Keynote Speech International Symposium on Review and Oversight

The Honourable Paule Gauthier, Chair
Security Intelligence Review Committee

Ottawa, Ontario
May 18, 2005

Introduction

Good afternoon.

Thank you, Feridun, for your kind introduction. I want to acknowledge your efforts and those of your colleagues at Carleton University in helping organize this impressive symposium.

Your strong support and partnership illustrate why Carleton's reputation as a world-class institution continues to grow.

Ever since SIRC held its first small workshop on security review at Meech Lake back in the 1980s, we've dreamed of a symposium of this magnitude. Little did we know that it would take 20 years and the commitment of a determined group of Carleton academics to help us pull it off!

I'm delighted to see such a talented and learned group of practitioners, academics, professionals, legal experts, government policy makers and media, all gathered to discuss important review and oversight issues. Given the challenges of the post 9/11 environment, this ambitious gathering could not have come at a better time.

This symposium marks yet another milestone in our collective efforts to strengthen the review and oversight of security intelligence agencies. Its multi-national and diverse nature also illustrates how much the review and oversight community has grown and matured over the past two decades.

As someone who's worked in this area for many years, I can assure you we've come a long, long way since that summer day in 1984 when CSIS and SIRC came into being.

While the mention of 1984 no longer carries ominous overtones, it does bring to mind an interesting observation from George Orwell ... an observation which applies to us here and now in 2005.

Orwell noted that “every generation imagines itself to be more intelligent than the one before it and wiser than the one after it.”

As we enter the second generation of security intelligence review in Canada, I believe our challenge is to be both wiser and more intelligent.

Why? Because as the complexity of the security environment grows, so does our need to reassess what we do and how we do it.

Being wiser means looking back at lessons learned and knowledge gained. Being intelligent means looking forward to see where those lessons and knowledge can best be applied.

Today, I want to look backward and forward: to bridge the gap between past and future generations of security review, between where we've been and where I believe we need to go.

In doing so, I hope to bring some light on how we can move forward together to ensure our ongoing effectiveness in challenging times.

SIRC Today

Before talking about past and future, I want to make one observation about the present.

I find it quite ironic that twenty years after the creation of SIRC we appear to have come full circle. With the Anti-Terrorism Act, the RCMP is back in the national security picture to a degree not seen since the late 1970s.

We also have another commission of inquiry -- this time led by Mr. Justice O'Connor -- looking at the possibility of a new review mechanism for the RCMP's national security function. Finally, the Government has signaled its intent to table legislation, establishing a new Committee of Parliamentarians to deal with national security issues.

What does this mean for SIRC? Frankly, anything is possible ... from the current status quo to a greatly expanded mandate for the Committee. Here, my advice for decision-makers is to think long and hard before re-inventing the wheel, when most of our current system has worked well for two decades.

In a public submission to Mr. Justice O'Connor last February, SIRC noted that it has over twenty years of knowledge and experience reviewing CSIS operations. As a result, we believe that if a similar review mechanism is to be established for the RCMP's national security function, then we are equipped and prepared to assume this role.

I believe Canadians want assurances that the RCMP -- like CSIS -- is subject to a review mechanism that ensures it respects the delicate balance between individual rights and national security. With two decades of experience in this area, SIRC has the credibility and the expertise to do the job.

Looking Back on SIRC's Progress

When we began scrutinizing security intelligence activities in this country we faced a huge challenge in dealing with the newly established Canadian Security Intelligence Service. CSIS, quite frankly, resisted our review efforts at almost every turn.

In 1984, that was to be expected because the disbandment of the RCMP Security Service and the creation of CSIS were not without friction. Despite the fact that SIRC was a new body, my fellow Committee Members and I persisted and refused to take “NO” for an answer.

Our job, as we saw it, was to ensure that CSIS not only did the right things but that it did things right. In short, to hold them accountable.

The more stubborn CSIS was, the more vocal we became, highlighting problems and making recommendations. This made for quite an adversarial relationship but in the end we got results.

For example, in our 1986-87 report, SIRC concluded that the Service's Counter-Subversion Branch was intruding on the lives of too many Canadians, while focusing on targets of minimal threat to Canada. Our concerns, and a report by the Clerk of the Privy Council, led to the disbandment of the Counter-Subversion Branch.

Over the past twenty years, SIRC's comments and recommendations have extended to the core of CSIS activities including matters of source handling, investigative methods, targeting decisions and other key functions.

We have also worked tirelessly to protect and safeguard the civil rights of scores of Canadian citizens and landed immigrants who have brought complaints against the Service over the years.

Although I can't discuss the classified details of our reviews, I will say that in the vast majority of cases, SIRC found that CSIS had acted lawfully and within its mandate.

Now that doesn't mean we have not found problems. From Air India to the Heritage Front Affair, SIRC has made findings and recommendations designed to correct deficiencies and improve the Service's performance. I believe that CSIS has become a better organization as a result of this constant scrutiny.

The bottom line is that our interventions over twenty years have made CSIS a more mature, more disciplined and more professional organization. We're watching them closely, reviewing their activities from A to Z.

CSIS knows this and they're acting accordingly. Their investigations are now largely carried out in a way that respects the individual rights of Canadians. As a result, we've found far fewer problems in recent years.

While we are mandated to point out what is wrong with security intelligence, the fact is we are also mandated to point out what is right.

The evolution of CSIS and SIRC over the past two decades has been very gratifying. As I prepare to step down after two terms as SIRC Chair, I'm pleased to say that CSIS has definitely improved the way it does business.

Today, SIRC's relationship with CSIS can, at times, be adversarial but it is by no means acrimonious. I prefer to call it a “healthy tension” between the two organizations.

In short, we have established a professional working relationship within a review structure that works well for Canadians.

Building On Our Success

While Canada's review mechanisms have been largely successful in the past, we have to ask ourselves if they will continue to serve us well in the future.

Global threats such as international terrorism and jihadist extremism in particular, are reshaping the security intelligence landscape. In recent years Canada has taken exceptional measures to defend against those who would undermine our citizens' right to live in a safe and secure society. The most significant measure is the introduction of the Anti-Terrorism and Public Safety Acts.

In examining past and present legislative environments, it's important to note that the last time Parliament passed security legislation we were living in the Charter era: a time when the rights-based approach to the relationship between individuals and society was at its zenith.

Today, many would say we've moved to a security-based approach.

Let me be clear: individual rights and national security are not mutually exclusive concepts. Having one doesn't mean that you can't have the other, no matter what some politicians and officials may say.

We need only refer to the Charter of Rights and Freedoms for guidance. The Charter defines fundamental rights as life, liberty and security of person.

Now, we can argue forever about the definitions of liberty and security but for me the Charter's message is clear: the commitment to freedom and the commitment to security go hand-in-hand in a free and democratic society.

This is why, as a proud Canadian, I see the Charter as one of our society's greatest accomplishments.

The Charter's dual commitment to freedom and security lies at the heart of everything we do in intelligence review and oversight. It is a commitment that must remain constant. Having said this, we must accept that maintaining the balance between collective security and individual rights is not a zero-sum proposition and never will be.

There are no clear winners or losers in this balancing game. What's important -- if you'll allow me the cliché -- is how we play the game, especially now when the stakes are higher than ever.

We have to keep playing smarter by continuing to be flexible in response to change as well as vigilant and proactive in our relationship with the security intelligence community. Put simply, we have to be at the top of our game at all times.

In today's complex security environment we know that the review and oversight role is more important than ever. It is a role that calls for consistent leadership on our part.

But what does leadership mean?

For one thing, it means focusing less on compliance and more on the accuracy of the intelligence being collected and the quality of the analysis it undergoes.

Sound analysis goes hand-in-hand with informed judgment, our two best allies in preventing intelligence errors and ensuring the best possible advice and recommendations to Government.

If there's one thing we've learned from twenty years of review in Canada, it's that neither intelligence agencies nor review bodies have a monopoly on truth. That's because truth never reveals itself in black and white at one end of the spectrum, it's usually found somewhere in the murky grayness of the middle ground.

As we've seen with faulty and misleading intelligence about weapons of mass destruction in Iraq, intelligence errors can lead to war ... with all the human suffering it entails. Iraqi civilians paid and are still paying a heavy price for those errors.

Such errors have also led to much soul-searching among our allies and in the case of the United States, one of the most far-reaching and dramatic re-organizations of its security intelligence apparatus in decades.

Hopefully, the United States has recognized that intelligence players must achieve greater efficiencies with their resources so that they improve both the quality and reliability of their products and become more adept at collecting the right information and sharing it with others.

The final point I want to make about leadership has to do with the current public environment.

A recent EKOS poll shows declining public confidence that the Government will strike the right balance between public security and civil liberties. Only 39 percent of Canadians trust the Government to get it right, the lowest level in three-and-a-half years.

Generally, however, Canadians favor a “tougher” approach. Fifty-eight percent believe the Government's response to terrorism has been “appropriate,” while a further 30 percent believe the Government has not gone “far enough.”

In the dynamic tension between individual rights and collective security we know there is always a danger of the pendulum swinging too far to one side. Today, the pendulum is clearly swinging in the direction of security. As review and oversight professionals, we must not allow ourselves to be swayed by the shifting tides of public opinion. The law is the law.

Nevertheless, if given the opportunity, we can and should comment on whether legislation is unclear or may be going too far. SIRC's recent presentation to the Special Senate Committee reviewing the Anti-Terrorism Act is an example of that type of intervention.

I recognize, however, that the question of just where the security pendulum should hang is a matter of debate.

Supreme Court Justice Ian Binnie, speaking about national security certificates at a recent conference on counter-terrorism, said that it is “absolutely necessary” for courts to show deference to security intelligence agencies because they have more expertise and information than judges.

However, Judge Binnie was quick to add a caveat.

“At what point,” he asks, “does that deference stop? How much deference is too much? At what point do you say the emperor has no clothes.”

We would do well to remember this, as we strive to find the right balance while continuing to hold these agencies to account.

Now that I've given you SIRC's take on the security environment and how we can best respond to it, I want to share with you my perspective as a concerned citizen about where we need to go in the years ahead.

Specific Messages

My first message is aimed at CSIS.

We all know there's been much debate on establishing a capacity to gather security intelligence overseas. Indeed, CSIS has claimed for some time that it already has this power and has been exercising it.

As some of you may be aware, Section 12 of the CSIS Act allows the Service to collect, analyze and retain information and intelligence on activities that may, on reasonable grounds, be suspected of constituting a threat to the security of Canada.

SIRC has already concluded that the collection of Section 12 intelligence has no geographic restrictions. We've stated publicly that CSIS has a clear mandate to conduct Section 12 investigative activities outside Canada and we predict that such operations will increase as the threat of international terrorism grows.

I would go further, however, and urge CSIS to become much more active in foreign intelligence gathering. In my view, they should be engaging in covert activities abroad on a regular basis, just as MI6 does for Great Britain.

Why? Because it's high time we stopped relying on other countries to give us security related information that we should be going out and getting ourselves.

In a security environment that is increasingly international in nature we need a broader and more strategic intelligence gathering capacity. This is the only way to produce the kind of timely, sophisticated intelligence our government needs to respond to domestic and international security threats.

Let's make no mistake about it: our ongoing capacity to protect our national sovereignty and the security of our citizens, is directly linked to our ability to produce sound intelligence for government decision-makers. There are no shortcuts and no free rides in this process.

Are there risks associated with more aggressive intelligence gathering? You bet there are.

Imagine if a Canadian Intelligence Officer was detained or killed overseas in the performance of his or her duties. Think about the problems that could create in our foreign relations, or the potential international embarrassment.

However, when you look at the big picture, these risks pale in comparison to the much greater risk of placing the security of Canadians in the hands of other nations. In my view, that risk is simply unacceptable.

When it comes right down to it, Canadians must decide if we have the stomach and the money for this kind of work. All I can say is if we don't have the nerve for it now, we'd better develop it pretty quickly.

I can't emphasize strongly enough that in today's world, foreign intelligence gathering is essential to national security.

If we want to keep playing the national security game, we're going to have to play in the big leagues. It won't always be nice, it won't always be easy and it won't always be pretty, but that's the world we live in. The sooner we get used to it, the better.

My second message is to Canadian Parliamentarians. Just as it is time for CSIS to assume an expanded role, Parliament too must take on added responsibilities.

As most of you know, SIRC is an independent, external review body which reports to Parliament on the activities of CSIS. But it has been more than two years (February 18, 2003) since the Committee last appeared before the Parliamentary Sub-Committee on National Security. Quite frankly, it's hard for SIRC not to feel somewhat disappointed by the lack of attention paid to its work.

Nevertheless, just last month the Government announced its intention to create a new Committee of Parliamentarians to deal with national security matters.

The mandate of this Committee would be to review Canada's security and intelligence apparatus to ensure we have the policies, resources and legislation we need to meet our national security objectives.

I believe MPs and Senators can make important contributions ... but only if they commit to a consistent, in-depth review process. If they're going to get involved, they're going to have to do more than get their feet wet. They'll have to immerse themselves right up to their eyeballs in the murky waters of national security intelligence.

As SIRC's first Chair Ron Atkey has pointed out, national security is no place for the shallow waters of political partisanship.

MPs and Senators are going to have to spend a lot of time in the deep end by paying more attention to review bodies and by working hard behind the scenes ... reading, listening and yes, participating in security-sensitive “in-camera” sessions, far from public view.

It may not be as sexy as a James Bond movie but it's the best way for Parliamentarians to make meaningful and lasting contributions to national security. This kind of work is not going to win them votes but it will earn them greater respect from Canadians.

Having said this, let's be clear about how this Committee could enhance intelligence review.

Under our current review process, SIRC examines security operations after the fact. A Parliamentary Committee, on the other hand, could take a much more proactive role by anticipating problems before they develop and taking preventive action.

There's no doubt in my mind that a Parliamentary Committee commands greater public attention and can exert more influence on Government decision-making than can SIRC. A Parliamentary Committee is also more likely to question government policy and decision-making, something that is clearly not within SIRC's mandate.

A possible model for Canada's proposed Parliamentary Committee is Britain's Intelligence and Security Committee. This Committee -- which has been around for ten years -- has proven itself a real asset in managing Britain's national security system.

What's impressive about this Committee is that it doesn't hesitate to ask whether or not the Government is making the right security decisions or whether the British intelligence agencies have properly applied them.

A good example is the 2002 terrorist attack in Bali, which resulted in the Committee publicly questioning travel advisories issued by the British Foreign and Commonwealth Office.

Despite the fact that the Committee has no responsibility for this Office, the Government accepted its recommendation and announced a sweeping review of both the policy and mechanism for issuing travel advisories.

A Parliamentary Committee with this kind of clout would be a welcome addition to the Canadian review community. Such a Committee would, in Ron Atkey's words, act as both “sounding board and safety valve” by representing the public when things go wrong and Canadians are demanding answers.

I believe such a committee would complement SIRC's role of reviewing CSIS performance and legal compliance, while contributing to greater overall accountability and transparency in national security.

My third and final message today is to the review and oversight community itself including members of SIRC, prospective members of the new Parliamentary Committee and review and oversight bodies in other countries.

In 2005 we find ourselves in the most complex and challenging security environment in decades. In this environment we must take nothing for granted and nothing at face value.

We must work harder than ever at getting both sides of the story, and we must always remain independent from the agencies we are assigned to watch.

Review and oversight bodies can perform many duties, whether it's to monitor performance or to ensure that money is well-spent.

Above all, however, they exist to ensure that security intelligence agencies act lawfully in order to protect the individual rights and liberties of citizens.

Speaking up for individual liberties won't win us any popularity contests with security intelligence organizations. If they bristle at our criticisms, we'd do well to respond with one of Orwell's more famous maxims: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”

What Canadians want to hear, is that we're holding security intelligence agencies accountable.

Yes, we hold them to a high standard and must continue to do so, particularly at a time when the pendulum is swinging in their favor. After all, the rigorous standard we uphold is the standard of a free, open and democratic society. Canadians expect nothing less of us in our work.

I sincerely hope my messages today will stimulate debate and discussion about what we do and how we do it. We need to ask ourselves how we can best work toward our common goal of achieving an effective balance between collective security and individual rights in Canada.

As I take my leave of SIRC next month, I offer thanks to my colleagues in the review community who have worked so hard to maintain the delicate balance between individual rights and public safety and security.

Your commitment and your example have been hugely instrumental in SIRC's success over the years and I am very proud to celebrate SIRC's 20^th anniversary with you today.

I wish you all a productive and rewarding symposium.