SIRC's mixed record in watching Canada's spies — remember Air India?
CSIS oversight by the Security Intelligence Review Commitee has included disturbing gaps in vigilance
Oversight, oversight. Now that we've seen the sweeping new powers in the government's anti-terrorism bill, everybody wants oversight.
But we already have it, says the government. Don't worry, the prime minister tells the House of Commons, SIRC is there and SIRC will do the job just fine. It "provides robust oversight," he says.
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Of course, if you asked a hundred Canadians what "SIRC" means, you might not find many who know it's the Security Intelligence Review Committee, in charge of keeping tabs on CSIS, the Canadian Security Intelligence Service.
And, if you asked those knowledgeable Canadians to name a member of SIRC, chances are the only name they'd come up with is that of Dr. Arthur Porter — but only because SIRC's former chairman now stews in a Panamanian jail on charges of fraud.
In truth, it's not fair to the distinguished Canadians who serve and have served on SIRC that Porter should have become shorthand for SIRC's lack of credibility. That problem really arises less from Porter's sordid story than from the fact that Canada's allies all make their spy agencies accountable to powerful parliamentary or congressional committees — not to small, understaffed appointed bodies whose expertise has often been in doubt.
SIRC itself does not entirely agree with the government about its suitability to just carry on doing what it's been doing. Instead, its latest annual report seems to beg the government to update the process, somehow, perhaps with a parliamentary committee.
"It seems reasonable," the SIRC report says, "for Canadians to ask whether the intelligence accountability framework that was designed 30 years ago is still appropriate to deal with the realities of contemporary intelligence work."
Despite this, the government insists that SIRC is all we need. So it's not too soon to take a look at its record. How does it perform when the chips are down?
No elephant here
It happens that we have seen exactly how SIRC performed in what was, until Sept. 11, the deadliest terrorist attack in history: the Air India bombing of 1985.
The bombing was planned and the bombs were placed, in Canada, by Canadian citizens. In its wake, stunning information emerged about the detailed knowledge CSIS had of the plot.
CSIS agents knew exactly who was involved and tailed them to a test bombing, three weeks before the real thing. CSIS had even wiretapped the leader of the plot for months beforehand — precisely because it knew he was a threat.
His name was Talwinder Singh Parmar, and, when the plane blew up, the CSIS agent watching him exclaimed instantly: "Parmar did it!"
Years later, a former head of CSIS, Reid Morden, summed it up bluntly. CSIS, he told the CBC, "dropped the ball." And, years after that, retired Supreme Court justice John Major's judicial inquiry concluded that Morden was correct. In fact, the failure of an array of government agencies to read the writing on the wall, Major said, was "inexcusable."
That was news to SIRC, though, which had taken a look at the evidence when it was much fresher — in 1992 — and decided it was all perfectly excusable — nothing to see here, move along.
That's astonishing, in retrospect, but even more so when you take a closer look at what SIRC knew.
It found that, yes, there was an abundance of known threats to Air India, rising to a crescendo in the days before the bombing.
SIRC also knew that hundreds of wiretaps had been inexplicably erased — and that the erasures continued even after the bombing, when CSIS knew that the man on the tapes was the prime suspect.
SIRC's report is heavily redacted, but its headlines alone convey the drumbeat of warnings: "More Threats to Air India." Then, "Air India Again Threatened." Then, "Something Big to Happen!"
But SIRC saw and reported all this and concluded that there was … no problem. Why? Because there was "no specific threat."
That became a familiar line, repeated by both Liberal and Conservative governments in the years that followed to excuse what Major later found inexcusable. "There was nothing specific." "We couldn't have known." "There was no threat naming Air India Flight 182." The threat was always just to an Air India plane in Canada.
Here's the problem that makes that whole refrain a farce: Air India had no other plane to bomb. It had only one weekly flight from Canada. It was Flight 182. Each week as the threats intensified, everyone knew which plane to watch.
Looking back, SIRC's report seems like an object lesson in how not to conduct a serious investigation. SIRC managed to find the trunk, the tusks, the tail and the massive body — but still missed the elephant in the room.
In more recent years, SIRC has clearly become less gullible and more willing to criticize the spies it oversees.
Even so, a stunning passage in its most recent annual report can only serve to vindicate concern about the powers CSIS will soon have to brand suspects as dangerous and to intervene in their lives.
The committee tore a strip off CSIS for outright deception over a complaint by a federal employee who lost his security clearance on fraudulent grounds. SIRC accused CSIS of "intolerable misrepresentation ... SIRC had been seriously misled by CSIS ... SIRC found CSIS's lack of candour most disturbing."
Candour, or the lack of it, also lay at the heart of a stinging court ruling in November 2013 by Justice Richard Mosley of the Federal Court. In that case, CSIS was found to have misled the court about a wiretap it pretended would take place in Canada, when it was actually going to be done overseas by a foreign government.
Mosley ruled that "the failure to disclose that information was the result of a deliberate decision to keep the court in the dark.… This was a breach of the duty of candour owed by the service and their legal advisers to the court."
(On Thursday, the Supreme Court agreed to hear the federal government's appeal of Mosley's ruling, although the government has tabled legislation that among other things clarifies the rules for CSIS.)
The ruling sent ripples far and wide, and the government moved to change the law. Now, it insists the courts will be a second line of defence to ensure CSIS plays by the rules. But the Mosley ruling suggests the agency was quite prepared — on the advice of the Department of Justice, mind — to try an end run around the courts.
It seems, then, that the growing concern about oversight is not just a nice way for the opposition to raise a fuss without actually opposing the government's crackdown on terror. And don't expect the inspector general of CSIS to help out here — that position was abolished by the government two years ago on the grounds that it duplicated the work of SIRC. Today, the government says that a parliamentary review committee would also duplicate the work of SIRC.
So, unless the government has a change of heart, SIRC will be on its own. Chaired by the redoubtable Deborah Grey, a motorcycle-riding former Reform and Conservative MP, it will have a much broader range of CSIS powers to consider.
But will it be the sleepy SIRC that gave CSIS a free pass on Air India? Or the one that raked CSIS over the coals for lying?
We may find out — or we may not. SIRC reports tend to have a lot of blank spaces where the secrets used to be.