National Affairs Specialist
Greg Weston is an investigative reporter and a regular political commentator on CBC Radio and Television. Based in Ottawa, he has afflicted governments of all stripes for over three decades. His investigative work has won awards including the coveted Michener Award for Meritorious Public Service in Journalism. He is also the author of two best-selling books, Reign of Error and The Stopwatch Gang.
The revelation that a little-known Canadian intelligence operation has been electronically spying on trading partners and other nations around the world, at the request of the U.S. National Security Agency, has critics wondering who’s keeping an eye on our spies.
The answer is a watchdog, mostly muzzled and defanged, whose reports to Parliament are first censored by the intelligence agency he is watching, then cleared by the minister politically responsible for any problems in the first place.
By the time the reports reach the public, they are rarely newsworthy.
The Harper government recently appointed a new oversight commissioner for Canada’s electronic spy agency, the Communications Security Establishment Canada. But he will be only part-time until next April.
Even then, Senator Hugh Segal, the chief of staff to former Conservative prime minister Brian Mulroney and someone with a long involvement in security intelligence issues, says any notion of effective public oversight of Canada’s electronic spying agency is “more like a prayer” than fact.
The debate over who’s keeping tabs on our spies has heightened in recent days following a CBC News report detailing a top secret document retrieved by American whistleblower Edward Snowden.
The document shows that the agency known as CSEC set up covert spying posts around the world at the request of the giant NSA.
Both agencies gather intelligence by intercepting mostly foreign phone calls and hacking into computer systems around the world.
U.S. President Barack Obama has ordered a widespread investigation of the NSA after leaked Snowden documents revealed the agency was gathering massive amounts of information on millions of American citizens.
In this country, the Harper government simply keeps pointing to CSEC’s oversight commissioner as proof that Canadians have nothing to worry about.
As Defence Minister Rob Nicholson told the Commons this week: “There is a commissioner that looks into CSEC [and] every year for 16 years has confirmed that they’ve acted within lawful activities.”
Well, not exactly.
‘Contrary to law’
Only months ago, the recently retired CSEC commissioner, Justice Robert Decary, stated in his final report that he had uncovered records suggesting some of CSEC’s spying activities “may have been directed at Canadians, contrary to law.”
The retired justice said the CSEC records were so unclear or incomplete that he was unable to determine whether the agency had been operating legally.
Decary’s predecessor, Justice Charles Gonthier, filed the same complaint about incomplete or missing records in his day, which forced him to report in a similar fashion that he could not determine if CSEC had been breaking the law.
Gonthier also alluded to a CSEC operation in 2006 that he suggested may have been illegal.
The head of CSEC at the time, John Adams, recently told CBC News that, as a result of that discovery, “I shut the place down for a while.”
However, intelligence experts have told CBC News that the oversight problems at CSEC are much deeper than poor record-keeping.
They say successive commissioners have simply lacked both the resources and the legal mandate to conduct meaningful oversight.
The current commissioner, Judge Jean-Pierre Plouffe, operates with a staff of 11, about half of whom actually work on investigations, largely to ensure CSEC isn’t abusing its powers by spying on Canadians.
But CSEC employs over 2,000 people who covertly collect masses of information recently described as more data per day than all the country’s banking transactions combined.
As Segal says, the result is obvious: “When there are thousands of people at CSEC processing millions of messages every day of all kinds, the notion that a group of 11 might be able to provide proper oversight is more like a prayer than any kind of constructive statement of fact.”
Not exactly as written
Of course, even if a commissioner did discover something seriously amiss at the electronic eavesdropping agency, there is a chance Canadians would never know.
Here’s how the system works:
Suppose the commissioner’s oversight sleuths discover that CSEC is illegally intercepting phone calls and hacking into the computers of certain Canadians.
The oversight commissioner is required to report his discovery in a top secret report to the defence minister.
That happens to be the same minister responsible for CSEC, and from whom the agency gets its government direction.
It is also the minister who would be at the centre of any CSEC scandal if news of this breach leaked out.
If the minister refuses to expose his own agency’s wrongdoing, the oversight commissioner can try to use his annual report to Parliament to do that.
But a funny thing happens on the way to Parliament.
First, CSEC gets to censor the entire report. Then it goes back to the same defence minister.
The minister is required to present the sanitized version of the report to Parliament, but has no obligation to mention it is not exactly as originally written.
Former CSEC chief Adams admits the agency is “very, very biased towards the less the public knows the better.”
He points out that in the spying business, opening an agency’s operations to full public scrutiny “would be kind of like unilateral disarmament, because if Canadians know everything CSEC can and can’t do, then everyone else will too.”
But as the leaked Snowden documents continue to force back the curtains at CSEC, Adams says it is time to find a better way to reassure Canadians about what they are doing.
“I think a knowledgeable Canadian is going to be much easier to deal with,” he says.
If the public reaction to the Snowden revelations is any indication, Canadians are all ears.