National Security Accountability and the Right to Know

Michael Larsen. Published on April 2, 2010

In Canada, the responsibility for national security accountability is vested in a number of different institutions, each with its own mandate, resources, and powers. Generally speaking, these bodies are tasked with providing review, oversight, and/or a public complaints function in relation to a single agency.

Some agencies involved in security practices – for example, the Canada Border Services Agency – have no review or oversight mechanism whatsoever, while others, like the Canadian Security Intelligence Service, have established review bodies with recognized track records. The RCMP’s accountability apparatus has been the focus of sustained and well-deserved criticism, and it remains to be seen whether the $8 million over two years allocated to its reform in the 2010 budget will address the serious deficiencies it faces. Considered as a whole, the Canadian national security accountability architecture appears uneven, insufficiently-integrated, and full of gaps.

The issue of accountability reform comes up often when security practices are debated at meetings and conferences, and there are a number of reports with recommendations in circulation, including Commissioner O’Connor’s report A New Review Mechanism for the RCMP’s National Security Activities and the detailed 2009 Accountability in and for National Security policy paper prepared by Reg Whitaker and Stuart Farson. [1] These reports discuss changes that can be made to enhance the existing institution-specific review bodies, reforms to bring some form of accountability to agencies that are currently without review or oversight bodies of their own, and ideas for establishing ‘statutory gateways’ or integrated frameworks that will allow for coordinated multi-agency reviews. They also reflect on the central role that Parliament plays – or should play – in the provision of national security accountability.

These are unquestionably important areas for reform, and there is clearly a need to update and integrate the mechanics of the national security accountability architecture. The recent history of security-related scandals – involving the sharing of questionable intelligence, the involvement of officials in the torture of Canadians detained abroad, the misrepresentation of intelligence in security certificate proceedings, the unlawful transfer of detainees facing probable torture, and the repeated use of ‘national security confidentiality’ claims in an effort to shield the government from embarrassment – underscores the urgency of this task.

However, I would argue that a truly comprehensive agenda for reform must move beyond the level of formal review and oversight bodies and recognize the vital accountability role played by those institutions that protect and facilitate the public’s right to know.

At the federal level, this quasi-constitutional right is enshrined in the Access to Information Act, the purpose of which, according to the Supreme Court, is to “facilitate democracy” by helping to ensure both: “that citizens have the information required to participate meaningfully in the democratic process” and “that politicians and bureaucrats remain accountable to the citizenry”.[2] The Act itself recognizes that, save for limited and specific exceptions, “information in records under the control of a government institution … should be available to the public”.

Information obtained under the Access to Information Act features prominently in investigative reporting and research on national security issues. While they are certainly no replacement for effective review and oversight bodies, Access to Information (ATI) requests, when they are effective, can produce the kinds of records – emails, memoranda, internal reports, budget estimates, and raw electronic data – that shed light on the inner workings of the national security field. In some cases, documents obtained through ATI requests play a key role in informing and jump-starting public debate about a given area of security policy or case of individual or systemic misconduct. This process can facilitate a different kind of accountability – less organized, but more direct – than that achieved by post-hoc reviews, formal investigations, and reports to Parliament. It also allows us to scrutinize the activities of and between departments and agencies that may fall outside the purview of one of the bodies that make up the formal national security accountability archipelago. Information from ATI requests featured prominently in the lead-up to the Arar Inquiry, in the more recent campaign to repatriate Abousfian Abdelrazik and uncover the role played by Canadian officials in his detention and blacklisting, and of course in the genesis of the still-unfolding Afghan detainee scandal.

Unfortunately, despite the important revelations that have emerged from ATI research on national security issues, it is clear that the public’s right to know is routinely being outmaneuvered by the power to protect and entrench secrecy, even if that entrenchment violates the Access to Information Act. The Act itself is outdated, having changed little since its introduction in 1983. It lacks a meaningful compliance enforcement mechanism, has not been modernized in response to the massive changes in information management and governance that have taken place since its inception, and has large and well-recognized loopholes that facilitate the sheltering of information from scrutiny through various redaction and exemption clauses, some of which are directly related to the protection – and overprotection – of national security confidentiality.[3]

The federal ATI system is also undermined by instances of political interference. In some cases, the implications of unwanted scrutiny are deemed to be so worrisome that instructions are given to government personnel to avoid producing paper trails in the first place – as diplomat Richard Colvin testified took place when he was attempting to alert DND and DFAIT officials of the likelihood that transferred Afghan prisoners were being tortured.

These problems are tied to an overarching government culture of secrecy that views transparency as a threat to its power, contributing to what Michael Welch refers to as a ‘state of impunity’, in which the agents that hold chief responsibility for wrongdoing cannot effectively be called to account for their actions.[4] The culture of secrecy is a ‘whole of government’ problem, but it is particularly acute in those institutions that have national security as a core component of their mandate. There, the reflexive, self-protecting opacity of any bureaucracy is coupled with the doctrinal shroud of secrecy that accompanies security and intelligence activities.

Above and beyond these barriers to access, the federal ATI system is simply bogged down by systemic delays and backlogs, meaning that requests are routinely met with farcical extension notices. In cases where information is sought for the purposes of ensuring accountability or informing participatory democracy, access delayed is access denied. As a frequent user of the Act, I have found systemic delays to be both the single most significant barrier to ATI research on issues related to national security and a problem that emerges naturally from the disconnect between the scope of access law and the structure of the contemporary national security field.

By way of illustration, consider the following example:

In the wake of the December 14 2009 decision by the Federal Court to strike down the security certificate against Hassan Almrei, then-Public Safety Minister Van Loan stated that a sweeping review of the certificate program was underway. [5] This was the latest in a series of Federal and Supreme Court decisions that have left the certificate regime discredited, in a state of constant flux, and teetering on the edge of collapse.

The status quo is untenable, and it would come as a surprise if the sweeping review mentioned by the Minister did not include recommendations for an equally-sweeping overhaul of the mechanism. Given that the government is steadfastly maintaining its position with the three remaining cases – including the case of Mohamed Harkat, which is currently before the Federal Court – it would be interesting to know whether this front-stage stubbornness is hiding a back-stage discussion that has already conceded the inevitable demise of the current framework and is thinking several steps ahead.

Indeed, one could argue that such information is essential to the conduct of a timely and informed public dialogue about this controversial area of national security policy.

Following the Minister’s remarks, I filed an Access to Information request with Public Safety Canada for records related to the review of the security certificate mechanism. After the usual back-and-forth with the analyst tasked with handling my file, the final request read: “All documents and records prepared by Public Safety Canada related to the evaluation of the Security Certificate Initiative (final versions or last drafts if final versions of documents are not available). Date range: May 2009 – January 4, 2010”.

In early February 2010, I received a letter stating that, “Pursuant to paragraphs 9(1)(a) and (b) of the Act, an extension of 510 days beyond the statutory time limit is required to process this request as meeting the original time limit would unreasonably interfere with the operations of the department due to the large number of records involved in the processing of your request. The extension is also required in order to conduct consultations outside the Department. The revised date for responding to your request is June 28, 2011.”

So much, then, for facilitating a timely and informed public dialog.

A formal complaint to the Office of the Information Commissioner about this unreasonable delay would initiate a lengthy process of investigation and arbitration. Alternatively, I can abandon the request and re-file a narrower, less ambitious one. Either way, by the time the process runs its course, the hearing in Mohamed Harkat’s case will have concluded, and the debate about certificates will have moved on. Meanwhile, the results of the review will be released when and how the executive branch of government sees fit, and then only in the context of a carefully managed public relations package.

The integrated nature of contemporary Canadian security practices make them resistant to effective public scrutiny using the Act, and susceptible to the heavy-handed use of the s. 9.(1)(b) extension provision for the purpose of consultations with other government departments or external entities. The Act functions best when the records being sought are produced by and under the control of a single respondent. Where multiple entities are involved in a given activity, the responding agency can consult with each of them with regards to the vetting of records, adding to the total request processing time.

As a matter of course, contemporary security agencies engage in formal and informal collaborations, information-sharing, joint investigations, intra- and inter-governmental working groups, and one-off service arrangements governed by memoranda of understanding. This means that those who attempt to investigate a collaborative policy or practice will inevitably encounter lengthy consultation-related delays – 510 days (17 times the statutory time limit) to use the example above. Security certificates are a perfect illustration of this, as they are operated by a host of departments and agencies – CSIS, the CBSA, CIC, CSC, the RCMP, Public Safety Canada, the Department of Justice, etc. – engaged in enforcement, monitoring, and legal activities.[6] Actually figuring out how this network of agencies fits together is a complicated task that involves piecing together disconnected bits of information, making it difficult to get an up-to-date sense of the big picture – Hence the importance of gaining timely access to top-down evaluations and reviews through ATI research.

In many ways, both the Access to Information system and the archipelago of formal national security review and oversight bodies face the same problem: they seek to use an outdated and overly-rigid legal and institutional framework to impose a measure of accountability on an evolving and networked governmental field. Moving forward, it seems unlikely that the federal policy agenda for the near future will take seriously Commissioner O’Connor’s argument that “it is important to have available a mechanism that can accomplish review of multiple agencies when the activity being reviewed involves multiple agencies”. [7] Even if the next two years bring us an effective new RCMP review body, it will emerge into an unintegrated and patchwork accountability field that is shaped by Ottawa’s culture of secrecy.

Bearing this in mind, and taking into account the lessons learned from the last decade of scandals, it seems reasonable to adopt the position that formal review and oversight bodies are a necessary – but not sufficient – part of the broader national security accountability equation. Work towards meaningful reform in this area needs to incorporate the modernization of the Access to Information Act as a central agenda item, and to look for allies in the right to know and open government movements. Perhaps allies could also be sought on Parliament Hill, where MPs from the opposition majority have recently found their own efforts to get to the bottom of the Afghan detainee transfer debacle stymied by delays, obfuscation and the release of stacks of blacked-out records.

Sometimes the publication of a handful of partially-redacted documents can act as a more effective catalyst for immediate action than the submission of a detailed report. This remains the case despite all of the well-recognized barriers to access that are currently in place. Arguably, implementing a number of targeted access to information reforms – such as introducing a compliance enforcement mechanism and setting enforceable upper limits on delays and time extensions – would do more to qualitatively enhance national security accountability in Canada than a handful of earnest adjustments to specialized review and oversight bodies.

Mike Larsen is a PhD Candidate in Sociology at York University, and a Researcher at the York Centre for International and Security Studies. He has a Masters Degree in Criminology from the University of Ottawa. Since 2008, he has served as the Co-managing Editor of the Journal of Prisoners on Prisons: a prisoner-written, academically oriented non-profit journal that brings the knowledge produced by prison writers together with academic arguments for the purpose of enlightening public discourse about carceral institutions.

References:
[1] See A New Review Mechanism for the RCMP’s National Security Activities and Accountability in and for National Security.

[2] Dagg v. Canada (Minister of Finance), [1997] 2.S.C.R. 403.

[3] For additional material on the systemic issues facing the federal Access to Information regime, see the Annual Reports of the Office of the Information Commissioner of Canada, the comparative study “Fallen Behind: Canada’s Access to Information Act in the World Context”, by Stanley L. Tromp, and Alasdair Roberts’ 2006 book Blacked Out: Government Secrecy in the Information Age.

[4] Michael Welch, Crimes of Power and States of Impunity: The U.S. Response to Terror (New Brunswick: Rutegers University Press, 2009) .

[5] There are actually two reviews underway at present. The first is an evaluation of the ‘Certificate Initiative’, the name given to the 2008 allocation of funds “to support the implementation of the new provisions in the Immigration and Refugee Protection Act pertaining to the protection/disclosure of classified information in immigration processes”. The second is a more comprehensive policy analysis and development process that is evaluating the security certificate mechanism in general, and is taking place through the collaboration of an “Interdepartmental Working Group on Alternatives to Removal”.

[6] For more on this complex set of relationships, and on the problems it poses, see Larsen and Piché, “Exceptional State, Pragmatic Bureaucracy and Indefinite Detention”, Canadian Journal of Law and Society 24(2) (2009), 203.

[7] See A New Review Mechanism …, note 1 (at p. 479).