Leah West is an assistant professor at Carleton University and a co-author of the book National Security Law. Stephanie Carvin is an associate professor at Carleton University, and Thomas Juneau is an associate professor at the University of Ottawa; the two are co-authors of Intelligence Analysis and Policy Making: The Canadian Experience.
From China to Afghanistan, Parliament has taken a greater interest in national security in recent years. In our view, this is welcome – parliamentary scrutiny of international threats has been lacking for decades. However, the opposition’s request for investigations into the firing of scientists at the National Microbiology Lab and stalled efforts to bring in Afghan refugees requires the consideration of classified information by a body that does not have any formal process to receive, store and access such information securely.
This is not a new problem. In 2010, all parties negotiated the establishment of an ad hoc committee of four MPs (one from each party) to review classified documents related to the Afghan detainee transfer controversy. Once the committee determined what information was necessary for its work, a panel of three eminent jurists reviewed the information to decide if and how it could be released publicly without compromising national security. That investigation ended, however, once the Conservatives under Stephen Harper won a majority in 2011.
Moreover, experts and opposition MPs have for years decried the fact that Canada was one of the few Western democracies without some form of parliamentary body tasked with the review of intelligence and national security matters. This situation was rectified in 2017 when the government passed the National Security and Intelligence Committee of Parliamentarians (NSICOP) Act.
Since its inception, however, opposition MPs have consistently argued that NSICOP lacks the authority necessary to hold the government accountable. First, NSICOP is not a committee of Parliament, but an executive committee of MPs and senators from all parties. This means it cannot compel information or testimony. Second, the Prime Minister appoints its members (in consultation with the opposition) and selects the chair. This differs, for example, from Britain’s Intelligence and Security Committee of Parliament. Finally, NSICOP must prepare its reports for the Prime Minister, who may direct the committee to redact them for Parliament if he believes that certain disclosures would be injurious to national security, defence or international relations.
These limits were intended as a compromise. Parliamentarians would have the means to review the classified work of Canada’s security community but would need to earn the trust of the public and the agencies they oversee. Once NSICOP had proven itself, the government suggested its powers would be expanded, as had been the case with the ISC in Britain.
To date, NSICOP has done important work. It has released detailed reports, providing the public with vast amounts of information on previously unscrutinized elements of the intelligence community. Recently, however, Conservatives have accused the Liberals of using NSICOP as a tool to obfuscate attempts to hold the government accountable, while the government’s actions have lent credibility to this critique. Consequently, Conservative MPs have twice refused to sit on the committee. Rather than build trust in NSICOP, the growing use of national security as a tool of partisan warfare by both parties is undermining it.
What is the way forward? In the coming weeks, all parties need to come to the table and agree to a process for Parliament to review classified documents. The current Conservative proposal that the House law clerk determine what should be disclosed is unrealistic. These decisions demand meticulous review of every piece of information to determine if its release would reveal the interests, sources or methods of Canada’s security agencies to sophisticated adversaries, either on its own or in conjunction with information already in the public domain. The clerk is in no way capable of making this assessment.
In the longer term, the NSICOP Act stipulates that Parliament must review the legislation five years after coming into force, meaning in 2022. In the past, this kind of review has rarely been respected in a timely or meaningful way. This needs to change. If the government is committed to the success of this project, it should take this review seriously and engage meaningfully with opposition concerns. If not, we should expect opposition parties to continue to rebuff NSICOP’s work until it is rendered meaningless.
This would be unfortunate. Having multiple committees demanding classified material in ad hoc ways is burdensome for an intelligence community already facing increased threats. An established national security review committee with standardized procedures, on the other hand, reduces unnecessary stress on the community and facilitates transparency and scrutiny of its activities.
All parties should be committed to enhanced parliamentary review of intelligence and national security. Compromise may be harder in an era of minority governments, but Canada will be worse off should MPs fail to find one.
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