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Rights + Justice

Real Oversight Needed for Law-breaking National Security Agencies

Seventh in a series to help you participate in the federal consultation on national security.

Micheal Vonn 9 Dec

Micheal Vonn is the policy director of the BC Civil Liberties Association.

[Editor’s note: The federal government’s consultation on national security provides a rare opportunity for Canadians to weigh in on critical issues like Bill C-51. The government has released a Green Paper backgrounder to shape the consultations. But the BC Civil Liberties Association notes that “in the main, it reads like it was drafted by a public relations firm tasked with selling the current state of extraordinary, unaccountable powers and if anything, laying the groundwork for extending those even further.” In response, the association has prepared its own series of Green Papers to help you consider an online submission to the national security consultation before the Dec. 15 deadline. The Tyee is pleased to republish the series with permission from the BCCLA.]

National security accountability — everyone says they want it. But not everyone means the same thing when they use the language of “accountability.”

The dangers of “faux accountability” are always serious, but especially so on national security matters where secrecy can mask abuses and law breaking.

There is a growing concern that what the government might mean by “accountability” is primarily the creation of a Parliamentary oversight committee for national security matters. Bill C-22, which would create such a committee, is working its way through Parliament right now. An oversight committee is long overdue, but it is entirely inadequate as a means of achieving accountability.

What’s the problem?

There is a crisis of public confidence in national security agencies that appear to break the law with no consequences. Law-breaking by national security agencies is regularly rewarded with changes to laws that expand their powers even further.

Here’s what we need:

• a Parliamentary oversight committee that has real powers to do its job;

• integrated expert review and monitoring;

• the repeal of “Bill C-51”; and

• measured and evidence-based legislation going forward.

Fix Bill C-22

While Bill C-22 would create a Parliamentary oversight committee, there are serious concerns about the legislation.

The committee would lack independence, and could be — and will certainly be seen to be — a mere extension of the executive branch of government. It would not have the ability to ensure it receives relevant information or to initiate independent investigations. And the committee will not be able to ensure complete and robust reporting to the public.

The government is currently proposing a model of committee known to be flawed and inadequate. It is completely ridiculous to suggest that we take a wait-and-see approach to the kind of committee that is already an example of What-Doesn’t-Work in other jurisdictions.

In fact, we don’t need the evidence from elsewhere to know that a committee that can have its access to information vetoed by the very departments it is trying to investigate is one that is likely to be pretty darn unsuccessful in “overseeing.”

In addition to Parliamentary oversight, Canada urgently needs adequately resourced, integrated expert review of all the national security agencies, including those that currently operate with minimal or no oversight, like Canada Border Services Agency and the Financial Transactions and Reports Analysis Centre (FINTRAC).

Integrated expert review has been urgently called for as long ago as the 2006 O’Connor Commission report into the detention and torture of Maher Arar. As national security agencies’ work becomes increasingly integrated, it is critical that the bodies that review these agencies have mandates to match, and aren’t prevented from investigating shared national security files and activities because they only have the narrow authority to review single agencies.

The final component of the three-tiered model of accountability is an independent monitor, as in the U.K. and Australia. The independent monitor has robust access to secret information, and its job is to provide expert analysis of existing and proposed national security legislation.

This three-tiered model provides more accountability infrastructure than for most areas of government. But it is necessary for two reasons.

National security is unique in terms of the seriousness of the consequences of both failures and abuses, the operational secrecy required and the extent to which secrecy claims can be abused.

Crisis? What crisis?

There is a crisis of accountability in Canadian national security agencies.

The crisis is one that saw the Canadian government silent in response to the sweeping surveillance abuses disclosed by the Snowden revelations, despite our indisputable involvement as a member of the Five Eyes intelligence coalition and the obvious implications for Canadians’ rights.

The crisis is one that has seen Canada fail to implement the recommendations of three major inquiries on national security matters: one on the Air India tragedy and two on Canadians sent to other countries where they were tortured.

The crisis is one in which the public has learned CSIS has breached its duty of candour to the federal courts for 10 years and has been illegally collecting Canadians’ telecommunications metadata in violation of the CSIS Act. That particular crisis was like Act II of the slightly earlier crisis in which the public discovered that it is possible that every piece of Canadians’ personal information currently held in the CSIS bulk data holdings has been illegally acquired, as the Security Intelligence Review Committee (SIRC), in its first ever audit of these data holdings, found a complete failure to abide by the legislation.

The crisis is one that has been ignited by the scandal of police and intelligence agencies spying on journalists.

It’s not just that bad things have happened in the national security sphere. When bad things are discovered, there are no consequences for the agencies violating Canadians’ rights.

It is increasingly evident that there is a culture of impunity in our national security agencies. This should be no surprise given the habitual lack of repercussions when they break the law. The government would be hard pressed to come up with any examples of consequences for national security personnel found to be violating the law.

Instead, a discovery that national security agencies are breaking the law leads quickly to changes so that what was once illegal becomes legal — rewarding the violation, not punishing the violator. And this pattern of encouraging impunity has had a corrosive effect on public confidence.

Failures of accountability have created a negative feedback loop leading to worse and worse laws. Tossing some elements of “accountability” into the mix at this stage is not going to remedy the dangerously flawed and over-broad laws that currently exist, or the further radical extensions being considered.

Repeal Bill C-51

No committee or oversight bodies can provide meaningful accountability in the face of dangerous and recklessly over-broad powers granted to agencies working in national security.

It is critical that the powers given to agencies involved in national security be measured, proportionate and demonstrably needed. The radical expansion of powers that were introduced by Bill C-51, the Anti-terrorism Act, 2015, fails to meet this test.

The measures were never justified and present an even more serious danger to the rights and security of Canadians in light of the now-anticipated reshaping of U.S. national security policy.

The government’s consultation on these issues has used the concept of “accountability” very narrowly.

But you don’t have to do the same. If you like, you can tell the government that your version of national security accountability includes a measured, evidence-based framework of laws at the outset.

You’ve got till Dec. 15 to add your voice to the online consultation and tell the government you want real accountability from national security agencies. There are some useful aids, including the full BCCLA series breaking down the issues and this great tool from OpenMedia.

And while the national security consultation ends Dec. 15, our shared work in national security accountability is not going to end. Stay tuned for an active 2017.  [Tyee]

Read more: Rights + Justice, Politics

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