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Canada's spies versus others spies abroad. Illustration by Anthony Jenkins (Anthony Jenkins/The Globe and Mail)
Canada's spies versus others spies abroad. Illustration by Anthony Jenkins (Anthony Jenkins/The Globe and Mail)

Andrew Steele

Who watches CSIS? Add to ...

Shortly before Pearl Harbour, Franklin Roosevelt determined to secretly build an atomic bomb. His Secretary of War, Henry Stimson, asked the Speaker of the House, Sam Rayburn, to put billions of dollars aside for a project he only described as critical to national security.

" I don't want to know why," Rayburn famously answered.

The Texan conspired with a handful of powerful committee chairmen to pad the War Department budget with billions of extra dollars for a black box project simply because the President said it was vital to the national interest.

Rayburn acted this way because he trusted Roosevelt completely to define the national interest.

But decades of subsequent challenges with secret projects convinced the lawmakers in the United States to provide legislative oversight of these covert activities to ensure they are truly fulfilling the national interest.

Revelations earlier in the summer show that oversight may have failed. Former vice-president Dick Cheney apparently ordered the CIA to keep secret from the U.S. Congress a program they established.

The nature of this program remains highly speculative. The Times article says the program did not involve interrogation or domestic activities.

However, the Wall Street Journal cites a former CIA official that it was a kill-or-capture program aimed at senior Al-Qaeda leaders that never got off the ground. In the early days, it may have discussed a targeted assassination program as an alternative to using missile attacks.

The Manchester Guardian says definitively that it was as assassination program and the program was illegal as it would have operated in friendly countries without informing their governments of the activities underway.

And a recent expose says the CIA hired Blackwater, the shifty mercenary security firm, to undertake the assassination program.

But no who really knows what was going on is talking. The CIA is obviously not planning on holding a press conference and the handful of Congressional leaders and Intelligence Committee members who have now been briefed are bound by confidentiality.

If and when the truth comes out, the underlying problem is one of authority.

These are not the days of Depression-era America, where billions will be spent on covert action because a president asks.

Intelligence services fall under extreme scrutiny because their operation must always be in the national interest, and never subsumed to any other personal, political or partisan interest. Robust disclosure mechanisms ensure that programs aimed at foreign threats do not get used against domestic challengers.

Congressional oversight was forced on the CIA in the 1970s.

In the paranoid era of Watergate, Seymour Hersh broke the story of the CIA "family jewels" that included assassination programs aimed at foreign leaders, domestic political activity against anti-war groups and other "dissidents," surveillance of journalists who were critical of the Nixon administration, and even absurdities like spying on former Beatle John Lennon.

Following these disclosures, the intelligence committees of both the Senate and the House were formed and - after a period of intrusive turf wars - settled into a focused and cooperative relationship with the intelligence community.

Rules were established around how domestic surveillance would be accommodated and covering the interaction of the courts and the intelligence community. It was made a crime to reveal the identity of an intelligence professional.

More critically, the purse strings were tightened.

Congress cut of funding to UNITA rebels in Angola, because the funding was counter to American values. A reader of " Charlie Wilson's War" can see how a single Congressional representative can influence intelligence policy through approval of budgets, following the Golden Rule that "he who has the gold, makes the rules."

This relationship was sorely tested at times, particularly in the Iran-Contra scandal, which was all about using Iranian cash to fund Contra rebels illegally, after Congress had cut off authorization of the CIA to fund the insurgents.

But the precedent was in place that the executive could not conduct intelligence operations alone and without review and approval by legislative oversight. It is the betrayal of this principal that is at the heart of the looming scandal in the United States, one that threatens to see a former vice-president on the stand answering questions about criminal abuses of power.

Here in Canada, the same attitude of distrust toward the intelligence community was ignited by revelations that the RCMP, then operating as an intelligence agency as well as a police agency, had engaged in absurd illegal activities like stealing membership lists from the Parti Québécois and burning a barn where members of the Black Panthers and FLQ were rumoured to be planning a meeting.

(Absurd intelligence schemes are not unique to Canada. Just remember the CIA's plan to embarrass Fidel Castro by poisoning him to have his beard fall out.)

The McDonald Commission in 1977 recommended the creation of a civilian agency to better accommodate democratic values in intelligence gathering. This was eventually enacted after a very lengthy debate over the appropriate types of oversight and review.

The amazing thing is that, despite this lengthy discussion, the new intelligence agency, CSIS, has virtually no oversight outside of Cabinet.

There is need for the Federal Court to authorize some domestic activities, including deporting non-citizens currently in the country who are deemed threats. But as Nathalie Des Rosiers from the Canadian Civil Liberties Association notes, this judicial review relies completely on information provided to the judges by CSIS, with limited or no opportunity for the accused to defend themselves.

While controversial, this process has been subject to numerous Supreme Court challenges and at least has the benefit of a robust legal framework and an open debate.

More troubling is the lack of oversight by Parliament.

Rather than Parliament, CSIS is reviewed by a small civilian agency of appointed eminent Canadians, the Security Intelligence Review Committee (SIRC). SIRC is not equivalent to the Congressional Intelligence Committees. It does not control CSIS's budget, nor does it approve of any activities taken.

Rather SIRC is what its name implies: a review committee. They undertaken retrospective examinations of activities that they become aware of, typically because CSIS tells them about the activity in an annual report. They also investigate complaints made about CSIS activity.

The role of SIRC is described beautifully on its website:

"It is important to note that SIRC examines CSIS's performance on a retrospective basis, so it is not providing oversight of current CSIS activities. However, by preparing "snapshots" of highly sensitive CSIS activities over more than two decades, SIRC helps Parliament to determine whether CSIS is discharging its mandate effectively."

There are two important lessons in there.

First, SIRC can only review what happens if they know it happened. According to past members, SIRC members are not briefed in advance of activity, nor are they routinely informed about activity in retrospect. The control of information to SIRC is typically at the discretion of CSIS.

Second, SIRC provides highly sanitized "snapshots" of past performance to Parliament, which is the only way Parliament is able to determine if CSIS is discharging its responsibilities properly.

This raises some uncomfortable questions about the level of oversight of CSIS.

There are no allegations of misconduct from our intelligence service, and no reason to suspect anything untoward.

But the truth is that CSIS is overseen almost exclusively by the Cabinet. There is oversight function by the inspector-general and deputy minister for the Public Safety department, but even those two individuals report directly to the minister, as this helpful chart on the CSIS website illustrates.

No one wants operational information made public that might jeopardize an investigation.

But the demands of a free democracy require a level of accountability greater than trusting the professionalism of two civil servants and one elected official to oversee our intelligence community, and five appointees to review information those three people choose to share.

This sin that vice-president Cheney may have committed is assuming he alone could define the national interest.

The laws of the United States set out that - when it comes to intelligence work - the definition of national interest must be set with input from the Democrat and Republican leaders of the House and Senate and of the Intelligence committees. This ensures a variety of perspectives and a robust debate prior to action which may repulse a large segment of the country.

In Canada, we still allow the national interest in intelligence to be defined solely by the Minister of Public Safety and the Prime Minister.

There is a role for Parliament in reviewing the activities of CSIS. But the current challenge is accommodating how the Bloc Québécois would be incorporated into this type of oversight, when a significant segment of the English Canadian community reject their fundamental values as de facto treason.

Instead, it may make more sense to maintain the delegated responsibility invested in SIRC, but to empower that committee to act as an oversight board, rather than just a review board. Its membership of former premiers, ministers and eminent Canadians provides enough diversity of opinion to approximate national views, while keeping the circle of oversight as small and respected as possible.

This would broaden oversight beyond the Cabinet, allowing the public to invest greater trust in CSIS and improving their ability to both secure funding and complete their essential task of defending our nation.

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