Monday, February 29, 2016
The God That Fails: C-51, Review Committees, and the Dangers of Window Dressing
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.