Speech at the Parliamentary Centre AGM luncheon by Senator Hugh D. Segal, CM

November 15, 2011

Thank you very much for inviting me here today and for allowing me to share my thoughts with you regarding legislative oversight for our vital national security services.

Where I think we need to be on this issue, is both realistic and engaged.  The terrorist threats we faced in the years after World War II, in the Middle East, in the Republic of Ireland, in Spain, in South America and elsewhere are not the same threats we face today.  But change does not necessarily equal relief.  Change in the nature of the networked terrorist threat, change that is turbo-charged by internet-based communications and digital coding, actually increases the diffuse nature of the terrorist risk that we face.  Terrorists who are prepared to die, in some cases eager to do so, just to make a point, is also a quantum change from the hijackers with whom one could bargain in a reasonable rational way.

Today’s fight against terrorism requires striking a delicate balance. On the one hand, terrorism represents a unique and potentially devastating threat to national security, and the public must be protected through vigilant intelligence gathering and proactive law enforcement. On the other hand, Canada has a strong history of commitment to human rights and the rule of law, as evidenced by the Canadian Bill of Rights, the common law and the Civil Code, and the Canadian constitution, including the Canadian Charter of Rights and Freedoms, and the ratification of various international human rights agreements. The challenge  is to determine how best to strike such a balance in this country and set out guidelines to help in achieving the end goal of keeping Canadians both safe and free.

In May, 2010, the Special Senate Committee on Anti-Terrorism was created and I was honoured to be elected its Chair for a second time.  Between 13 May 2010 and February 14, 2011, the Committee held 11 hearings and heard from a range of witnesses, including scholars and members of the law enforcement and intelligence communities, from countries that included Canada, the United States, the United Kingdom, and Australia. The Report produced by the committee focuses on broad themes that emerged from these meetings: the changing threat environment, the challenges associated with terrorism investigations and prosecutions, and the Parliamentary oversight of Canada’s national security.

What has become patently obvious these past few years is that we can no longer view the terrorist threat as coming from “over there”, somewhere far away with an ocean between and protecting us.  Today’s threats are more complex – the mix between home-grown and foreign terrorist threats is more tightly related.  And because this mix is both real and compelling, we need to reflect on the so-called home-grown terrorist and what it means for anti-terrorism challenges in our Canadian open and free society.

Robust foreign intelligence is integral to the global fight against terror.  So, moving as quickly as possible to build robust foreign intelligence capacity for CSIS is important and, as was the case with JTF2, building with Canadians and experienced allied nationals may produce the most proximate and coherent progress.

Canada is the only G8 country that lacks legislative oversight of its security services. Our committee’s endorsement of a formal legislative oversight model for national security operations was not and is not to compete with the Security and Intelligence Review Committee, which is made up of Privy Councillors (often former parliamentarians) nominated by all parties in the House of Commons.  They do good work in assessing complaints and operational issues on a retroactive basis as they come up.  But their work looks back.  And SIRC is not made up of existing elected parliamentarians.  And therefore, I’m afraid I would oppose SIRC’s request for more authority as outlined in its latest report.  The current set-up of investigating complaints retroactively promotes a negative “gotcha” analysis of backward finger pointing despite SIRC’s expert, careful and very fair approach.

One of the key recommendations coming out of the Anti-Terrorism Committee’s hearings, adopted and accepted unanimously by members of both parties on the committee and outlined in its report states:

“That, consistent with the practices in the United Kingdom, Australia, France, the Netherlands, and the United States, the federal government constitute, through legislation, a committee composed of members from both chambers of Parliament, to execute Parliamentary oversight over the expenditures, administration and policy of federal departments and agencies in relation to national security, in order to ensure that they are effectively serving national security interests, are respecting the Canadian Charter of Rights and Freedoms, and are fiscally responsible and properly organized and managed.  The proposed committee of Parliamentarians shall have the same right to access information as the Security Intelligence Review Committee. Members of the Committee shall be appointed by the Governor in Council, and will hold office during periods of prorogation. Meetings of the Committee shall be held in camera whenever the Chair, a majority of members present or the Minister considers it necessary for the Committee to do so. Members of the committee shall be required to swear an oath of secrecy similar to that found in the schedule to the Canadian Security Intelligence Service Act or to the Oath of a Privy Councillor, or both, and be permanently and statutorily bound to secrecy for purposes of application of the Security of Information Act. The committee shall report to the Prime Minister, who would make that report public within 60 days of receipt. When matters in the report need to be removed for national security reasons, the report, when made public, must indicate that this has transpired.

This recommendation reflects our endorsement of the British model of the Parliamentary Security and Intelligence Committee currently chaired by Sir Malcolm Rifkind, MP, a former Foreign Secretary and Defence Secretary, which is made up of members of all the parties in the House of Commons and the House of Lords.  They do not receive a formal security clearance in the sense that we would understand it.  They are appointed directly by the Prime Minister of Great Britain in consultation with the opposition leaders and based on the usual expert sources of advice.

Our committee held an informal meeting with Sir Malcolm’s committee here in Canada.  All our committee members had lunch with them at the British High Commission and we had a very frank, parliamentarian-to-parliamentarian discussion about how they operated.  That oversight group looks at plans, budgets, operations, priorities and senior personnel for every single one of the British security agencies, and it has been in operation since 1994 — 17 years — and there has never been one single breach of national security in that period of time.

Many of the agencies and heads who appear before the British committee have said that they found the process extremely helpful because when, on occasion, the media or, heaven forbid, a member of the opposition, makes an allegation about what may or may not have transpired within the security services, the members of that parliamentary committee are in a position to say, when justified: “The allegation is both unfair and untrue. There was a full and broad multi-partisan discussion by parliamentarians of those issues in our committee. We understand precisely what the security agencies were trying to do and why the decision was a rational reflection of the public interest as it might be best understood at that time.”

Legislative accountability is important, not because parliamentarians should have any interest in immersing themselves in the operational day-to-day decisions of security forces.  Those forces have to make operational decisions based on the law, on the chain of command, and on the judgment and discretion the law gives them in the defence of all of our national security.  There is the notion advanced by some that there be no parliamentary review at all, no frank discussion of priorities, plans, direction, budgets and efficiency, and strategic challenges.   But as has too often happened, officials will say that this piece of legislation or that piece of legislation is Charter-proof, and we later find out through due process in the courts that it is not Charter-proof after all. The notion, as is the case before all of our committees in both houses now, that a head of CSIS or RCMP anti-terrorism is prevented by the Secrets Act, prevented by the law, from making full disclosure to parliamentarians does not reflect on their integrity or ours.  It reflects on the absence of a statutory bridge so they can tell the truth as they often want to do but are prevented from doing by virtue of the laws that now exist.

We must never lose sight of the balance that makes our society open, creative, free and dynamic.  It is what, at some level, the terrorists and those who sponsor them hate the most.  And it is why the fight against those dark forces, home-grown, radicalised, or foreign-inspired or directed, continues to matter to us all.  But for Canada and all of the civilized world we must not forget that delicate balance of keeping Canadians both safe and free.  To quote Sir Winston Churchill, we do not want “Victory to be bought so dear as to be almost indistinguishable from defeat.”

That same Prime Minister Churchill briefed an entire Parliament, in a special off-the-record, in-camera session on the conduct of a war at which the very survival of the United Kingdom and civilization itself was at stake.  Surely we can manage measured parliamentary accountability in our day and times.

Milles fois merci.

 

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