In the early 1970’s, the Director of the CIA used to tell fellow Americans, “trust us”. That turned out to be bad advice – bad for the CIA and bad for the reputation of a country ostensibly dedicated to the rule of law. It’s only prudent, therefore, to ask how the Canadian Security and Intelligence Service will be held to account once the Harper Government’s “Omnibus Bill” becomes law and CSIS’s Office of Inspector General is eliminated.
A number of important commentaries have emerged on this issue over the past few weeks, including one by Craig Forcese in this blog, another by University of Ottawa professor Wesley Wark and a third by Paul Kennedy, whose role as a former senior official and former head of the RCMP Complaints Commission should carry considerable weight. In these and other commentaries, the warnings signs abound.
“All of this leads to an obvious and curious question: how will the Minister responsible for CSIS keep track of the organization in the future?”
The ostensible reason for the measure (and hence its inclusion in this package) is that it’s a money-saving item, merging the Inspector’s General role with that of the Security Intelligence Review Committee (SIRC), the oversight body created by Parliament in 1984. But the argument is spurious. The savings, if any, will be paltry, since the Inspector General’s office is small and had been starved of funds for years. Moreover, the SIRC, as wonderful as its mandate seems, is largely ineffective. Top-heavy, slow and highly legalistic in operation, it has rarely been able to produce reports which carry weight and credibility. It has dropped the ball on several oversight issues, and has none of the operational smarts to look at the issues tackled every year by the Inspector General’s office. Even with a very capable new chairman, Chuck Strahl, the SIRC is a negligible factor in the accountability game.
It’s worth going back to first principles on this one. Because security and intelligence agencies have especially intrusive powers, they are inherently open to abuse and misuse, even when there is no manifestly ill intent. A key traditional tenet of public policy, therefore, is the need to ensure conformity with the law, as well as with agency policies and practices, by creating powerful and effective accountability and oversight regimes. (Canadians might recall the barn-burning episodes of the former RCMP Security Service as a case in point.)
The work of the Inspector General’s office is along these lines, even though it attracts few headlines. Among the questions it poses every year in its public reports are the following: is CSIS living up to the standards of evidence of recent Supreme Court decisions by retaining original notes and documents as it conducts interviews? Does it have sensible procedural safeguards for the sharing of information with Allied services? Are there in place policies and practices which allow for cooperation of police and intelligence agencies in gathering evidence for criminal prosecution? In other words, if the government announces a policy, or the Supreme Court determines the need for new procedures, does CSIS actually follow through? Does it live the letter of the law and the words of policy and procedures manuals?
These examples aren’t as dramatic as those from south of the border, with the CIA toppling governments or developing interrogation techniques in violation of national and international law. But they are important issues, ones on which the Inspector General of CSIS was expected to report annually. Perusing the highly-redacted reports of the last several years (which are still on the internet but which will probably disappear shortly) gives some flavour of the breadth of issues on which everyone in the organization needed to be held to account. Indeed, as the Public Safety Canada website (no doubt also soon to be changed) argues, “[t]he IG [sic]…provides independent assurance to the Minister of Public Safety to support ministerial responsibility for CSIS. In order to provide the Minister with this independent and external perspective to the work of CSIS, the IG and staff undertake a variety of review activities to monitor the compliance by CSIS with its operational policies and to review the operational activities of CSIS[.]”
All of this leads to an obvious and curious question: how will the Minister responsible for CSIS keep track of the organization in the future? How will he ensure that it functions within Canadian law? And for anyone looking at the office of Director of CSIS, wouldn’t that job be more comfortable with an effective oversight agency spotting small problems before they become big ones? With the Inspector General gone in the future, one has to assume that both the Minister and the Director of CSIS have accepted total accountability for the performance of CSIS.
What is surprising is how many Canadians spotted this small item in a huge Omnibus Bill and drew the appropriate conclusions. The elimination of this office is not a budgetary matter. It will eliminate what measure of accountability now exists over CSIS. And therefore it’s little more than another assault on holding police, intelligence and security agencies to reasonable standards of public account. If the head of the CIA today asked Americans to “trust” him, he would be laughed out of court. Is there any reason to believe that Canadians should think differently?