Canada’s Sorely Needed Enhanced National Security Oversight and Review May Be Near
They are the issues that won’t go away. First raised following the 2010 investigation and report into the 1985 Sikh terrorist attack on an Air India flight that killed 329 people, the issues of improving national security operational oversight and after-the-fact review resurfaced during the debate on Canada’s C-51 terrorism legislation and the 2015 election.
The new Liberal government campaigned on changing national security oversight and review. This was further emphasized in the mandate letter provided to Public Safety Minister Ralph Goodale in November 2015, which included a direction to:
Assist the Leader of the Government in the House of Commons in the creation of a statutory committee of Parliamentarians with special access to classified information to review government departments and agencies with national security responsibilities.
In practical terms, operational oversight means having an independent entity as part of the ongoing interagency investigative groups. This helps ensure that all of the governmental agencies cooperate, and helps identify and fill in any gaps that can accompany interagency work. Such a process may have identified the intended Air India attack or prevented the departure from Canada to Syria of convicted Toronto 18 terrorist Ali Mohammed Dirie, who escaped despite being under a supervision order.
After-the-fact review, on the other hand, is an independent process to figure out what worked, what didn’t, and how to improve in the future. This kind of process would be ideal, for example, for looking into the details who is doing the radicalization of persons involved in terrorism cases or jihadi travel and why we haven’t prevented it.
While the minister’s mandate letter refers only to a specially constituted parliamentary committee, it is necessary to appreciate that national security “review” can also be accomplished through other means. Minor amendments to the enacted provisions of C-51 could, for example, include mandatory annual reporting to the Privacy Commissioner by designated departments or agencies of information sharing done pursuant to the new Security of Canada Information Sharing Act. This would supplement the already existing power of the Privacy Commissioner for complaint-based and self-initiated investigations, which includes multi-agency examination.
Enhanced oversight can also be achieved through full use of the existing review procedures under the Canadian Security Intelligence Services (CSIS) Act, whereby the Security Intelligence Review Committee (SIRC) can investigate and review the activities of CSIS in defined scenarios. It should also be noted that SIRC does appear to have express statutory authority under the CSIS Act in defined circumstances to summon and question representatives from other agencies or Departments beyond CSIS and, with some restriction to seek relevant information from them. Clearly for oversight to be effective, it must include the activities of all relevant agencies.
The CSIS Act also can be amended to expand the multiagency investigative mandate of SIRC to include the new and controversial judicially-authorized operational activities created by C-51 which, for the first time, permit CSIS to do what would otherwise be unlawful or a charter breach. The new government has not indicated what it intends to consider in these areas generally, or in relation to C-51 specifically, but all of these options are available and would increase independent review in national security operations.
Stephen Harper’s departure from the prime minister’s office also seems to have eliminated any real opposition to the idea of creating a joint House-Senate special committee with a national security review mandate. Minister Goodale recently confirmed that he intends to introduce legislation to create this committee before Parliament adjourns for the summer. To be effective and not just window dressing, such a committee will need a mandate that includes full departmental and agency review. That includes access to relevant information rather than the current system which is siloed according to the specific agency being reviewed. Some opposition members have complained that there has been no consultation, as was promised, which may be due more to uncertainty than to deliberate exclusion.
The committee could examine policy issues to assess compliance and after-the-fact case specific incidents which are often the most revealing about performance and non-performance and what remedial measures are necessary. Case reviews permit specific questions about actual conduct, or inaction, which generally translates into specific explanations rather than the usual theoretical responses. The importance of this ability cannot be overstated, as accountability is a proven incentive to performance and productivity.
This kind of targeted review also can serve as a vehicle to effectively identify legislative, policy or funding obstacles to desired operational abilities. Having a joint parliamentary committee reporting on such problems is also a likely accelerator to getting them fixed expeditiously, which is no small matter. This reality has been repeatedly demonstrated by the current Senate National Security Committee, whose excellent work has led to revelations and remedial action about border security problems, the numbers of Canadian jihadis at “home” and abroad, counter radicalization gaps, the use of preventive measures and revocation of charitable status of Islamist linked groups.
The other area that is often ignored but which merits attention is the need to ensure independent oversight and co-ordination for inter-agency operational entities like the RCMP-led Integrated National Security Enforcement Teams (INSET) and for subject areas like cyber security that involve multiple departments and agencies.
The independent oversight contemplated here is different from the after-the-fact review described above, as it involves an ongoing, non-operational role in the inter-agency operational bodies and multi department/agency responsibilities. It must be stressed that the purpose of this oversight is not to add another service delivery player or more bureaucracy, but rather to create a mechanism to ensure that the responsibilities and intended co-operative practices are actually being achieved.
This kind of independent oversight was part of the 2006 Conservative election platform and a recommendation from Justice John Major in his 2010 Air India Report, which exposed a serious lack of coordination and cooperation between the RCMP and CSIS leading up to the terrorist attack, which contributed to the failure to disrupt the deadly plot. Despite this, then Public Safety Minister Vic Toews declined to implement this reform.
The issue has become even more pressing with the passage of C-51 and the expanded operational mandate provided to CSIS, which includes international operations, entering into agreements with local police agencies and requesting assistance from other agencies to carry out judicially authorized activities. Added to that is the reality of returning and departing jihadis, confirmed by CSIS under questioning at the Senate National Security Committee, and a welcome prioritization of radicalization prevention and deradicalization, all of which means increased community interactions which requires increased local police involvement.
In short, things just got more complicated, so having a clear set of inter-agency protocols with an independent compliance assurance mechanism is a good idea. Such an entity could be created within the Privy Council Office (PCO) with a clear mandate and a reporting link directly to the National Security Advisor’s office, which is also part of the PCO. Once again, this kind of accountability enhancement would also be a natural forum for identification and potential resolution of inter-agency difficulties, especially when the failure to resolve issues results in reporting ‘up’ rather than tolerating the status quo.
These are important issues that require informed and effective action. Hopefully, the new government will differ from its predecessor and choose a course of action that delivers enhanced operational efficiency and improved independent review. Both are possible and both serve the public interest of Canadians.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Director of Operations for the Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada.