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Opinion

Sorry Liberals, 'Oversight' Won't Fix Menace of a Terror Bill

Party's position on C-51 is downright surreal, and solution to fix it equally flawed.

By Reg Whitaker 8 May 2015 | TheTyee.ca

Reg Whitaker is the co-author of Secret Service: Political Policing in Canada from the Fenians to Fortress America, and an adjunct professor of political science at the University of Victoria.

The House of Commons sent Bill C-51, the Anti-terrorism Act, to the Senate on Wednesday, where it is expected to quickly pass and become law. One-hundred-and-eighty-three Conservatives and Liberals voted in favour, while 96 NDP, Greens and BQ members opposed.

Lurching to its inevitable outcome, the debate over C-51 began to resemble a bad play in which the actors find themselves trapped, fated to continually repeat the same lines. Conservative speakers were like the Walking Dead: insensible but still menacing. NDP and Green contributions were earnest but increasingly bewildered: did Conservative talking points on the bill ever intersect with reality?

The worst piece of demagoguery actually came not from the robotic ranks of the Harperites, but from Liberal Joyce Murray, who asked an NDP MP "whether he would want it on his conscience should there be an attack that leads to deaths of Canadians because of the loopholes that the bill is attempting to fix?"

The Liberal position on C-51 is downright surreal. Liberals voted for a bill they argue is so flawed that it will be necessary to elect a Liberal government to rectify its problems. Like John Kerry on Iraq, they were for it before they were against it, but in their case they were already against it when they were for it, and vice versa. No wonder Pat Martin of the NDP referred to the Liberals twisting themselves into pretzels.

How to explain the Liberals' behaviour? The least flattering interpretation is that they were simply terrorized by Stephen Harper over terrorism. When the prime minister first introduced C-51 with his "great evil descending upon our world" speech to a Tory rally, a quickie poll said most Canadians supported a bill almost none had actually read or knew anything about. Liberals panicked. They foresaw Harper running for re-election on an "you're with us or with the terrorists" platform. In an extraordinary display of political gutlessness, they signalled they were ready to be against terrorism -- even if that meant voting for a bill littered with land mines threatening the rule of law, the Charter of Rights, personal privacy, civil liberties, freedom of expression, and the legitimacy of political protest -- among other things.

Of course, they could not simply sign up for Harper's army. They are Liberals, after all, who aspire to be a big tent party, appealing to all from right to left. So they admitted to concerns about threats to rights and freedoms embedded in C-51, and promised to bring in amendments. Yet they still voted for C-51 when their amendments were all rejected. This was not dealing from strength with Stephen Harper. The Tories were more than happy to accept Liberal support, while contemptuously dismissing Liberal criticism, just as they dismissed all criticism. On C-51, Harper has had the Liberals exactly where he wanted them -- in his iron grip.

Harper's grip could also be a Liberal trap. The more that Canadians got a look at the details of C-51, the less they liked them. Early support quickly plummeted. Critical concern was expressed by everyone from four former prime ministers; former Supreme Court justices; privacy commissioners across Canada; a huge number of legal scholars, political scientists, writers, artists, journalists, etc. There were even muted rumblings of discontent in the ranks of more libertarian Tory supporters. When Tom Mulcair's NDP and Elizabeth May's Greens came out in defiance of Harper's intimidation and vowed to oppose C-51 (and repeal it if they came to office), they were widely lauded as courageous and principled, a sharp contrast to the timorous Liberals.

Since C-51's introduction, NDP support in polls has been gradually rising, while Liberal numbers have flatlined or even fallen off. It is not possible to tie these trends directly to C-51, as many other factors no doubt come into play. But it does give the lie to Liberal fears that Harper could successfully smear opponents as soft on terrorism. Being against C-51 has certainly not hurt the NDP. Being for it has not helped the Liberals.

'Oversight, oversight, oversight!'

As debate wore down, it became obvious that the Liberals had found a deus ex machina they believed could spring them from Harper's grip. Everyone who looked closely at C-51 -- even observers who supported the legislation -- were in agreement that there is one yawning hole in the bill: its lack of any form of strengthened accountability, whether understood as external review or oversight (more about these words later). A bill that enormously enhances the intrusive powers of the state without even a pretence of strengthening accountability for the use of these extraordinary powers is obviously a dangerously malformed policy instrument. Almost everyone said so. The sole exception was Public Safety Minister Stephen Blaney, Harper's C-51 pit bull chihuahua, yapping indefatigably against all evidence that Canada's national security accountability is the "envy of the world." (Bemused foreign observers pronounced it the weakest in the Western world.)

Blaney kept citing SIRC, the Canadian Security Intelligence Service's civilian watchdog, as proof of "robust" oversight. But when evidence of SIRC's grievously inadequate resources and a mandate that limits it to scrutiny of CSIS alone was adduced, Blaney and the Tory cheerleaders switched tactics. Now we were told that the notorious "disruption warrants" introduced in C-51 that would secretly issue 'get out of jail free' cards to CSIS agents in advance of their breaking the law and violating Charter rights are actually a form of rigorous judicial oversight. This argument performs the acrobatic trick of turning judicial enabling of lawlessness into judicial oversight to protect the rule of law.

Critics pointed out the idiocy of these claims, and demanded much improved accountability. The Liberals then sensed that this was a possible way out of their self-imposed dilemma on C-51. Their speaking notes on C-51 sprouted innumerable references to "oversight" as the answer to all C-51's problems. The Liberals would admit, even point out, serious flaws in the bill they were supporting. Their plan was to get elected to office and bring in a form of parliamentary oversight, in which a security-cleared committee of MPs would scrutinize national security operations and make sure everything was being done on the up and up. During the debate on C-51, "oversight" became the all-purpose, all-weather mantra for Liberals. At one point, exasperated by NDP and Green probing of flaws, one Liberal MP shouted that the answer was simple: "Oversight! Oversight! Oversight!"

Assume for a moment that the Liberals are sincere in seeing many positives in C-51; that it is a "good first step" as they claim, and that they were not simply intimidated into support. Critics might accept that the stated aims of the bill -- to stop terrorist threats to innocent lives; to control use of the Internet to promote jihadi propaganda and recruitment; to assure better and more effective law enforcement, etc. -- are fine and laudable. Most critics part company, however, in pointing out that no effort was made to show how existing laws are inadequate, nor why such grossly disproportionate means are proposed to achieve incontrovertible aims. The NDP and Green positions, supported by many independent critics, is that the bill is so seriously flawed that it is unsalvageable, should be shot down and replaced by something that does not insist that liberty must be sacrificed for security.

Are oversight claims credible?

How credible are Liberal claims for the cleansing properties of oversight? To answer these questions, we should take a moment to examine just what "oversight" means, and what its limitations are.

Accountability is one of those buzz words (like "democracy") that everyone is in favour of, but few agree upon an exact meaning. Accountability in national security is a particularly vexed issue, given the heavy secrecy surrounding all its aspects. How do you introduce any degree of transparency into a process fundamentally defined by secrecy? 'Review' and 'oversight' are words used to describe two broad approaches to bringing secret operations into some form of accountability. SIRC is a review committee that reviews operations of CSIS post facto, after the event. SIRC does not poke into ongoing operations. Opposition MPs pointed to this as a serious limitation on SIRC's capacities. When Liberals (and NDPers) spoke about oversight as an alternative, they were suggesting that a parliamentary committee on national security could scrutinize CSIS and other agencies not just after the fact, but on a real time or near-real time basis.

That would indeed represent a huge enhancement of accountability. It is also wildly unrealistic. Can anyone imagine CSIS and the RCMP carrying out secret operations with a group of politicians, even politicians sworn to secrecy, looking over their shoulders and telling them what they can and cannot do?

Any practical oversight in this sense can only be carried out within the executive branch. In fact, the CSIS Act in 1984 did set up another mechanism of executive accountability, the inspector general, which was to be the eyes and ears of the minister for what CSIS was doing. Although never matching the authority and clout of the inspector general of the CIA, the CSIS IG did perform executive oversight -- until the Harper government simply scrapped the office without explanation and merged its functions into an already resource-strapped SIRC. The Harper government was not interested in exercising its own oversight over its security agencies. C-51 would instead let them off the leash.

A parliamentary committee with appropriate security clearance would be a laudable innovation, but not if it were expected to do what the IG should have been doing. Such a committee could appropriately exercise scrutiny over national security policy and the broad parameters of how the agencies have been performing. From time to time, it might even call the agencies to order when they are judged to have overstepped their bounds or to have failed in their responsibilities. That's assuming that such a committee was provided the staff and research resources available to the U.S. House and Senate intelligence committees, which have never in the past been available to Canadian committees.

Even assuming a Liberal government set up such a committee, with powers and resources to match ambitious aims, would C-51 somehow be transformed from an ugly toad into a handsome prince? It is hard to see how. Take the disruption warrants, applied for in secret with no one but CSIS and a judge present, executed in secret, with not even a post-warrant review by the judge. Targets of disruption or dirty tricks will likely never even know they have been targeted. Since CSIS agents will have been given secret get-out-of-jail-free cards in advance of law-breaking or Charter-violating actions, what exactly can a parliamentary oversight committee actually oversee, or rectify? The same goes for the sky's-the-limit definition of advocating or promoting "terrorism in general" even in private conversation. What can an oversight committee do to ensure freedom of expression, when the law clearly allows silencing of ideas on the broadest of ideological pretexts?

Don't forget the Snowden example

In any event, we should not overestimate the capacity of any accountability mechanisms, review, oversight, or whatever, to bring greatly enhanced transparency into national security operations. A parliamentary oversight committee requires full security clearance of its members if it is to be effective. But that also constitutes a serious limitation. Security-cleared politicians are inside the loop. Once inside and privy to national secrets, they are bound not to disclose outside the loop what they have learned, even to other parliamentarians, let alone the public. Call it a catch-22.

To see just how debilitating this catch-22 can be, we can look at the now-notorious case of U.S. national security director James Clapper's testimony to the Senate intelligence committee. Asked if the American government was carrying out mass surveillance of the domestic communications of citizens, Clapper offered a flat denial. Senators knew this to be untrue, as they had been briefed -- in secret -- about the mass collection of metadata on American domestic communication. But they were bound not to disclose this. Staffers went to Clapper privately and offered him the opportunity to make a more truthful statement, but Clapper declined.

Then, whistleblower Edward Snowden unleashed his revelations on the world, including irrefutable proof that mass collection of American metadata was being carried out by the NSA. Official accountability was unable to call Clapper, the most senior intelligence official in Washington, to account. Instead, it was left to the guerrilla accountability of the whistleblower Snowden, who had to flee to Moscow to avoid criminal charges for the revelations.

Certainly we should have a great deal more official accountability over national security operations in Ottawa. The Maher Arar commission in 2006 called for integrated accountability to match counter-terrorism activities that are increasingly integrated across agency lines and across borders. The Harper government has ignored this. But even improved national accountability stops short at national borders, despite the close integration of Canadian activities with our so-called Five Eyes partners, not to speak of other countries with dubious human rights records.

The Liberal mantra of oversight as a shield to cover their capitulation to Harper on C-51 is just not good enough. Given all its inherent limitations, oversight runs the risk of yielding to its other dictionary meaning: "an unintentional failure to notice or do something." C-51 will be on the books by the time of the October election. We can wait for years for judicial decisions to rule whole swaths of this legislative monstrosity unconstitutional, or we can elect a government that will toss it out and start over again.  [Tyee]

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