The Sixth Estate

Canada’s two and a half national intelligence services — the RCMP, Canadian Security Intelligence Service (CSIS), and Communications Security Establishment (CSE) — have a remarkable ability to float under the political radar in this country. Recently, however, a couple of stories have brought them temporarily back to the surface. First, it’s been suggested that CSIS and the RCMP may be recklessly sharing Canadians’ information with the Americans, despite the fact that this led to the abduction and torture of numerous Canadians several years ago. Second, some progressives are concerned about Harper’s creation of a new Cabinet committee that will handle national security and intelligence issues.

Now, the first doesn’t surprise me, and the second doesn’t concern me — that sort of political oversight happens anyways, folks. What does concern me is the creeping growth in the surveillance state which has happened since 2001, and has gone mostly unremarked in the media. The new stories suggest the process is continuing — and perhaps accelerating. That’s not surprising, either. Intelligence budgets have basically doubled over the past decade, the only government programs to get that sort of boost, and CSE is now powerful enough to get $800 million buildings complete with an ice rink and a Zamboni. But I’m going to talk about something else, two programs you may not have heard of: Section 16, and the Security Intelligence Review Committee.

Actually, before getting to Section 16, it’s important to understand some history. Canada has no “foreign intelligence” program, akin to the Central Intelligence Agency in the US or MI6 in Britain. The reasons for this are mostly office politics, not principle. But there is Canadian security intelligence, and herein lies the problem. By the mid-20th century, all Western democracies agreed that there was a basic disconnect between what was acceptable in spying on citizens, and what was allowable in spying on foreigners. Citizens have rights to privacy, must be presumed innocent, can’t be burgled and mugged and murdered in a dark alley, etc. Foreigners don’t get these rights. So the CIA spies on foreigners while the FBI spies on Americans, MI6 spies on foreigners while MI5 spies on Brits, and CSIS, well… CSIS currently bucks the trend by doing a little of everything. This confusion is one of the basic reasons why we have seen more abuse of power by intelligence in recent years.

Historically, it takes about 25 years for an intelligence service reformed with all the good intentions in the world to careen into corruption and abuse of power. That’s what happened to the RCMP’s Security Service during the 1970s: they collectively forgot there were supposed to be limitations on their work, and they began to commit crimes like arson and theft, and to frame Quebecois dissidents with forged letters and stolen explosives. The result was a royal commission, the dismantling of the Security Service, and its replacement by CSIS. The RCMP were banned from doing intelligence work again; quite simply, they couldn’t be trusted to uphold the law on the one hand and spy on people on the other. And CSIS was given a curious dual mission: it could spy on Canadians who were communists and various other flavours of dissident, and it could collect intelligence on foreign targets, but it could only do it in Canada and it could never confuse the two. That’s Section 12 and Section 16 of the CSIS Act, respectively, as well as various other sections.

I want to clarify: this is the intelligence framework that is defined by law. That’s important, because it means that the current intelligence system is illegal. The RCMP has reactivated their security intelligence programs, which almost immediately got into severe trouble when they handed over to the Americans a CD with personal information on a large number of innocent Canadians. The Americans used that information to arrange the abduction and torture of Canadians like Maher Arar, Muayyad Nureddin, Ahmad Elmaati, and Abdullah Almalki. The RCMP is not supposed to have security intelligence programs.

At CSIS, meanwhile, the expansion of power has gone in other directions. In its 1991 annual report, which the organization is no longer making available online, it said that CSIS was a defensive organization that operated only in Canada (except for some liaison programs abroad), where it was allowed to do only limited foreign intelligence, always in Canada, only at the request of the military or Foreign Affairs, and only against non-Canadians. Things have changed. In the 2009 annual report, the director speaks at length of his “foreign role,” including support for the military abroad, which is actually banned in the CSIS Act. Oops. CSIS says it is taking advantage of a loophole in the CSIS Act, the drafter of which forgot to include the words “in Canada” in section 12 (security intelligence) the way he did in section 16 (foreign intelligence). So CSIS claimed this loophole meant it could do security intelligence anywhere it wanted, and then unilaterally defined everything as a national security issue.

That transformation was complete by 2002 or 2003 at the latest. In 2007, the federal court ruled that this was actually an illegal move by CSIS. You won’t find any reference to that ruling in the public report; so far as I can see, CSIS is simply ignoring that ruling altogether. Instead they’ve expanded their “Section 16″ program and, according to SIRC, they now juggle work back and forth between the two sections to keep things “legal.” In short, they are unabashedly running foreign intelligence operations, which according to the annual report includes recruiting and meeting spies abroad — corrupting, suborning, and manipulating foreigners, in other words.

The reason CSIS was never given real foreign intelligence powers in the first place was because the American abuses of the 1970s proved that inevitably, a spy service eventually begins treating citizens like foreigners and abusing their rights accordingly. A few years ago, CSIS found that a young Canadian-Kuwaiti man was an Al-Qaeda member, although he had fled after his cell’s plot was disrupted and technically he had committed no crime under Canadian law. So CSIS abducted him, carried him to the US (where the law is more, uh, flexible on this point), and handed him over to the FBI. Afterward they claimed it was legal because they had done all this with his voluntary consent. Yeah, right. They also said they did not need to respect Jabarah’s Charter rights because they were not a police service, which is pretty much just as self-serving and even Orwellian as it sounds like.

There are obvious problems here, and a rather cowardly Parliamentary committee recommended we accommodate them by just amending the law to let them do whatever they wanted, retroactively. Unfortunately, this completely misses the point. Sometimes it happens anyways, as it did with the Security Service. Basically the committee recommended surrendering to CSIS.

Now, the Trudeau and Mulroney governments also arranged an oversight commission to make sure CSIS stays in-bounds. It’s called the Security Intelligence Review Committee, and it is mandated to produce a public annual report, a secret report to the government, and any other reports as necessary to investigate complaints filed with it by CSIS employees, by the government itself, or by any Canadian. Of course, if CSIS does go off the reservation, almost all the details of the SIRC investigation would be classified. So we have to trust them. Can we?

Not really. In its last annual report, SIRC did note that in its opinion the “blended” Section 16 program is illegal. But it’s not a court and it can’t stop the process — nor, because of the censorship laws, can it tell Canadians what specific abuses might have made it concerned in the first place. All it can do is issue a “recommendation” that CSIS be given proper “guidance” by the government. The same is true of its review of the Jabarah abduction. That doesn’t help Jabarah. He’s serving a life sentence in a supermax prison now. Unlike Arar, Jabarah isn’t “innocent” — he really was a member of an Al Qaeda cell. But at the time, that wasn’t illegal in Canada. So CSIS abducted him and transported him to somewhere it was illegal: America.

We should not be surprised by the fact that SIRC does nothing. The government prefers it that way. As I have noted before, the entire SIRC board right now consists of a slew of old retired politicians, none of whom have any background in security work. To the contrary, most of them actually have backgrounds in healthcare. It’s not surprising to discover that they’re completely out of their league here.