from the US. The spectacular intelligence this responsibility doing an effective job? Is the public failure concerning the weapons of mass destruction receiving value for money? What needs to be done to allegedly held by Saddam Hussein’s regime in Iraq was improve security? These questions may be addressed at the centre of the fateful decision to go to war in Iraq by the various external review agencies already in without international sanction. Was this failure the prod- play, such as SIRC and the OAG, as well as internal uct of the intelligence agencies’ own shortcomings, or reviewers like the IG for CSIS; or by parliamentary was it, as many observers have concluded, the result of committees like the Senate committee on national the administration pressuring the agencies to produce security under Colin Kenny; or by occasional public intelligence on demand to meet political objectives? inquiries. How adequately they have been addressed is Although inquiries by the US Senate Intelligence A

another matter. There certainly are doubts about the Committee in 2004 and 2006 faltered amid partisan con- c c o

erratic quality of such inquiries, the failure of overall siderations, there was no place where this tangled knot u n t

direction and coordination, and the lack of continuity. of political and intelligence issues could be more appro- a b i

But there is a deeper problem. These specific effica- priately addressed than in Congress. l i t cy questions fall within the larger question of national To take another example from the Canadian context, y i security policy. Are the policy objectives set by gov- the failure of Parliament to address the efficacy of n a n ernment the correct ones? Are the agencies being use- security and intelligence in the Air India tragedy in d f fully tasked? Has government used the intelligence 1985 ultimately led to the calling of a public inquiry o r and threat assessments it has received from its agen- more than two decades later, long past the point when N a t i cies appropriately? Once the line is crossed into mat- lessons learned could have been usefully applied, and o n a

ters of public policy, external review bodies become in the context of long built-up resentment on the part l S powerless. They must maintain policy neutrality or of the victims’ families at the apparent indifference of e c u lose their apolitical status, and thus their legitimacy. authorities to their losses. Given the importance of r i t y

There is only one body that has every right and duty public policy considerations (the separation of CSIS , b not only to comment upon but also to participate in from the RCMP; issues about intelligence being focused y R the making of public policy, and that is Parliament. on Cold War versus terrorist targets) in assessing the e g

Recall that O’Connor in his policy review suggested intelligence failure, it is difficult to see any more W h i that the two subjects he had deliberately neglected in appropriate body than Parliament to have carried out t a k his recommendations — review for efficacy and the such an inquiry, not into the factual details but into the e r role of Parliament — might fruitfully be combined. broad policy implications. a n There are reasons why Parliament should defer to The proposal of the former Liberal government for a d S t external, independent, arm’s-length review bodies for national security committee of parliamentarians has not u a r detailed and careful assessment of propriety issues. yet been acted upon by the present Conservative gov- t F a r s 39 o n IRPP Choices, Vol. 15, no. 9, September 2009 the ex efficacy ofnationalsecurityactivitiescarriedoutby branch thatwouldbecrucialwhenreviewingthe establish adegreeofautonomyfromtheex Parliament, whichcould,ifexercised effectively, would carrywithittherightsandprivilegesof 2007). AcommitteeofParliament, ontheotherhand, for thecommittee(Phythian2007: Davies2002;Gill ed toParliament. ThePMwouldalsoselectthestaff their findingsandrecommendationswouldbereport- appoint themembersanddeterminehowmuchof report, iftheUKmodelisanyguide.ThePMwould of theprimeminister, towhomthecommitteewould House ortheSenate,itwouldbetoomuchacreature former maybelimitedtoparliamentarians,fromthe mittee ofParliament. Althoughthepersonnelof committee ofparliamentarians,asopposedtoacom- security committee.We donotendorsetheideaofa must bemetifParliament istoplayanenhancedrole. d in principle,butasalwaysinstitutionalreform,the b some formofgreaterparliamentaryparticipationwill national securitymatters.We take itasagiventhat ised toincreasetheparticipationofParliament in e established bystatutewould bindP dures tobefollowed.Significantly, acommittee This statutewouldalsospelloutthesecurityproce to Parliament atitsdiscretion(butleastannually). ligence community, andhavethecapacitytoreport remit withpurviewovertheentiresecurityandintel- mittee wouldbeestablishedbystatute,haveabroad model ratherthanthatofNewZealand.Suchacom- preference issomethingclosertotheAustralian tee, includingbothAustraliaandNewZealand.Our tary autonomyisimportanttopreserve. government inoffice.Buttheprincipleofparliamen- mentarians wouldnodoubtbeaneasierselltoa minimized. Inthiscontext,acommitteeofparlia- high levelsofpartisancompetitionshouldnotbe of successiveminorityP autonomous committeeofP surrounding theestablishmentofarelatively committee of both HouseandSenate,which would such astheSubcommitteeon NationalSecurity. fully avoidthepastinadequacies ofadhocresponses a rnment, althoughasapartytheConservativesprom- evil isinthedetails.Therearecertainconditionsthat e specific jobonaregularbasis. Thus,itwouldhope- First istherelationshiptoParliament ofanational Several countrieshaveestablishedsuchacommit- A brought forwardinthenearfuture.Thisislaudable national security committeeshouldbeajoint ecutive. 99 T o be sure,thepoliticaldifficulties arliaments withattendant arliament duringaperiod arliament todoing ecutive - critical distancefromtheex criticism ofgovernmentpolicyandperformance.A need notimplyinanywaythemutingorsilencingof considerations wouldhavetobeminimized.This effective operationofsuchacommittee.P dition formeaningfulparticipationintheprocess. insiders involvessometrade-offsbutisanecessarycon- the greaterburdenofirrelevance.Becomingpartial qua non material. Remainingoutsidetheloop,however have learnedasaresultoftheiraccesstoclassified rity policyandperformanceonthebasisofallthatthey autonomy asparliamentarianstopubliclydiscusssecu- they willinevitablyexperiencelimitationsontheir “inside theloop”ofOttawasecuritysystem.Assuch, paid: membersofsuchacommitteewillbetoanextent lar parliamentarycommittees.Thereisapricetobe ditions thatarehigherthanforthoseineffectregu- must operateanddeliberateunderspecialsecuritycon- staffs ofexternalreviewbodieslike SIRC.Committees staff mustbesecurityclearedtothesamelevelas obligations ofsecrecywhererequired.Anycommittee classification, andmustthereforestrictlyabidebyallthe access toallrelevantinformation,atwhateverlevelof committees. Mostimportant,itsmembersmusthave should beseenasaspecialcaseamongparliamentary greater freedomfrompartisantiesofsenators. o from electiontoelection.Thedemocraticlegitimacy membership, giventhehighturnoverrateofMPs ence ofsenatorscouldalsolendgreatercontinuityto i debate intheHouse ontheextensionof preven recently ofalapse intopartisanshipinthe deplorable the mostpart,butthereisa worryingexample Canada hasbeenmercifully freeofthismaladyfor McCarthy eratothepresent eraofthewaronterror. of nationalsecurityissues,from theColdW examples oftheeffectspartisanpoliticization alty tothenation.TheUSofferssomeunfortunate escalate intocharacterizationsofloyaltyanddisloy- security isatissue,partisandifferencescanquickly cations forthewiderpoliticalculture.Whennational divisions arelimitedintheirsignificanceandramifi- the extentpossible.Inmostareasofpolicy, partisan rity mattersthatpartisanshipmustbeminimizedto It isespeciallythecasewithregardtonationalsecu- between substantivecriticismandpartisancriticism. national security ndicate itsspecialstatusandimportance.Thepres- f elected MPscanbeleavenedwiththerelatively Another necessarytrade-offwouldberequiredfor A committee ofParliament fornationalsecurity of effectiveparliamentaryscrutiny 40 . But thereisasignificantdifference ecutive wouldbethe artisan ar , imposes sine - tive arrest and investigative hearing provisions in the The McDonald Commission had envisioned comple- Anti-terrorism Act, in which allegations were traded mentary roles for Parliament and the permanent review of parties being “soft on terrorism” or “soft on body for CSIS. In this regard, it is important to recog- Charter rights,” to the detriment of any substantive nize that legislative committees may not prove to be discussion (Roach 2007, 9-11). Happily there are other particularly good at performing certain types of scruti- more encouraging precedents, including the work of ny. American research suggests, in fact, that they may the special committee that conducted the five-year be good at what McGubbins and Schwartz have referred review of the CSIS Act, which, as described earlier, to as dealing with “fire alarms” but poor at doing the operated in an entirely nonpartisan fashion without “police patrolling” form of scrutiny (McGubbins and limiting its capacity to scrutinize with a critical eye. Schwartz 1984; Born, Johnson, and Leigh 2005). A key ingredient in permitting informed but rela- However, given the fact that the capacity and potential tively nonpartisan participation by parliamentarians is performance dimensions of efficacy demand before-the- a strong committee support base, in terms of research fact assessments if intelligence failures are to be limited, and expert advice. The record of adequate support for leaving matters entirely to legislative committees may parliamentary committees in Canada is not good, com- not necessarily lead to positive outcomes. In other paring unfavourably with the relatively more lavish words, it is probably a mistake to divide accountability resources accorded congressional committees in the US. into watertight compartments. Even if Parliament con- A case could certainly be made for exceptional support centrates its attention mainly on efficacy questions, for a national security committee, given its unusual some aspects of efficacy may still be left to the external challenges. But there is another, more attractive alter- review bodies (SIRC has for some years carried out some native to consider: providing external security-cleared of the “police patrolling” scrutiny of CSIS). expert advice to the committee on a continuing basis.100 One objection to this relationship might be that It is here that we envisage a potentially useful accountability for propriety, especially the adjudication relationship between the external, arm’s-length of complaints against security agencies, requires a review bodies and a parliamentary committee. The degree of quasi-judicial independence that efficacy development of experienced, expert personnel in the investigations requiring some degree of before-the-fact review bodies — already evident for many years in assessments may call into question. In our view, there SIRC — could be tapped by a parliamentary commit- is no reason why the review bodies cannot compart- A

tee to assist in reviews for efficacy. The strengthened mentalize themselves so as to assure sufficient impar- c c o

RCMP review body, the CSE commissioner and the tiality on the part of those assessing complaints. On the u n t

enhanced SIRC, as recommended in the Arar other hand, SIRC has indicated that it would not wish a b i

Commission policy review, could offer a pool of to see its complaints function hived off because it has l i t expertise for the parliamentarians. The Integrated found that the investigation of complaints informs y i National Security Review Coordinating Committee SIRC’s understanding of how CSIS operates, thus n a n recommended by O’Connor (made up of the heads of improving its capacity to review for efficacy. d f the review bodies and an independent chair) could do Another objection, and one that should be taken seri- o r double duty as the coordinating body and main con- ously, is that reform may result in too much review, N a t i tact point between the parliamentary committee and impeding the agencies’ capacity to carry out their nor- o n a

the review bodies. This relationship of course pre- mal functions and protect Canada’s national security. l S sumes the provision of adequate resources to the While this argument has been used as a handy rationale e c u review bodies so that they are enabled to perform by some for avoiding genuine oversight, this is a real r i t y

their regular functions as well as to serve the parlia- risk, and we have already noted some instances of per- , b mentary committee when required. verse effects of imposing greater accountability. y R

An advantage of this arrangement would be to Certainly any interference by external reviewers in e g encourage a more cooperative and complementary ongoing operations would be counterproductive, but this W h i relationship between parliamentary and external practice is not part of existing reviews (SIRC, for t a k review than has been evident at times in the past, the instance, avoids investigating ongoing CSIS operations), e r worst example of a breakdown in relations being the nor should it be contemplated in any of the proposed a n hostile relations that developed between SIRC and the new forms of review. While review for efficacy may d S t parliamentary subcommittee on national security include some before-the-fact knowledge of what is being u a r during the “Heritage Front” affair. done, this in no way implies any hands-on involvement t F a r s 41 o n IRPP Choices, Vol. 15, no. 9, September 2009 the caseofnational securitymatters,thispresents spe can offergenuineassurance tothepublic. fied, suspiciousandresentful. Onlyeffectivereview pro formawhitewashesthat leavethepublicunsatis- accountability has ineffectinternalizedmanyofthelessons of operationalpersonnelisthatexpectation b been intheabsenceofanexternalreviewbody has madeitabetterorganizationthanwouldhave CSIS todayreadilyacknowledgesthatonbalanceSIRC times earlyintherelationshipbetweenCSISandSIRC, tion. Itisinterestingtonotethat,despitesomerocky may laterhaveadamagingimpactontheorganiza potential pitfallsdowntheroadthatifleftunaddressed get betterresults.Theycanalsousefullywarnof how properly dealtwithsuchmatters—butasaguideto whether thoseresponsiblefortheorganizationhave though theymaylegitimatelyfollowuptoestablish takes madenotasawaytopunishindividuals— any organization.Externalreviewerscanpointtomis- Accountability forlearningcanbeapositiveassetto and structuralissuesratherthanindividualbehaviour. control. Externalreviewersshouldfocusonsystemic always amatterforinternalsystemsofadministrative vidual employeesformisbehaviourorincompetence, executive, ascandisciplineandsanctionsagainstindi- Accountability forcontrolcanbeleftmainlytothe question ofwhatwewantaccountabilitytodo. propriety andefficacy. on applyingrealisticandreasonablestandardsforboth on howreviewisactuallycarriedout,butevenmore i cautious (“bettersafethansorry”),tothedetrimentof o unrealistic standardsofbehaviourmayhavetheeffect facto review the forceitselfofeffectiveexternalreview. Effective review procedures,torealizethepotentialvalue in the nationalsecurityandlawenforcementsides, that havebefallentheRCMPinrecentyears,onboth only hastolookatthepublicrelationsdifficulties improved accountabilityispubliclegitimacy. One est netbenefittonationalsecurityagenciesof accountability forassurance.Insomewaysthegreat- nnovative responsestosecuritythreats.Muchdepends y f making front-linepeoplerisk-averseandoverly relation toitsineffectiveordysfunctionalexternal Review mustof coursebeseentoeffective. In One wayofallayingthesefearsistoaddressthekey Accountability forlearningiscloselyrelatedto reviewers inoperationalmatters.Anotherconcern the organizationcanimproveitsperformanceand judgments byreviewersdemandingadherenceto , however , to itsorganizationalbenefit. , must meanrealaccountability, not 101 ex post , that it - - reasonable flexibilityindisclosureisessential. ity andpublicassurancearetobeachieved,more ter-century ofexistence).Butifimprovedaccountabil- security haseverbeenattributedtoSIRCinitsquar a tiality mustbestrictlyobserved(itisnotablethatnot review licly disclosedinthecourseofreportingexternal more expansiveinterpretationofwhatmaybepub effective, thegovernmentshouldsteelitselftotake a in nationalsecurityistobeeffective,andseen tion. Thelessontobedrawnisthatifaccountability according totechnicallystrictandnarrowinterpreta patently innocuousalthoughdeemednondisclosable embarrassing, aswellsomereferencesthatwere withhold someinformationthatwaspotentially but demonstratedthatthegovernmenthadfoughtto additional materialinnowayrisk report withadditionalmaterialordereddisclosed.The the FederalCourtafterpublicationoffinal ment’s motives.Intheend,disputewassettledin inquiry, whileraisingpublicsuspicionsofthegovern- the politicaleffectofenhancinglegitimacy Thisconfrontationhad guide (Whitaker 2008,11-5). public disclosureofinformationprovidesauseful Commission’s protractedbattleswithOttawaoverthe the federalgovernment.ThehistoryofArar addressed, andthatistheoverrelianceonsecrecyof history ofCSIS-SIRCrelationsisinstructive). public criticismoftheagencyitisreviewing(here when thereviewbodyhasestablishedatrackrecordof context thebestindicatorofassurancemaycome part, thisdifficultyisunavoidable.Ironically,this in d see cover-upsonthebasisofrelativelyinnocuous s secrecy, critics mayremainskeptical ofheavilycen- out reviewsmustoperateunderthesamelevelsof under heavysecrecy, andsincethosebodiescarrying c ored orredactedreviewsofsecretoperations,even ial problems.Sincenationalsecurityagenciesoperate eclassified partsoflargelynondisclosablereports.In single instanceofdisclosuredamagingtonational There isanotherdimensionherethatshouldbe . Of course,genuinenationalsecurityconfiden 42 ed nationalsecurity - - - - Notes 8 Richard Ericson identified what he cleverly called 1 The authors would like to thank Peter Gill, Loch “account ability” to describe “the capacity to provide a Johnson, Philip Rosen and Thorsten Wetzling and the record of activities that explains them in a credible man- Institute for Research on Public Policy’s anonymous ner so that they appear to satisfy the rights and obliga- reviewers for their comments. tions of accountability” (1995, 137). 2 See, for example, Canadian Institute of International 9 See Privy Council Office (2003). Affairs (2004-05) and Charters (2008); Forcese (2008a); 10 Cabinet confidences are records designated by the Privy Roach (2007); Whitaker (2008). Council Office as belonging to the cabinet paper system. 3 Federal Accountability Act, S.C. 2006, chap. 9. Two They include such documents as memoranda to cabinet, important elements, however, were the designation of cabinet committee reports, records of decisions, agendas, deputy ministers and the deputy heads of certain organ- aide-mémoires and documents prepared for cabinet com- izations as accounting officers and the appointment of a mittees. parliamentary budget officer. The accounting officers 11 The exclusion of classes of information from the Act is will likely extend the information that Parliament much more serious than exemption of information from receives about the functioning of departments and disclosure. Exemptions may be appealed to the informa- agencies; the parliamentary budget officer will likely tion commissioner and an injury test is applied. provide greater clarity to the budgetary process. Exclusions cannot be appealed, and no tests may be 4 Controls over the appointment of political staffers to applied. permanent public service positions, changes in the 12 Canadian Security Intelligence Service Act, R.S.C. 1985, governance structure of the Canadian Dairy chap. C-23 (CSIS Act), section 18 (1). Commission and lower limits on campaign donations 13 Access to Information Act, R.S.C. 1985, chap. A-1, sec- by individuals may be admirable initiatives in them- tions 16(1)(c)(ii) and 17. Similar exemptions can be selves, but are problematic components of enhanced found in the Privacy Act, R.S.C. 1985, chap. P-21, sec- administrative accountability. tions 22(1)(b)(ii) and 25. 5 Donald Savoie (2008a) argues: “The chain of accounta- 14 This was a major point of contention between CSIS and bility, from voters to MP, from MP to prime minister the RCMP in the investigation of the Air India bombing and cabinet ministers, from ministers to the heads of in 1985, once again reiterated in testimony before the government departments and agencies, and from sen- Air India inquiry. It is a persistent source of tension ior civil servants to front-line managers to their between law enforcement agencies and intelligence employees, has broken down...We should no longer agencies, the latter concerned not to endanger intelli- tolerate court government, by which a political leader gence assets by exposure to public trials, and the former with the help of a handful of courtiers shapes and more concerned with securing criminal convictions. 15 Canada Evidence Act, R.S.C. 1985, chap. C-5.

reshapes instruments of power at will.” There are sev- A

16 Anti-terrorism Act, S.C. 2001, chap. 41, Part 3, sections c eral important studies on the accountability roles of c o major institutions of government in the Gomery 43-46. u n t

Commission’s research. 17 US senator Daniel Moynihan, from his extensive experi- a b

ence in oversight of US intelligence, stressed: i 6 As one well-informed commentator (Simpson 2007) l i t

has written on the perverse impact of the attempts to “Departments and agencies hoard information, and the y i counter the sponsorship scandal: “New mini-bureau- government becomes a kind of market. Secrets become n

organizational assets, never to be shared save in a cracies, more paperwork, fresh regulations and over- n the-top requirements to report who spoke to whom exchange for another organization’s assets...The system d f o

outside government are already having the perverse costs can be enormous. In the void created by absent or r

withheld information, decisions are either made poorly N

effect of making an already cumbersome government a t

or not at all” (1998, 73). i

more cumbersome, and an already form- and proce- o n

dure-driven bureaucracy even more bureaucratic. The 18 A classic example of this concerned information about a l

effect of the Gomery inquiry, therefore, was to flush murders committed by Daniel Gingras and Allan Légère, S e

who had escaped from separate federal prisons. c

out shady characters and dubious, even illegal, actions u r

Suspecting a cover-up, the Justice Committee demanded i

but, over the long term, to make even less effective the t y operations of the federal government and less attrac- in 1991 to see a report by Corrections Canada. The , b tive that government as a place to work.” Solicitor General offered only a copy released under the y R

7 New measures also require internal auditing to be Access to Information Act on Privacy Act grounds. He e finally released the full document when it became clear g more independent. Treasury Board now requires W

that the House would use its powers under Standing h

deputy ministers to have a majority of external mem- i t

Order 108 (Farson 1996, 37-8). a

bers on their departmental audit committees by April k e

2009 (Treasury Board 2008). The role of these commit- 19 One instance in which particular precautions were taken r a

tees is wide-ranging and in addition to the internal and where there could have been very significant conse- n quences occurred when the Subcommittee on Organized d audit function encompasses financial and risk man- S t agement, management controls, and values and ethics. Crime of the Standing Committee on Justice and Human u a

Rights conducted its investigation in 1999-2000. Because r See Treasury Board (2005). t F a r s 43 o n IRPP Choices, Vol. 15, no. 9, September 2009 1Asimilarsituationhasmorerecentlyoccurredinthe 31 Onthepoliticalandbureaucraticbackgroundtocivil- 30 Order-in-Council,PC1977-1911, July6,1977. 29 AQuebecgovernmentinquiry, theKeableCommission 28 Thismaypartlybeexplainedbythetypesofscandals 27 26 25 24 PrimeMinisterBrianMulroneymadetheapologyina 23 Thequestioningprocesshasalsorecentlybecomecon- 22 2 20 Forexample,StandingOrder108, discussedlater. 1 US, wherewarrantlesswiretapsincontraventionofthe (1991, 659-65). ianization seeLittleton(1986,135-62)andWhitaker the McDonaldCommissiondescribedbelow. territoire québécois),whichreportedin198 (Commission d’enquêtesurdesopérationspolicièresen between low-andhigh-thresholdscandals(2009). involved. LochK.Johnsonhasexploredthedistinction first civiliancommissioneroftheRCMP. he wasinitiallyask Mack It isunclearwhetherthegovernmentwasfollowing House ofCommons,Debates,March7,1966,2297. remarkable levelofsurveillance. Even allowingforduplication,thisrepresentsa mation onmorethanoneoutofevery27Canadians. Canada was2 A 1988. statement intheHouseofCommonsonSeptember22, ter, thetimeavailable,resourcesathand,etc. and wouldneedtoencompassthepoliticsofmat- practice shouldtake suchmattersintoconsideration inquiry thanothers.Anyevaluationofwhatisthebest Perhaps someplayersarebetteratformsof commissions ofinquiryfornotknowingwhattoask. cism couldbelodgedagainstlegalteamsworkingfor alization seemssomewhatmisconceived.Equally, criti- many parliamentarianshavelegaltraining,thisration- gesting thatlawyersaremorecapable.Givenso r tentious. JusticeJohnGomery, forexample,has Security OffencesAct terrorism Act Foreign IntelligenceSurveillanceAct the locationofsomeitshearingsoutsideOttawa. t member ofthesubcommitteewasseverelychastisedby of identifyingonlyrecommendationsinitsreport,one all othercircumstances, awarrantisrequired. Canadians whentheoriginof callisfromabroad.In doing. InCanada,theCSECwas authorizedbythe relevant inspectorgeneral(IG)that revealedthiswrong- tems, asitwasthemediarather thanCongressorthe itations ofboththeinternaland externaloversightsys- the Bushadministration.Theexperiencerevealslim- o mittee wasverycarefultoprotecttheconfidentiality committee membersandtheirstaff.Whilethesubcom- a of threatsreceived,thesubcommitteedecidedtohold he chairforreleasinginformationtothemediaabout ecently criticizedparliamentariansinthisregard,sug- ll ofitsproceedingsincameratoprotectwitnesses, f ccording tothe197 sources andtheirevidence,evengoingtothepoint enzie. According toJohnStarnes(1998,131-3), to listencommunicationsinvolving 1,568,000: 800,000filesrepresentinfor ed ifhewasinterestedinbeingthe 1 , R.S.C. 1985,chap.S-7. census, thetotalpopulationof were employedby 1, preceded Anti- - 9McDonaldhadmaderecommendationsregarding fed- 39 2Intheory, thismeansthattheParliament ofCanadais 32 8 Subsection2(c)wasamendedbythe 38 ConflictbetweenParliament andSIRChasbeenevi- 37 36 Oneoftheworstexamplesbureaucratsbeing 35 40 3 3 1 Thesolicitorgeneral’sofficewas supersededbythe 41 ItmightequallybenotedthatfewMPshadfully 4 Forexample,theforerunnersofCSECwereestab- 3 Act covering (section 89). sions inthe and administrativediscretion;therearespecificprovi- than institutionalinnature,leavingthemtopolitical eral-provincial cooperationthatweremorehortatory Access toInformationAct n Royal CanadianMountedPolice Act 306-12). SeealsoFarson(1996,38-46). then ex Whitaker (1996,279-305).Foracontraryviewbythe For acriticalexaminationofthereviewprocesssee The otheroccurredduringtheHeritageFrontaffair during thefive-yearreviewprocess(discussedbelow). dent onatleasttwoimportantoccasions.Thefirstwas then normal. four researchers,insteadofoneortwo,whichwas gressional committees.Y mittee staffpalebycomparisontothoseofUScon The chairwasMPBlaineThack 573-603). that theirserviceswerenotrequired(Sutherland199 properly beask mally drawupalistofquestionsthatwitnessesmight followed. Forexample,LibraryofParliament staffnor- hearings intheearly1990s.Normalpracticeswerenot abused byacommitteeoccurredduringtheAl-Mashat the police. this rulealsoappliedtomattersunderinvestigationby ment ministershavesometimesdubiouslyclaimedthat dication inacourtoflaw. To thwartanswers,govern- debates, questionsandmotionsthatareawaitingadju- members ofParliament shouldnotbringupmattersin on specificmatters(sections13[2] and17). ments withtheprovinces,and provincial policeforces, M This deficiencywouldsubsequentlybeaddressedby grasped thepowersandprivilegesavailabletothem. order (Farson2001, 78-94) lished andmovedbetweendepartmentsbyexecutive cally bindstheNewZealandCrown(section4). increased thelevelof“oversightandreview,” specifi- Z 1990s (1999).The chair oftheSubcommitteeonNationalSecurity, inthe reorganization of governmentin2004. position ofministerpublicsafety duringamajor R-10, Part VI. mittee thatreviewedthe ot boundbysuchstatutesasthe ealand’s P Derek Lee,aformermemberofthespecialcom- in 2001 toaddthewords “religiousorideological” ecutive directorofSIRC,seeArchdeacon(1996, sub judice 44 I ntelligence andSecurityAct CSIS Act ed. Inthisinstance,theywereinformed sub judice matters. Bycomparison,New referring tocooperativearrange- et thespecialcommitteehad CSIS Act or suchconventionsasthat convention holdsthat er. Parliamentary com- P and subsequentlya rivacy Act , Anti-terrorism R.S.C. 1985,chap. 1 996, which o r the - . 1, 42 Disclosed versions of the IG certificates are now made is appointed for a five-year term during good behaviour, available on the IG’s public website: and is eligible to be reappointed for a term not exceed- http://www.publicsafety.gc.ca/abt/wwa/igcsis/igcsis-en. ing five years. Each takes the privy councillor’s oath, asp. It should be noted that the provision of these which includes the requirement to keep things learned in annual certificates to SIRC has not always been timely: the capacity of a privy councillor secret, as well as the i.e., within SIRC’s annual reporting period. oath of secrecy that employees of CSIS take. 43 There is one article from the late 1980s devoted entire- 51 No one has been appointed to SIRC who has a past affili- ly to the role of the IG of CSIS (Ryan 1989). For a ation with the Bloc Québécois, although the leader of comparative perspective, however, see Wellar that party in the House has been consulted over the (1996/97). appointment of members from Quebec. It took six years 44 In the early 1990s one IG objected to what she took to following its first appearance as a recognized party for be unreasonable limitations on her access to CSIS the Reform/Canadian Alliance (now part of the records relating to ongoing investigations. The minis- Conservative Party) to gain a representative on the com- ter supported the CSIS director on this point, and this mittee. SIRC has, however, always had one member with IG resigned her position after a relatively short tenure past affiliations to the New Democratic Party. Some (Whitaker 1999, 139). The director of CSIS refused to members of SIRC have been politically independent. For meet with another IG for years (Bronskill 1999). After the first few years, a government party representative this IG resigned, the post remained open for over a served as chair, but in 2005 a Liberal government year. At the same time, there were delays in replacing appointed the former Progressive Conservative premier two SIRC members (Fife 1999). of Manitoba as chair. 45 Memorandum, Solicitor General to Director of CSIS, 52 Beyond cabinet confidences, there is an additional Oct. 30, 1989 (Solicitor General 1991, 14). exception to SIRC’s access. In 1988, SIRC entered into a 46 SIRC investigated the Atwal warrant and concluded “third party access protocol” with CSIS that potentially incompetence rather than malice was the problem limits SIRC’s access to CSIS documents containing infor- (SIRC 1988, 11). mation provided by third parties (foreign governments 47 See testimony of Jack Hooper to the Commission of and organizations) if the latter withhold consent, Inquiry into the Actions of Canadian Officials in although CSIS “will use its best efforts to obtain authori- Relation to Maher Arar, Public Hearing, June 22, 2004, ty to disclose information provided by third parties when pp. 458-73. http://epe.lac-bac.gc.ca/100/206/301/ requested to do so by SIRC” (memorandum from chair- pco-bcp/commissions/maher_arar/07-09-13/www. man of SIRC to director of CSIS, May 25, 1988, with stenotran.com/commission/maherarar/2004-06- Annex of same date, disclosed under Access to 22%20volume%202.pdf Information request to SIRC, January 23, 1995). In the 48 In 2007, the Supreme Court of Canada struck down the mid-1990s, SIRC publicly complained when a CSIS doc- A

original provisions of this legislation governing securi- ument it had sought was instead returned to its donor c c o

ty certificates in its decision on Charkaoui v. Canada agency (SIRC 1996, 5-6). u n t

(Minister of Citizenship and Immigration), 2007 S.C.C. 53 A list of SIRC’s reports can be found at http://www.sirc- a b

9. Hitherto, evidence introduced by the government csars.gc.ca/opbapb/lsrlse-eng.html. i l i t

could not be tested by lawyers acting for those named 54 For an overview of TARC, see testimony of Jack Hooper y i

in certificates. This process was one that made Federal to the Commission of Inquiry into the Actions of n

Court justices uneasy as it forced them to act as advo- Canadian Officials in Relation to Maher Arar, Public a n cates as well as judges (Hugessen 2002, 381-6). Hearing, June 22, 2004, pp. 458-73. http://epe.lac-bac. d f o

Revisions to the legislation subsequently removed this gc.ca/100/206/301/pco-bcp/commissions/maher_arar/ r

duty by installing special advocates. Such lawyers 07-09-13/www.stenotran.com/commission/maherarar/ N a t

have appropriate security clearances that enable them 2004-06-2%20volume%202.pdf. TARC is chaired by the i o n

both to test government evidence and to appear in director of CSIS, and includes senior CSIS officers as well a l

closed hearings where they can cross-examine govern- as representatives from the Department of Justice and S e

ment witnesses. At no point are they in a solicitor- Public Safety Canada. c u r

client relationship. In fact, they are obliged not to 55 Testimony of John Adams, Chief of CSE, and other offi- i t y

share any information that they come across with cials in Standing Senate Committee on National Security , b

either the persons named in the certificate or their and Defence, Proceedings, Issue 15 — Evidence, April 30, y R

lawyers. 2007. e 49 Section 34(1) of the CSIS Act establishes the criteria 56 There have, however, been allegations that Canadians g W

regarding the composition of SIRC. have been involved. In addition to denying these strenu- h i t

50 Privy councillors are appointed for life by the gover- ously, the Canadian government has expressed concern a k e

nor general on the advice of the prime minister as about “false-flag operations,” especially where Canadian r a

advisers to the Crown. Traditionally, cabinet ministers passports have been used (Thorne 2009). n are made privy councillors. They each take an oath. In 57 Prior to an amendment of the CSIS Act in 2001, SIRC d S t

SIRC’s case, its appointees are named privy councillors also conducted investigations and hearings with respect u a

at the time of their appointment. Each member of SIRC to sections 39 and 81 of the Immigration Act and r t F a r s 45 o n IRPP Choices, Vol. 15, no. 9, September 2009 8Thenumberofcomplaintsexcludes thosedealingwith 58 4 The mostacerbicjournalisticcritichasbeenAndrew 64 CommissionofInquiryintotheInvestigation 63 SIRC1987,33-40.Theimpetusforclosingthebranch 62 6 Canada(MinisterofEmploymentandImmigration)v. 60 5 8 Amongthedocumentsdeniedwere theannualreports 68 Oneoftheauthors(StuartFarson) servedasdirectorof 67 LaurenceLustgartenandIanLeigh writethatSIRC“has 66 65 1 SIRC(2005),section46(2). 9 t related tonationalsecurity: m a careers andotherpursuits”(2002,293,332-3).Thereis often preoccupiedwiththeirbusinessinterests,legal to ahandfulofpart-time,politicalappointeeswhoare business ofwatchingoverthewatcherscannotbeleft friend.” Headdsthat“theimportantandnecessary cluding that“SIRC,ironicallyisoftenCSIS’sbest Syndrome withintheintelligencecommunity”incon- Mitrovica, whowritesabouta“sortofStockholm Commissioner. Bombing ofAirIndiaFlight182,JusticeJohnMajor, public servant(Osbaldeston1987;Gill1989). also camefromaspecialtaskforceheadedbysenior [1992] 1S.C.R.385. Thomson v. Canada(DeputyMinisterofAgriculture), Chiarelli, [1992]1S.C.R.711. received 2,256complaintsunderthelattercategory. CSIS workplace.Between1985and1987alone,SIRC papers. the IG’scertificates,service’s policyandbudgetary of thedirector, SIRCreports (except itsannualreports), research forthespecialcommittee. intelligence agencies,seeFarson (1991a, 185-217). 461). conceptofan Onthe organizational culturein considerations SIRCexiststovoicepublicly”(1994, grating intoitsowndecision-makingthekindsof tence ofareviewbodypushedtheServiceintointe- than SIRCitselfmighthavesuggested.Theveryexis- bly nothavedone,sometimesinmoreradicalfashion change’. Thatis,CSIShasdonethings itwouldproba- pushed CSISintowhatwasdescribedas‘pre-emptive Arar CommissionandtheIacobucciInquiry tentious issuethathasbeenthesubjectofboth with questionablehumanrightsrecords,ahighlycon- ex counts withthemannerinwhichCSISwashandling 2005-2006, 12-14,SIRCtookissueonanumberof Service” (CurryandFreeze2005).InitsAnnualReport press informationthatwasembarrassingtothe CSIS “purposefullymisled”itandattemptedto“sup In 2005,anewsreportquotedSIRCasclaimingthat see Born,Johnson,andLeigh(2005). see Aberbach(1990),andforacomparativeanalysis section 45ofthe the CanadianHumanRightsCommissionpursuantto n recommendations fordeportationonsecurityorcrimi- he applicationofthe al grounds.MattersmayalsobereferredtoSIRCby considerable literatureon“ inister advisesthecommissionthatacomplaintis changes ofinformationonCanadianswithcountries Canadian HumanRightsAct O fficial LanguagesAct CSIS Act co-optation”: intheUS, , section 38. . i , n when a the - 2 Itsexistencehadfirstbeenidentifiedasearly1975 72 Fortheuseofsuchexecutive ordersregardingCSEC 71 7 Thespecialcommittee’srecordregardingitsrecommen- 69 8 80 Arguably, bothofthesefunctionsareessential.Bill 79 78 Ibid., 3. 7 Amendments tothe 77 See, forexample,CommunicationsSecurity 76 ByMay2007, some40classifiedreportshadbeensub- 75 Order-in-Council,PC1996-899,June19,1996. 74 PrivacyCommissioner(1996,52);AuditorGeneralof 73 8 Thiswasuntilrecently aclassifieddocument andis 88 AuditorGeneralofCanada2005. 87 AuditorGeneralofCanada2004. 86 AuditorGeneralofCanada2003, 10.162. 85 AuditorGeneralofCanada2003, 10.154. 84 AuditorGeneralofCanada2003, 10.139. 83 AuditorGeneralofCanada(1996).TheUSGAO has 82 1 0 b see Farson(2001, 78-94). p approved bythefullstandingcommittee. As asubcommittee,itsreportswouldhavetobe tives. recommendations weretaken upthroughpolicyinitia- v sibilities forthetwoactsdidsuggestinaprivatecon- often assumed.Aseniorofficialwithparticularrespon- d (2006, 13). Communications SecurityEstablishmentCommissioner must similarlyk This meansthatlawandaccountabilityprocedures communications technologieshavecomeonstream. Signals intelligencehaschangeddramaticallyasnew to k Robinson hasshownthattheCSECfailedatonepoint chapter N-5,section273.63. ing considerationofthe Although CommissionerClaudeBissonappeareddur Establishment Commissioner(2002,3-4). Commissioner 2006,AnnexB). mitted (CommunicationsSecurityEstablishment Canada (1996,chap.27,mainpoint53). the CBC. now availableto thepubliconlyinredactedform. 2009). ‘Categorically’ DenyGAO Access toIntelligence” mation maybegranted”(“DODShouldNot for foreignintelligenceandcounterintelligenceinfor- directed “explicitly forthefirsttimethatGAO requests although recentlytheUSDepartmentofDefensehas been routinelydeniedcooperationbytheCIA, =1&Parl=37&Ses=3. Publication.aspx?DocId=130 at http://www2.parl.gc.ca/HousePublications/ Lamer’s evidencetothatcommitteeonApril20,2004, annual reportsbefore2004.SeeCommissionerAntonio National DefenceandVeterans Affairsontheoffice’s missioner testifiedbeforetheStandingCommitteeon ersation withoneoftheauthorsthatmany ations forstatutoryreformmaynotbeaspooris y rior totheadoptionofitsenablingstatutein2001, the USpublication eep upwithtechnologicaldevelopments(1992). 46 eep up. National DefenceAct R amparts Anti-terrorism Act 7211&Language=E&Mode a nd subsequentlyby , R.S.C. 1985, , no com- - 89 One of the authors (Whitaker) was chair of the panel. independent arm’s-length review mechanism for the 90 “Speaking Remarks by David Brown at the Release of RCMP” and to consider how the recommended mecha- the Report of the Task Force.” December 14, 2007. nism would interact with “other review bodies.” http://www.publicsafety.gc.ca/rcmp-grc/sn-eng.aspx. Arguably, he interpreted this mandate literally, and Brown recommends a new Independent Commission avoided any discussion of Parliament’s involvement. One for Complaints and Oversight for the RCMP, explicitly impact of this has been that the RCMP has responded designed as an accountability mechanism for assur- only to his specific recommendations on the force, not to ance and legitimation: “the goal [is] restoring and the broader question of how it might inform Parliament maintaining confidence of the public and the members about national security criminal investigations. and employees of the Force” (Task Force on 98 Impropriety in the special case of national security Governance and Cultural Change in the RCMP, 17). See should not be seen as limited to illegality, but may also House of Commons Standing Committee on Public encompass actions that are technically legal within the Accounts (2007). special framework that applies to national security activ- 91 We have distinguished between a committee of parlia- ities but may nonetheless be judged unethical or inap- mentarians and a parliamentary committee (Farson propriate according to the wider framework of social and Whitaker 2007). values. Thus, accountability for propriety has gone 92 One of the authors (Whitaker) was a member of a five- beyond the simple verification of the legality of the person panel advising O’Connor on the policy review, actions of national security officials to the interrogation and thus participated in shaping the recommendations of the legal framework within which they operate. This that are laid out here. The other (Farson) was an expert framework itself, as well as the resultant practices of the witness in this part of the inquiry. agencies, has undergone successive reforms over the 93 Examples include the Integrated National Security years to reflect shortcomings revealed by outside scruti- Enforcement Teams (INSETs), which work together ny. Thus, the criteria established in the CSIS Act for what under RCMP direction but involve CSIS and other fed- activities that agency can and cannot appropriately tar- eral agencies, as well as provincial police forces where get for intrusive surveillance provided outside reviewers appropriate; and Integrated Border Enforcement Teams with sufficient reason to recommend successfully the (IBETs) and other similar cooperative efforts that may closure of the Counter-Subversion Branch — not because involve not only federal and provincial agencies but that branch was operating illegally, but because it was American federal and state agencies as well. INSETs targeting inappropriately in light of the principles enun- have registered one apparent success in the 2006 ciated in the Act. Similarly, the Arar Commission pointed arrests of 18 alleged terrorists in Toronto, though to intelligence-sharing practices by the RCMP that had charges have so far been stayed against several of disastrous consequences for the human rights of Maher those originally charged. Arar; these practices were not illegal, but they were A

94 In personal conversation with the authors, the former inappropriate, and thus subject to calls for reform on c c o

chair, Shirley Heafey, described the complaints com- grounds of impropriety. u n t

mission system as “broken.” 99 We have explored how other countries have adapted the a b

95 The PCO is responsible not only for the development committee of parliament option (Farson and Whitaker i l i t

and coordination of community-wide security and 2009). y i

intelligence policy, but also for the International 100 With regard to parliamentary review of anti-terrorism n

Assessment Staff, both under the direction of the legislation, Craig Forcese, drawing on the UK and a n national security adviser. Presumably, the PCO was not Australian examples, makes a strong case for what he d f o

considered because O’Connor was focusing on propri- calls “precursor expert review” to inform parliamentary r

ety issues. O’Connor did recommend that after five committees in Canada (2008a). N a t

years, reconsideration should be given to whether 101 See the answer given by Ward Elcock, the longest-serv- i o n

other federal agencies should be subject to review. A ing director of CSIS, regarding SIRC’s influence: a l

recent example of expanding intelligence collection by Commission of Inquiry into the Actions of Canadian S e

the Canadian government with potential implications Officials in Relation to Maher Arar, Public Hearing, June c u r

for accountability is a report that the Defence 21, 2004, p. 187 (http://epe.lac-bac.gc.ca/100/206/ i t y

Department is developing a human intelligence gather- 301/pco-cp/commissions/maher_arar/07-09-13/ , b

ing capacity for foreign deployments (“New Military www.stenotran.com/commission/maherarar/2004-06-21 y R

Spy Unit to Gather Information on Overseas Missions” %20volume%201.pdf. accessed July 13, 2009). e 2008). g W

96 One might equally argue that it was a fallacy to h i t

believe that disbanding the RCMP Security Service a k e

somehow also detached the RCMP from its counterter- r a

rorism responsibilities and the intelligence process that n this work demanded (Farson 1991c). d S t

97 For example, the policy side of the Arar Commission u a

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“Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” “Canadian Naval Future: A Necessary Long-Term Planning Craig Forcese Framework” IRPP Choices, Vol. 15, no. 5 (June 2009) Peter Haydon Working paper 2004-12 (November 2004) “The (Un)Peaceable Kingdom? Terrorism and Canada before 9/11” David Charters “Addressing the Security-Development Nexus: Implications IRPP Policy Matters, Vol. 9, no. 4 (October 2008) for Joined-up Government” Ann M. Fitz-Gerald “Fixing the Deficiencies in Parliamentary Review of Anti- Policy Matters, Vol. 5, no. 5 (July 2004) terrorism Law: Lessons from the United Kingdom and Australia” Craig Forcese “Realism Canadian Style: The Chrétien Legacy in National IRPP Choices, Vol. 14, no. 6 (May 2008) Security Policy” Joel J. Sokolsky “Better Late than Never? The Canadian Parliamentary Review Policy Matters, Vol. 5, no. 2 (June 2004) of the Anti-terrorism Act” Kent Roach “Force Structure or Forced Structure? The 1994 White Paper IRPP Choices, Vol. 13, no. 5 (September 2007) on Defence and the Canadian Forces in the 1990s” Sean M. Maloney National Security and Interoperability/ Choices, Vol. 10, no. 5 (May 2004) Sécurité nationale et l'intéroperabilité “A Vigilant Parliament: Building Competence for Effective Parliamentary Oversight” “Weak States and Sudden Disasters and Conflicts: The Douglas L. Bland, Roy Rempel Challenge for Military/NGO Relations” Policy Matters, Vol. 5, no. 1 (February 2004) Various authors Conference paper, June 2005 “Four US Military Commands: NORTHCOM, NORAD, SPACE- COM, STRATCOM — The Canadian Opportunity” Geopolitical Integrity Joseph T. Jockel Hugh Segal (ed.) Working paper 2003-3 (November 2003) Monograph, April 2005 “Are We Just Peacekeepers? The Perception Versus the Reality “Mature Peacekeeping Operations as Facilitators of Organized of Canadian Involvement in the Iraq War” Crime” Sean M. Maloney Irv Marucelj Working paper 2003-2 (November 2003) Working paper 2005-1 (March 2005) “The SORT Debate: Implications for Canada” “Guarding the Continental Coasts: United States Maritime Philippe Lagassé Homeland Security and Canada” Working paper 2003-1 (October 2003) Joel J. Sokolsky Policy Matters, Vol. 6, no. 1 (March 2005) “Military and Postconflict Security: Implications for American, British and other Allied Force Planning and for “Happiness Is — a Rising Defence Budget?” Postconflict Iraq” Don Macnamara Ann M. Fitz-Gerald Special report (February 2005) Choices, Vol. 9, no. 3 (April 2003) Accountability in and for National Security Reg Whitaker and Stuart Farson Résumé

eg Whitaker et Stuart Farson examinent dans cette étude le système d’imputabilité qui s’ap- R plique aux agences et ministères gouvernemen- taux chargés de la sécurité nationale du Canada, puis ils L’étude retrace l’historique des mécanismes d’im- formulent des recommandations visant à le réformer. putabilité au Canada en expliquant comment, quand et Chacun s’entend aujourd’hui pour accroître l’im- pourquoi on les a adoptés. Généralement suscitées par un putabilité gouvernementale, mais sans nécessairement scandale public, les réformes en ce domaine ont surtout en comprendre tous les enjeux. La notion d’imputabilité visé à vérifier le bien-fondé. Mais depuis le 11 septembre exige en effet une analyse approfondie, et ses objectifs 2001, de nouvelles formes de menaces à la sécurité ont doivent être clairement définis, car la volonté d’ac- soulevé de nouveaux défis. Les processus d’imputabilité croître le niveau d’imputabilité a trop souvent produit doivent donc s’adapter aux réalités actuelles en intégrant des résultats imprévus par le passé, voire certains effets les deux aspects du bien-fondé et de l’efficacité. La indésirables. La sécurité nationale soulève à cet égard recherche d’une plus grande imputabilité a certes connu des défis particuliers, par ses exigences exceptionnelles des avancées, mais le processus n’est pas encore terminé, en matière de secret notamment et aussi en raison du observent les auteurs. rapport complexe entre les activités de renseignement Dans le débat sur les meilleurs moyens de scruter les et l’application de la loi. activités des milieux du renseignement et de la sécurité, Pour analyser la notion d’imputabilité dans le domaine on n’a toujours pas déterminé clairement ce que doivent de la sécurité nationale, les auteurs portent une attention accomplir les différents organismes et processus. L’enjeu particulière aux concepts d’« examen » et de clé réside ici dans l’étendue des pouvoirs disponibles et la « surveillance ». Souvent perçu comme une mesure post meilleure manière de les exercer. Trois éléments revêtent facto, l’examen est généralement considéré au Canada une importance capitale : l’accès aux personnes et aux comme l’option privilégiée pour accroître l’imputabilité. documents ; le pouvoir d’exiger des réponses précises et Mais les auteurs s’interrogent sur la pertinence de ce complètes ; le processus, la synchronisation, la substance choix dans le domaine examiné. Ils montrent que les et l’indépendance de la procédure de reddition de compte. mécanismes d’imputabilité ont surtout eu pour fin de Les recommandations des auteurs sont de deux ordres. vérifier le bien-fondé et l’efficacité des programmes, deux Compte tenu de l’intégration croissante des opérations de critères interdépendants mais différents. Si l’examen sem- sécurité nationale gouvernementales et intergouverne- ble adapté au premier critère, la surveillance paraît plus mentales, ils recommandent premièrement que les méca- appropriée lorsqu’on vise l’efficacité. Les auteurs pré- nismes d’imputabilité débordent des frontières conisent donc d’élargir notre conception de l’imputabilité institutionnelles. Deuxièmement, ils recommandent que le en prenant en considération tant l’examen que la surveil- rôle du Parlement dans le processus d’imputabilité soit lance. Ils proposent aussi d’établir une nette distinction renforcé, en étroite coordination avec les organismes entre l’imputabilité au sein du ministère responsable de la d’examen et de surveillance existants. Mais, avertissent- sécurité nationale (c’est-à-dire au niveau de l’autorité ils en terminant, cette imputabilité accrue ne doit aucune- exécutive et principalement pour des raisons de contrôle) ment entraver les activités de ceux qui protègent la et aux fins de la sécurité nationale (c’est-à-dire l’obliga- sécurité nationale du Canada. tion de rendre compte des ministres répondant de l’action gouvernementale devant le Parlement).

53 Accountability in and for National Security Summary Reg Whitaker and Stuart Farson

n this study, Reg Whitaker and Stuart Farson exam- ine the complex system of accountability that applies I to government departments and agencies responsible for Canada’s national security and recommend reforms to the system. Greater accountability in government today is widely supported but imperfectly understood. The concept of accountability must be carefully analyzed, and its objec- scandal, accountability reforms have tended to focus on tives clearly specified. Too often, seeking accountability matters of propriety. In the post-9/11 era, there are new has had unanticipated and even perverse results. National challenges from new types of security threats. With new security presents special challenges in this quest, particu- approaches to security, accountability must be adapted to larly with regard to the extraordinary requirements for the new realities, involving both propriety and efficacy. secrecy and the complex relationship between intelli- The authors conclude that achieving accountability is an gence collection and law enforcement. evolving but unfinished process. In examining the issue of accountability in national In the debate over how best to scrutinize Canada’s security, the authors focus on a number of conceptual security and intelligence community, the question of what difficulties, such as the idea of “review” versus that of the various bodies and processes are meant to accomplish “oversight.” Review — often seen as occurring ex post has not been fully considered. The key question is what facto — has generally been the preferred option for powers are available and how they are to be exercised. enhancing accountability in Canada. Whitaker and Three dimensions are of crucial importance: effective Farson question whether this focus is appropriate in access to documents and people; the power to require full national security. They find that accountability has main- and accurate responses; and the process, timing, substance ly been sought for propriety and efficacy, different but and independence of the reporting procedure. interrelated criteria. While review seems most appropriate Whitaker and Farson’s recommendations include two when dealing with matters of propriety, oversight seems central points. First, because national security operations more appropriate when it is a question of efficacy. Thus within government and between governments are becom- the authors insist upon widening the scope of how ing increasingly integrated, accountability mechanisms accountability should be understood, to include both should be integrated across institutional boundaries. review and oversight. They also suggest that an impor- Second, the role of Parliament in the accountability tant distinction should be made between accountability process needs to be enhanced, in close coordination with in (that is, within the executive branch, largely for con- existing and enhanced review and oversight bodies. An trol purposes) and accountability for (that is, the process important caveat is that increased accountability should of accounting by responsible ministers for government not hinder the operations of those engaged in protecting actions in and to Parliament) national security. Canada’s national security. The study provides an historical overview of how, when and why national security accountability mecha- nisms developed in Canada. Most often driven by public

54