With all of the talk about the need for more measures to combat domestic terrorism, the question of oversight has been coming up repeatedly. As it stands, the oversight we have over our national security agencies is fragmented and much of it is fairly opaque when it comes to the kinds of public reporting that it does. For example, the report of the CSE Commissioner lists the reports that he received on the activities of our signals intelligence agency, but there are almost no details as to the kinds of problems that he encountered.
So what do we do about it? Well, one of the most obvious solutions is to implement some more robust oversight, and the most obvious and overdue forms of that oversight is a committee of parliament. It’s been a recommendation since the original anti-terror legislative committees in the post-9/11 environment, and it was something that all parties agreed to. Legislation was tabled, but then Paul Martin’s government fell, and it was never reinstated. There have been a couple of attempts to revive it since then, and currently there are a couple of bills before Parliament – Wayne Easter’s in the House of Commons, and now-retired Senator Hugh Segal’s bill in the Senate, both of which would establish a security-cleared committee of parliamentarians to provide that oversight.
Going one step further is Liberal MP Joyce Murray’s Bill C-622, which not only would create such a committee, but also adds a few other checks and balances into the system, such as ensuring that metadata is included in relevant legislation, and removing the authority to retain intercepted communications from Canadians from the hands of the minister and puts it instead into the hands of a security-cleared Federal Court judge, giving that further separation from the government of the day. And Murray’s bill is currently before the House of Commons, having had its first hour of debate and awaiting its second before the vote on Second Reading. It’s something that can be implemented before any of the other bills on security oversight that are on the table, and Murray did her due diligence in the drafting of the bill by consulting with experts like Wesley Wark, so that it would capture the areas where there is currently insufficient oversight.
The government, however, is reluctant to sign on. Their favourite excuse is that this kind of oversight would be “duplication,” or “another expensive bureaucracy,” but neither argument holds water. There would be almost no duplication of oversight because currently there is insufficient oversight for things like CSE – the Commissioner being one part-time retired judge – let alone the issues with the Security and Intelligence Review Committee – two of the five seats are currently unoccupied and CSIS has not cooperated with them. The government disbanded the Office of the Inspector General at CSIS claiming duplication with SIRC – never mind that they had different areas of responsibility. It’s hard to see how the Civilian Review and Complaints Commission of the RCMP would be able to do much in the way of proactive oversight given that their mandate is to be a responsive body that relies on complaints first being lodged. And then there are the other agencies that have national security implications, like the Canadian Border Services Agency and Citizenship and Immigration, which don’t have independent oversight bodies to speak of. Where in all of this is there duplication?
The other issue with the oversight bodies as they exist is that they are all siloed, and cannot cooperate on investigations of conduct in an age where these national security bodies are increasingly cooperating and sharing resources, thus hindering their civilian oversight capabilities. This has long been a complaint of people like the Privacy Commissioner, who is statutorily unable to coordinate an investigation of privacy breaches with counterpart commissioners, be they provincial or other federal watchdogs. To have one oversight body that can look over the national security apparatus of this country in totality and see where there are gaps, where the cooperation is breaking down, or where things are not working currently, would be of tremendous value, not only for the sake of oversight but to ensure that these bodies are getting it right in their duties.
The argument about an expensive bureaucracy rings false because this would be a committee of parliamentarians, and would not require added infrastructure or staffing to carry out its duties. Those involved would simply need to take the proper oaths of secrecy to ensure that what is needed to be kept secret for national security reasons remains so, while still providing the necessary oversight that parliament needs. And it should be driven home that Parliament needs to have proper oversight capabilities if it is to hold government to account, which is the whole point of Parliament to begin with. It’s not good enough for a government to say “just trust us,” and show them the redacted or vaguely worded reports of the current oversight bodies as proof that everything is tickety-boo.
It also makes no sense for the government to try and hold up these kinds of necessary oversight mechanisms for the sake of frustrating the opposition, or to try and frame the current global and domestic situation as one that needs an increased response without the corresponding increase in oversight. They agreed to the need for this kind of oversight already – why is today any different? Do they fear that an opposition party would somehow violate the oaths to gain partisan advantage? If so, it’s short-sighted because they won’t be in government forever and will one day be in that opposition position of needing to hold the government of day to account. That’s the way the system works.
Parliament has before it the opportunity to do something constructive about national security in this country, to ensure that the way in which investigations in this country are conducted are better, to a higher standard and with the gaps identified. They should take it.
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