Paul Heinbecker is former ambassador to Germany and the UN, and currently with Laurier University and the Centre for International Governance Innovation; Daniel Livermore is a former ambassador to Guatemala and El Salvador and currently teaches at the Graduate School of Public and International Affairs, University of Ottawa.
Bills C-51 and C-44 are now law. They are also trouble waiting to happen, because Canada's political leadership has loosened the reins on CSIS abroad, with little oversight and less review, leaving everyone in charge – and no one. The first crisis is a matter of time.
The scope of the intelligence agencies' powers to interfere with Canadians' privacy and to distort the courts' role in our society has rightly been widely discussed and frequently criticized, with little effect on a government bent on looking tough on terrorism. Less attention has been devoted to the potentially adverse impact on the conduct of Canada's foreign policy.
The expansion of CSIS's scope of activity abroad by Bills C-44 and C-51 creates real prospects for confusion and conflict with the work of the Department of Foreign Affairs – with consequences for Canadians. Who speaks for Canada abroad? Is the ambassador still in charge of the embassy and all Canadian government operations in his/her country of accreditation, as the statutory authorities of the Foreign Affairs Act clearly state? Or do CSIS, the RCMP and other security agencies now have carte blanche overseas?
Those who think these concerns are exaggerated should think again. Not long ago, the Canadian government launched a major effort to improve relations with Brazil, the pivotal South American power. The Prime Minister visited the country in 2012, the Governor-General went there the following year, and a full-court press of ministerial visits was launched. Meanwhile, in another part of the rain forest, CSEC, Canada's electronic spy agency, not only turned its considerable, intrusive talents onto the Brazilian Ministry of Mines and Energy, it also described its operations in a document that was eventually leaked as part of the Snowden treasure trove in 2013. Result? With the CSEC document public, years of diplomatic time, effort and commitment went up in smoke. Relations with Brazil have yet to recover. Did anyone weigh the possible value of the CSEC operation against the potential cost of detonating the government's major foreign-policy initiative in the Prime Minister's priority region? Was anybody in charge?
Example two: Literally on the eve of the 2010 visit to Canada of Chinese President Hu Jintao for the G20 summit, CSIS issued a warning on national television that a couple of provincial ministers (we now know that one was Michael Chan of Ontario) were too close to the Chinese government. This statement was promptly walked back, the Chinese chose to shrug it off and the billion-dollar G20 summit Mr. Hu came for proceeded as planned. But left unexplained was a key question: Why was CSIS's warning put ahead of Canada's success as host of the G20 summit, also a top prime-ministerial priority? Were the foreign-policy costs of a suspect allegation duly weighed?
Bill C-51 makes a bad situation worse. It effectively gives CSIS sanction to undertake illegal operations abroad, turning the service into an active instrument of disruption internationally. Who decides on when the well-being of a Canadian in prison overseas can be sacrificed in pursuit of an intelligence objective? When can CSIS help put Canadians into the custody of foreign security agencies? We've seen this movie before. Bill C-51 makes such outcomes more than less likely in the future. More fundamentally, Bills C-44 and C-51 expand and twist the CSIS mission. CSIS was created as a domestic service, with a deliberately restricted reach abroad. It has little international operational experience, limited linguistic expertise and checkered cultural awareness. The government has effectively created a nascent foreign-intelligence service by inadvertence or indirection, perhaps even by misdirection, with few of the management foundations needed for success. In doing so it has also programmed a fundamental clash with the Foreign Affairs Act.
This is a problem because Canada's 170 missions overseas, about half of them embassies or high commissions, identify and advance Canadian interests. They are Canada's eyes, ears and voice in their host countries. The great bulk of information collected offshore is the legal, treaty-sanctioned "intelligence" gathered by diplomatic staff. Their reporting helps the Canadian government understand the politics, culture, economics and security calculations in their countries of accreditation. It's a particularly important role because of the shrinking number of Canadian news bureaus abroad to interpret the significance of foreign developments for Canada. Our Canadian missions also look after Canadians in trouble, and promote Canadian business. They recruit new Canadians. Is it worth making the effectiveness of our entire international operations hostage to transitory intelligence purposes? Who decides what to do when CSIS, or CSEC, or another Canadian agency, has an operational objective that conflicts with the broader mandate of the ambassador for all of Canadian operations in a given country?
Because ministers have effectively punted on this issue, de facto responsibility for making a flawed system work falls to the Canadian public service, especially senior executives of the Privy Council Office (the PM's department), Foreign Affairs, CSIS, CSEC, the RCMP, Immigration and National Defence. Limitations need to be set. Risks need to be weighed so that accountable ministers know the dangers, including the potential for political embarrassment if an operation turns turtle. The scope of any disruptions abroad needs to be defined. Last but not least, the Foreign Affairs voice on policy needs to be safeguarded and the judgment of our ambassadors needs to be respected.
All Canadian government departments contribute to foreign policy. Clarity in decision-making authority and respect for due process are crucial in enhancing policy effectiveness and in ensuring that the interests of Canadians are advanced, not sacrificed.
What must not happen now that Bill C-51 and C-44 are law is that they be interpreted as a licence for CSIS to run its own foreign policy. CSIS, and CSEC, must remain instruments of foreign policy, not arbiters of it. Otherwise real trouble lies ahead.