Canada's
Sorely Needed Enhanced National Security Oversight and Review May Be Near
by Scott Newark
Special to IPT News
May 4, 2016
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 They're 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 Bill C-51 terrorism legislation debate 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.
Related Topics: Scott Newark,
Canada,
national
security, oversight,
Ralph
Goodale, Ali
Mohammed Dirie, interagency
cooperation, C-51
terrorism legislation, Security
of Canada Information Sharing Act, Canadian
Security Intelligence Services, Vic
Toews
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