The tabling in Parliament this past week of the annual reports of Canada’s two spy watchdog agencies conveys a hidden message. The message is that the existing system to hold intrusive intelligence gathering agencies to account is working, in fact, it is working better than ever.
This message will please the Conservative party and may take some wind out of the sails of the Liberal government’s planned reforms. The former Harper government consistently argued that the existing review bodies, the Security Intelligence Review Committee, which keeps a watch on the Canadian Security Intelligence Service (CSIS), and the Commissioner of the Communications Security Establishment (CSE), which holds our electronic spy service to account, were all that Parliament and the Canadian public needed by way of scrutiny of our much expanded post-Sept. 11 intelligence system. The Conservatives turned a deaf ear to calls for an expanded review of intelligence during the acrimonious debate over Bill C-51, the flagship revision of the anti-terrorism laws, and derided the notion that Parliament should play a greater role.
The Liberal government has promised to create a new Parliamentary review body that will focus on security and intelligence matters and whose members will, for the first time in Canadian history, have access to classified briefings and documents. Public Safety Minister Ralph Goodale has gone further than this by indicating that the government is examining additional reforms to broaden the scope of review of Canadian intelligence activities – reforms that might involve abolishing the existing review bodies.
What do the recent annual reports tell us about the credibility of the polarized arguments about the adequacy of Canadian watchdog agencies? To be fair, both the Security Intelligence Review Committee (SIRC) and the CSE Commissioner’s Office (OCSEC) have delivered strong reports and both are emerging from earlier periods of darkness.
But the fact that the spy watchdogs have demonstrated they can do their job, does not mean, as the Conservatives would have it, that the job they do is adequate. The spy watchdogs are pre-9/11 creations, built for an era when Canadian intelligence was relatively modest in size and capabilities, when the focus was on controlling potential law breaking and scandal, and when public expectations around being informed about spy activities were even more modest. Much has changed.
The existing watchdog agencies are shackled in their ability to respond to the new realities of expanded, more complex intelligence operations, and of higher levels of public expectations around transparency. They cannot follow the “threads” that connect the interconnected world of multiple Canadian intelligence agencies beyond their remit. They remain siloed and unstrategic in their review capacity. The existing spy watchdogs are constrained by a focus on issues of legality and government authority and not able to stretch their mandates to answer key questions about effectiveness. They are shackled to secrecy laws, which limit their ability to tell the full story of what they uncover, except to those within the “ring of secrecy.” That ring of secrecy does not, at the moment, include Parliament and its standing committees. So Parliament receives reports from the review agencies that it cannot fully understand or probe. The same goes for the media.
In contemplating a reform agenda for intelligence review, the Liberals need to hold fast to their promises and their current thinking. They need to create a Parliamentary committee with access to secrets and they need to reshape an outdated independent review system. The challenge will be not to throw out babies with the bathwater. If the existing watchdog agencies are abolished in favour of a new body, a super-SIRC or Inspector General (on the Australian model), then care will have to be taken to retain the expertise of SIRC and the CSE Commissioner’s Office. If a new review body emerges with a greater emphasis on measuring performance, the questions of lawful authority must not be relegated to a distant second place. If a new Parliamentary body is to perform well, it will have to do so in concert with a new and expanded external watchdog agency, without creating a review system that overburdens spy agencies themselves. While we pursue new forms of reassurance about intelligence operations, we will still want those agencies to spy, and spy well.