By Matthew Behrens
Among
the Harper era’s most destructive legacies is a toxic stew of repressive
“anti-terror” laws that, in building on similarly repressive measures brought
it under Jean Chrétien and Paul Martin, extended major new powers to Canadian state
security agencies CSIS (Canadian Security and Intelligence Service), CSEC (Communications Security Establishment Canada), CBSA (Canadian Border Services Agency) and
the RCMP, among numerous others. Last year, Justin Trudeau infamously voted in
support of C-51 (The Anti-Terrorism Act, 2015), claiming his support of the law
was necessary to ensure his electability.
During
the federal election, the Liberals promised to revisit C-51 with amendments
they felt would make it more palatable. More recently, Public Safety Minister
Ralph Goodale has hinted at a consultation process, committee hearings, and
even a broader dialogue on state security issues. While it sounds like a
typical Liberal plan (a good listen before they go ahead with their preordained
agenda), it nonetheless provides us some space to raise serious questions about
the current and traditional role of CSIS, the RCMP, and CBSA, among other
agencies, in violating the rights of targeted, vulnerable communities.
Given that the 1984 creation of CSIS from the ashes of the
scandal-plagued RCMP Security Service did not change the dynamics of repression
in Canada (most former Mounties simply moved their desks to the new CSIS), now
would be a propitious moment to discuss dismantling CSIS as an ultimately
lawless, dangerous outfit. As this column has repeatedly documented, CSIS has
undertaken a sweeping series of illegal and unethical activies over 30+ years:
complicity in torture; defiance of court orders; lying under oath to judges;
illegally recording lawyer-client calls; terrorizing targeted communities;
acting as ISIS recruiters; targeting labour unions, peace activists, Indigenous
people, and environmentalists; and a lengthy list of other practices which have
endangered the lives of many Canadians. Despite this, CSIS gets an annual free
pass and an occasional love tap on the wrist from its watchdog, the Security
Intelligence Review Committee (SIRC).
Indeed,
the work of those who struggle to end the real threats to our collective
security – climate change, war and Canada’s booming armaments business, a
grossly disproportionate income inequality, a deeply-rooted colonial racism,
and an epidemic of violence against women – would be a lot easier if we weren’t
constantly the focus of investigation by the likes of CSIS and the RCMP. Think
of how the heroic Cindy Blackstock was viewed as a security threat for exposing the wretched living conditions
of Indigenous children. Members of Canada’s Arab Muslim communities could
certainly sleep better at night too, not having to worry that their children
were being coerced into spying on the community as a sign of their loyalty to
Canada. And without an active CSIS, the number of terror threats coming to
trial would decrease significantly, given how many of those cases are either
initiated by or facilitated by agents of the Canadian state, perhaps no more
clearly than in the Nuttall entrapment case currently being heard in BC.
Beware the Window Dressing
But
instead of questioning the mandates and core practices of these secretive,
unaccountable outfits, efforts are already underway to save the system by
putting up some nice-looking window dressing and further entrenching a parallel
system of secret government. While there is no evidence that repeal of C-51 and
the whole slew of post 9/11 “anti-terror” legislation would harm the security
of Canadians one whit, some members of the academic-security complex are
exercising a preferential option for the powerful in trying to design
face-saving measures to keep C-51 intact.
Out
front in narrowly framing the issue as one of technical and legalistic details are
professors Kent Roach and Craig Forcese, who, despite providing much good
research on state security measures over the years, nonetheless write in their 2015
book False
Security that “we
have rarely opposed such laws, although often urged refinements and
improvements. And even with C-51 and the earlier 2015 law, Bill C-44, we did
not dispute their purported objectives, merely their means and omissions. Our
focus has always been on repairing 2015’s security laws, not burying them,
something that has put some distance between us and some rights groups that we
work with and admire.”
Herein
lies the danger in whatever national discussion about C-51 and the broader
state security environment will ensue: our goal should not be making a
fundamentally oppressive network of invasive, privacy-busting, human
rights-violating agencies work more efficiently.
While
polls indicate most Canadians opposed C-51, Roach and Forcese appear to have
taken it upon themselves to save the law with a discussion paper and proposed
legislation that is currently making the rounds in Ottawa. “Bridging the
National Security Accountability Gap” calls for increased levels of state
security review via a “Super SIRC” that would have an expanded review mandate
for more government agencies, a secret committee of Parliamentarians, and an “Independent
Monitor” who would, in the words of the proposed law, hold office part-time
“during good behavior.” In theory, it's an interesting idea, and one much
needed, especially for agencies like CBSA, which has no review process whatsoever.
But a siloed focus on after-the-fact review fails to question the state
security narrative that continues to do so much up-front damage to so many
individuals, families, and communities.
Worse
still is the fact that expanded review does nothing to ultimately hold agencies
accountable: there is no discussion of creating the capacity to lay charges
against agency officials for the wrongdoing that ruins lives. Nor is there any
infrastructure proposed that allows independent officials to step in and stop
an operation that is acting illegally and at great risk to individuals whose
lives are in peril because of shoddy “intelligence” work, exaggerated threat
assessments, false labeling, and other systemic problems that have marked CSIS
since its birth.
Perhaps
most problematic is the fact that Canadian citizens who have been targeted for
torture and continue to live with the horrific aftermath are not front and
centre in this proposal. Indeed, any honest attempt to bring accountability to
the system would insist on having individuals like Abdullah Almalki, Maher
Arar, Ahmad El maati, Muayyed Nureddin, Abousfian Abdelrazik – all tortured
with Canadian complicity – playing a key role in all meetings and discussions
about how to control what is a shockingly corrupt system operating with
complete impunity. But none of them are even mentioned in Bridging the National
Security Accountability Gap.
Instead,
the tone of the document is almost a consoling sop to CSIS and their spy
brethren. Forcese and Roach soft-pedal their approach with anodyne language,
noting state security agencies “may stray into patterns, policies or groupthink
impairing their effectiveness.” By using the qualifier “may,” they ignore the
substantive public record that such dynamics constitute standard operating
procedure. “Such practices,” they continue, “may result in either overreactions
causing human rights abuses or underreactions causing security failures.”
Again, the qualifier “may” ignores the well-documented record of such human
rights abuses over the past two decades. They state such agencies have “sometimes
misused” their powers, as if it were an aberration rather than a daily
practice. They don't call for repeal of these powers; they simply want to see
more documentation of them. In all such instances of problematic state
behaviour, they conclude, “Review can counter this tendency.”
Review Cannot Help Today’s
Targets
But
review does not help the pour soul trapped in an overseas Syrian or Egyptian
dungeon, being tortured based on questions coming from a Canadian agency, as
happened in at least half a dozen cases since 9/11. Review is retrospective. It
does not rein in, much less stop, abusive practices, especially when findings
are not used to prosecute and, where appropriate, punish the acts of secretive
officials whose decisions imperil people’s lives.
While we must start somewhere when it comes to reining in and
disarming these agencies, these academics’ approach seems more concerned with
CSIS’ feelings than those of the victims of state security policies. Indeed,
their approach to dealing with agencies marked by a lengthy history of
incompetence, dishonesty, and reckless disregard for human life, is a pitifully
low standard: “trust, but verify.” What has CSIS, the RCMP, CBSA, and their
assorted security agencies done in the past that allows them such a long leash?
In a democratic, transparent society, shouldn’t any position short of abolition
be based on the much higher standard for secretive, unaccountable agencies:
mistrust, question, assume illegality based on patterned behavior over several
decades, seek opportunities to hold officials legally accountable, and ensure
they do no further damage? But Roach and Forcese’s bias is clear: in stating “review
can contribute to an agency’s legitimacy,” they fall into the same trap as
SIRC, which time and again sees itself as a liaison between CSIS and the
public, trying to explain away CSIS behavior. As SIRC wrote, for example, in
1995, “Our
aim is to provide a steadily broadening and deepening public base of
information about what CSIS does, why those activities are necessary, and how
well the Service carries them out.”
SIRC’s
understanding of its mandate makes them sound more like a PR agency for CSIS
than a watchdog tasked with rooting out problematic behavior.
Assuming for a moment that review is one answer to the problems we
face, Forcese and Roach correctly argue that review should be independent of
government and the agencies they review, but herewith lies another conundrum:
the only people who will be appointed to conduct review processes will need to
be security cleared by that very government. Will someone with the most
intimate knowledge possible of the workings of these intelligence agencies, and
hence the ability to properly question the workings of these outfits – say one
of the returnees from torture in Syria and Egypt – be allowed onto the review
committee? In case you are unsure of the answer, keep in mind that the Liberal
government is continuing to fight the legal claims of three Canadians tortured abroad
with Canadian complicity – Abdullah Almalki, Ahmad El Maati, and Muayyed
Nureddin. All suffered intense harassment in Canada and torture overseas during
previous Liberal governments.
But
the concerns of the victims of CSIS and the RCMP are not what makes this
proposed legislation tick. Rather, it is making sure the spies are comfortable.
That is why, in proposing a secret committee of state security Parliamentarians,
Forcese and Roach suggest that it be a small group, since that may make it
easier to earn “the trust of intelligence agencies in relation to dealing in
sensitive information.” But isn’t it CSIS and the RCMP who need to earn our
trust, not the other way around?
Shutting Down Whistleblowing
In
addition, Forcese and Roach seek with their proposed legislation to tie the
hands of this secret group of MPs, denying them the Parliamentary Privilege
they might otherwise enjoy to act as whistleblowers if they see something
untowards taking place behind closed doors. As even these academics have
acknowledged, much of what is secret is kept under wraps not for security
reasons, but to avoid embarrassing the government and the spy agencies. But such
a prohibition on Parliamentary privilege makes sense if, as the authors point
out, the point of review is to enhance the legitimacy and image of these
organizations. Thus, to save the hide of CSIS, Forcese and Roach propose that MPs
on the committee who feel something needs public disclosure will face a
difficult challenge: breaking an oath of permanent secrecy and being subject to
charges which could land them in jail for 14 years.
The
academics also state that government should not have a unilateral veto over
what is disclosed. Agreed, but then their proposed legislation does exactly
that. In a section on the secret committee’s annual report, they give the
Attorney General the power to keep certain information from public disclosure.
Imagine this scenario: the MPs learn that CSIS is complicit in the ongoing torture
of a Canadian citizen in an Egyptian dungeon. They wish this to be made public.
CSIS objects and then goes to the Attorney General. The Attorney General then
goes to Federal Court to argue that under the Canada Evidence Act, the
information should not be disclosed and, further, that a hearing into the
reasons why must be held in secret as well. Such Canada Evidence Act
proceedings can take years. The transparency, accountability, and democratic
oversight that is the purported point of review is thus stuffed into the ever-expanding
secret bureaucracy of state security. The poor soul in an Egyptian prison does
not benefit, and any MP who speaks publicly risks jail, thanks to the
legislation proposed by Mssrs. Roach and Forcese.
The
problem in calling for expanded review with a “Super SIRC” under these
circumstances has long been identified even by those with a preferential option
for the powerful. Even Wesley Wark (who is far from a radical critic of CSIS) notes a good
working relationship with a spy agency “can distort the critical faculties and
independence of a review body. It can also lead to the over-valuing of the
relationship between reviewer and reviewed at the expense of the review body’s
public function.”
That has certainly been the case with SIRC,
which started out fairly critical of CSIS in the early years, but has since
turned into the author of an annual gold-star, happy face report card. While
SIRC has occasionally done some very good work – its staff have written some excellent reports
identifying serious problems with CSIS – it operates under the dynamic
identified by Wark: they will point out individual problems, but fail to
condemn structural abuses and question the broader agenda. In their 1991 annual
report, SIRC wrote “our criticisms are no longer based
upon strong and fundamental disagreements with the CSIS view of the world
[emphasis added]. They are far more the results of differences of opinion
regarding the day-to-day implementation
of CSIS policies than, as in the past, our opposition to those policies
themselves.”
SIRC
recommendations are not binding on CSIS, which can disregard them with
impunity. But let’s assume, though, that the notion of review is a viable
approach to the state security conundrum. Can it prevent abuses? The answer
would appear to be a very strong “No!” Simply look at the lack of action
following the new SIRC report which identified CSIS improperly accessing without
a warrant personal taxpayers’ Canada Revenue Agency files. No one has been
arrested and charged, much less demoted or dismissed. For all we know, the
practice continues, because SIRC does not have the power to put a stop to it,
much less the resources to stay on top of the issue.
A Case Study of Review’s
Limitations
As another case in point based on real-life circumstances, let’s examine the lengthy CSIS
record of trading information with torturers that led to the rendition and
torture of Abdullah Almalki, Maher Arar, Ahmad El Maati and Muayyed Nureddin.
All of this was documented by two judicial inquiries where government witnesses
shrugged their shoulders, claimed that the post-9/11 terrain was new to them,
and that such unfortunate incidents were unavoidable.
Such claims were patently untrue, as this case example shows. Concerns
about CSIS relationships with human rights abusers go back over several
decades. In its early years, CSIS clearly wished to trade information with torturers
unimpeded by what George W. Bush et al. would later condemn as antiquated
notions of international law and the Geneva Convention. In 1989, SIRC raised concerns
about the CSIS disbanding of a Foreign Liaison Branch which, SIRC said, acted
as "an intermediary... [that could] ‘blow the whistle’ on the
inappropriate dissemination of information abroad."
What
followed is a decade’s worth of unheeded warnings and concerns. In 1991, SIRC declared
quite clearly: “We continue to be concerned about
relations with states having an undesirable human rights record.” But in
classic SIRC-style, the deference shown to CSIS is frustratingly supine, since
“we recognize the desirability of maintaining limited agreements to ensure that
CSIS receives information about emerging threats to Canada’s security.” Apart
from the fact that the definition of threats to the security of Canada is so
over-broad as to include just about anything – and there are countless examples
throughout SIRC reports of over-exaggeration and wrongful labeling of alleged
threats – there is no further comment about the problem of receiving
torture-tainted allegations. What, exactly, was the desirability of maintaining
relations with Assad’s butchers or Mubarak’s brutes?
Did the concern cited in SIRC’s 1991
report change CSIS behavior? No. The review for 1992-93 noted an example where
CSIS “appeared to act without full and prudent regard for a ministerial
directive…to ensure that particular caution was exercised when providing
information to countries that do not share Canada’s respect for democratic or
human values, especially where the information concerned Canadian citizens or
permanent residents. In this case, the Service communicated to a foreign agency
the details of an individual’s plans to travel to another country and, possibly,
to meet with members of a group associated with terrorist activity. The latter
belief was based solely on the uncorroborated beliefs of an informant, and was
disclosed even though the Service was aware of reports of human rights abuses
by security forces in that country. The individual’s full identity was not
known to the Service, neither was his citizenship status or any information on
his previous involvement with terrorist activity, beyond his believed
fund-raising on behalf of the extremist group engaged in the conflict. We
consider that the consequences for the individual and his family, had they been
identified when they arrived in the foreign country, could have been extremely
serious and that a potential tragedy was avoided more by good luck than good
judgment. Fortunately, in this case, they were not identified and returned to
Canada safely.”
It
should not provide much comfort to anyone that CSIS got away with it and that a
potential tragedy was avoided because of good luck.
Did CSIS practices
change when they escaped by the hair of their chinny chin chin? No. In the
review for 1993-94 – in language that would form a cornerstone of the two
judicial inquiries into Canadian complicity in torture led by judges O’Connor
and Iacobucci over a decade later – SIRC again reiterated its concern about
“the possible consequences to individuals whom the Service draws to the
attention of authorities in the region we audited. Adverse information about
someone deemed to be an extremist can have absolutely devastating consequences
to that person and his or her family. The accuracy of the information provided
by CSIS must be a paramount consideration, as well as the importance of the
investigation itself….We were interested to note that the Service saw fit to
provide information to agencies about persons who the Service did not see as
engaged in terrorist activities.”
CSIS
responses as always included patting their SIRC reviewers on the head, assuring
them of good intentions, and moving on to engage in the exact same dangerous
practices. In 1994-95, CSIS entered into new arrangements with countries in
Latin America and Africa with dismal human rights records. “The Committee had
serious reservations about the new arrangements with these two agencies, based
on recent, publicly available information. CSIS said that it relied on
information from Canada’s Ministry of Foreign Affairs about the human rights
issue in these countries. We believe that the Service should also consider
information from other sources, in view of the potential for abuse of the
information it sends overseas.”
CSIS Ignores Human Rights Violations
In
that same review, SIRC raised concerns about how CSIS assessed the risk of
human rights abuses in particular countries, noting “two assessments did not
appear to take into account the recent, publicly available information from
human rights observers who noted an increase in the reports of arbitrary
imprisonment and torture, the latter sometimes involving elements of the
security intelligence establishment of the foreign country….We noted too that
the CSIS assessments did not address allegations of corruption within the
security intelligence establishment and
overlooked significant political incidents in the country which took place in
1994. Our concern was that by not considering these information sources, the
Service did not present a balanced view of those agencies with which it
exchanges information. CSIS responded that it has no mandate to investigate
human rights abuses....SIRC’s position is one that we have expressed
previously: the Service should avail itself of up-to-date, publicly available
reports from reliable non-governmental agencies and the agencies of other
states. CSIS would then be in a position to consider a wider range of views
about the agencies with which it shares information.”
Along
the way, SIRC repeatedly raised concerns about the failure of CSIS to log
exchanges with foreign agencies, which made it difficult for SIRC to conduct
its audits (and easy for CSIS to hide unsavoury information about its
practices). They raise the issue of “the absence of
a paper trail to indicate what was or was not shared with the foreign
agencies.”
In other cases, SIRC examined instances regarding
foreign agency requests “based on the actual or suspected presence of some
Canadians in a region in conflict. [Counter-terrorism] Branch stated that it
was sensitive to the issue of providing information to a foreign agency and
assured us that both HQ and the SLO were conscious of the possible consequences
of responding to the foreign requests. But we were left uneasy about the cases,
not the least because the Canadians posed no threat to Canada's national
security and due to the foreign country's cloudy human rights record.”
So, SIRC once again raised the possibility that CSIS
sharing of sensitive information about Canadians traveling abroad could have
catastrophic consequences. Did this change CSIS behavior? No. In 1995-96, we
see that CSIS shared information with a foreign agency “about the family
members of a person who was of interest to the Service. Furthermore, the
information that CSIS gave to the foreign agency appeared to violate a
restriction on the types of data being provided to services in the foreign
country.”
Did this change CSIS behavior? No. In 1996-97, SIRC
found that CSIS “provided adverse information about a person to two Federal
Government departments and to an allied intelligence agency” that described the
individual as a "witting agent" of a foreign intelligence service, “a
potentially damaging statement not substantiated by the documentary evidence we
saw. In addition, the authority to investigate him was not properly approved;
it did not take into account his immigration status, as required by policy. CSIS
later rectified the error.” Again, the problem inherent in SIRC is clear: it
can discover such problems, but it does not explain how, exactly, CSIS
rectified the error, what damage had already been done, and how SIRC will not
have to repeat such concerns in subsequent reports.
CSIS Refuses to Change Practices
That same year,
SIRC, in auditing an overseas CSIS post, “found that despite poor human rights
situations and political instability generally in many of the countries in the
region covered by the post – in addition to high levels of corruption in some
cooperating agencies – these organizations continued to receive [favourable
CSIS ratings].”
Did THIS change CSIS
practices? No. The train of defiance and willful blindness continued in
1997-98, with “an instance where the Service’s sharing of information with a
foreign intelligence service was questionable,” while, in reviewing an overly
broad request “from a Canadian law enforcement agency to ask several allied
intelligence services to conduct records checks on more than 100 people
suspected of being involved in transnational crime,” SIRC found “the grounds
for some of the requests to be of doubtful validity. For example, one person
about whom information was requested was said to have been ‘caught
shoplifting.’”
In
the years immediately prior to 9/11, CSIS continued business as usual, with
SIRC issuing its annual scold that CSIS “should take all possible care to
ensure that the information it provides is not used to assist in the violation
of human rights.” The fact that such cautions continued to be issued means that
CSIS clearly acts as its own judge and under its own laws, and that these
problems must be systemic given that SIRC annually finds them even in the minor
spot checks it conducts (they are spot checks given how SIRC’s limited staff
and budget prevent it from conducting comprehensive annual audits).
In
the years following 9/11, when Canadians were being tortured in Syria and Egypt
and secret trial detainees here at home were being detained based on
information coming from those same torture regimes, SIRC reviews of CSIS
exchanges with overseas agencies sounded like a broken record. A typical
reminder to CSIS emphasized the spies “will need to exercise vigilance to
ensure that no information received from an agency is the product of human
rights violations, and that no intelligence transferred to an agency results in
such abuses.”
Despite
subsequent judicial inquiries and court decisions documenting CSIS and RCMP
complicity in torture, those agencies continue to operate under Harper-era
ministerial directives allowing them to trade with torturers. But even when
such express permission was not provided, CSIS took it anyhow, as indicated by
the SIRC review reports.
Throughout
SIRC reports is the language of the stern but kindly teacher, one who provides their
ward with important disciplinary direction but has no authority to enforce
decisions or to mete out legal consequences. In 2001, when CSIS was lying to an
Ontario court judge in a warrant application based on information it knew had
been obtained in the torture of Canadian Ahmad El Maati, SIRC was busy holding
the hand of the then 17-year-old agency, reminding them that “CSIS should
strive for the utmost rigour in its warrant acquisition process, ensuring that
allegations in the affidavit are factually correct and adequately supported in
the documentation.”
What to do?
Clearly,
Canada’s state security agencies continue to act outside the limits of the law,
engaging in legally questionable operations and bullying behavior that
terrorizes communities at home while risking lives abroad. Tackling this issue
requires a far more critical approach than that proposed by the academic pair
who were made media heroes in the anti C-51 fight, even though they do not
support its repeal.
Perhaps
a far better approach is to question the mandates of these agencies and their
interpretation of the world. Professors Roach and Forcese, knowing what they do
about the abuses committed in the name of security, are shamefully applying a
bandaid to cover up the pus when what’s really needed is to lance the boil of
state security in Canada.
Instead, their proposed legislation creates additional layers of secret
government while accepting the C51 definition of activities that “undermine the
security of Canada.” For those with short memories, that definition is so
overly broad that it likely includes every reader of this column. Its lowlights
include those whose activity “adversely affects the stability of the
Canadian economy, the financial system or any financial market in Canada
without reasonable economic or financial justification.” This section is aimed
at Indigenous people resisting exploitation of their lands and pipeline
expansion (as well as those brave souls who have shut down Line 9 over the past
few months). It also focuses on anyone who “damages property outside Canada
because a person or entity with an interest in the property or occupying the
property has a relationship with Canada or a province or is doing business with
or on behalf of the Government of Canada or of a province,” which likely is
aimed at those resisting Canadian corporations engaged in toxic mining despoiling
overseas Indigenous lands.
The
definition also applies to peaceniks and anyone who “impairs or threatens the
military capability of the Canadian Forces, or any part of the Canadian Forces,” and anyone who “interferes with the design,
development or production of any weapon or defence equipment of, or intended
for, the Canadian Forces, including any hardware, software or system that is
part of or associated with any such weapon or defence equipment.” Clearly, this
is aimed at anyone trying to stop the production and sale of armoured brigade
vehicles for the beheading regime of Saudi Arabia.
If
we do have a real consultation on state security, perhaps we can start by
tearing up this ridiculous definition of threats to security and naming the
true threats that imperil our future. Step one is repealing C51 and much of
what came before it. Another step is refusing to buy into the false narratives
of national security expounded by state security agencies as well as all
political parties in the House (all of whom thoughtlessly use the term
“radicalization” without an appreciation for the damage it does to targeted
communities). Anything less will only perpetuate the human rights violations
that Roach and Forcese’s secret MPs and Super SIRC will cogitate over behind
closed doors while everyone else, including the direct victims, will be left in
the dark.
