In the aftermath of Maher Arar’s harrowing ordeal of wrongful detention and torture, Justice Dennis O’Connor has provided an enormous service to Canadians by head- ing a commission of inquiry that has, over the course of its two phases of work, first absolved Arar of any terrorist activity or affiliation, then recommended numerous changes to the gov- ernance of this country’s national security apparatus.
In some respects, change is already well underway. The resignation of the former RCMP commissioner is a case in point. So too is heightened public sensitivity to security oper- ations and the central importance of ensuring accountability, especially in a post-9/11 world. Now, however, in looking beyond the Arar case (and other such cases now under review), the government must look forward and decide how best to respond to the sweeping recommendations put forth by O’Connor. How it does so will go a long way in determin- ing whether the livelihood of other Canadians may be wrongly compromised, as well as the capacities of Canada’s security agencies to fulfill their fundamental mission, which is the pursuit of our collective safety.
This article offers a critical examination of O’Connor’s recommended reforms as well some of the wider implications for the governance of national security. Some five years after 9/11 and with the scope of the terrorist threat widening, it is difficult to envision a more important matter that will come before Parliament in the coming months.
Due to their central role in Arar’s mistreatment (chroni- cled in the initial report) and the resulting terms of the commission of inquiry, the primary focus in O’Connor’s reform package is the RCMP. It bears noting here that the RCMP encompasses both policing and national security func- tions, the latter a direct result of the federal response to 9/11. While the RCMP had, in the past, dealt with security and intelligence matters, changes adopted more than 20 years ago were designed to yield a more exclusive focus on law enforce- ment. As such, in 1984 the Canadian Security Intelligence Service was created (and during the last federal campaign the Conservatives promised to create a new foreign intelligence agency, in order to better complement CSIS abroad).
The truth of the matter, of course, is that boundaries between crime and terrorism and between policing and nation- al security are murky at best. It took much effort during the 17 years separating CSIS’s creation and the World Trade Center attacks for federal officials to gain some comfort in navigating the respective roles of CSIS and the RCMP. Importantly, this was a time of relative calm in geo- political waters " the Cold War receding and terrorism a largely distant overseas reality for North Americans.
The hurried response to 9/11 that would define terrorist activity into law for the first time in the country’s history brought with it unavoidable pressures to mobilize and expand segments of the RCMP. CSIS would remain important, also called to expanded duties, but the more specialized intelligence gathering efforts of this relatively small agency could not have legally nor tactically served the urgent push to identify, pre- vent and prosecute terrorist activity (of the sort that came to light in Toronto in June 2006).
Yet the widening of the RCMP’s mandate and operations also underscores a quandary in all democratic governance systems " namely, how best to ensure appropriate conduct and accountability in law enforcement and security operations.
Prior to 9/11, the RCMP reported to Parliament through a minister, the solicitor general, though not without considerable operational autonomy in order to limit the risk of political meddling. Needless to say, the reverse also holds, which is why eyebrows were raised when the RCMP publicly announced an investigation of the offices of then finance minister Ralph Goodale over the income trust matter during a federal election.
The legislative and administrative changes introduced as a result of 9/11 have amplified the importance of this quandary. Ministerial responsibili- ty was expanded through the portfolio of public safety and security (now encompassing the RCMP and fusing the previously separate solicitor gener- al’s position), but the autonomy of the RCMP, even with its expanded security operations, was largely preserved. With respect to the Arar affair, the unavoidable tensions have been on display ever since " arguably even a root cause of the inquiry itself (as many claim Prime Minister Martin appointed O’Connor, having grown exasperated at RCMP stonewalling).
In this expanded anti-terrorism environment, the need for strengthened review and oversight did not go unno- ticed, leading to a proposed new parlia- mentary committee on national security. This point will be returned to below, as it was by and large ignored by O’Connor in his final report. Instead, O’Connor has taken aim at the absence of alterna- tive mechanisms for public complaints and independent review over the RCMP. His model in this regard is that of CSIS.
In light of its secretive activities, and the equally pronounced need to shield intelligence services from inappropriate political interference, CSIS operates under the guise of an independent body known as the Security Intelligence Review Committee (SIRC). The public optics are not unlike those of judicial inquiries: eminent Canadians are called upon and sworn in to observe and, as appropriate, investigate CSIS activities, reporting on the results of their actions to Canadians via Parliament.
Yet, unlike the exhaustive and wide- ly covered proceedings of a judicial inquiry (typically established in the after- math of presumed wrongdoing), SIRC’s role is meant to provide a more normalized review process that can also help steer the efforts of the agency and the government. While many domestic and international observers have praised the SIRC-CSIS model, there is little by way of direct, verifiable evidence to suggest cor- rective measures being undertaken due to the existence of SIRC since almost all of its findings are classified as secret. Clearly, however, the conventional wisdom regarding SIRC is that some review is bet- ter than none at all.
With respect to the RCMP, O’Connor seeks to apply such wisdom and, to his credit, build upon it in light of both the post-9/11 expansion of the RCMP’s stature and the real- ity that national security involves many other actors from across the federal govern- ment. On the first point, O’Connor’s proposal is for a review committee, modelled after SIRC, for the RCMP as a whole, including both its polic- ing and security functions. This new body, the Independent Complaints and National Security Review Agency (ICRA), would be more powerful than the current Commission for Public Complaints Office in that it would hold extensive investigatory powers of review.
This proposed new body largely underwrites Ronald Atkey’s characterization of O’Connor’s blueprint as a ”œbull’s eye.” Atkey served as the first chair of SIRC and in a thoughtful commentary in the Globe and Mail, he endorses the ICRA con- cept as well as expanded mandates for this body (also encompassing the Canada Border Services Agency) as well as SIRC (which would add to its domain the security functions of Citizenship and Immigration Canada, Transportation Canada, the Financial Transactions and Reports Analysis Centre of Canada and Foreign Affairs). Atkey nonetheless tempers his own praise with two pertinent observations. First, the five aforementioned units added to the review bodies are but one- fifth of the total number of agencies and departments partaking in national security work. Thus, whether this group is the right size and composition is an issue worthy of further consideration. O’Connor’s response to such horizontal complexity is a proposed overarching body, the Integrated National Security Review Coordinating Committee, a group of four comprising the chairs of the newly formed ICRA, SIRC, the com- missioner of the Communications Security Establishment, and an addi- tional outside appointee.
Secondly, O’Connor’s neglect of parliamentary review is flagged by Atkey as a ”œminor quibble” that should not distract the government from moving forward with O’Connor’s blue- print. This latter omission, however, is arguably far from minor: it is one deserving of critical attention and great care in order to refurbish the gov- ernance mechanisms underpinning national security for both contempo- rary challenges and those to come.
On the matter of parliamentary involvement, the need for a stronger basis of political review has been an increasingly recognized omission of the anti-terrorism apparatus enacted over the past five years. Indeed, while in power the Liberals endorsed plans for a new parliamentary committee on national security that would include members from all political parties, drawing from both the House of Commons and the Senate.
After much consultation and debate by an interim group established in 2004, a draft blueprint for such a com- mittee was introduced in Parliament in April 2005, only to die on the order paper later that year. In their own electoral plat- form, the Conservatives likewise promised to ”œcreate a new National Security Review Committee to ensure effective oversight and a greater degree of account- ability and transparency regarding Canada’s national security efforts.” During this past year, SIRC even set aside a modest budgetary allocation in order to liaise with the proposed new body.
It is worth underscoring here that at present, the legislative branch sits well on the margins of security and intelli- gence matters. Despite the recent public inquisition of the former RCMP com- missioner over his conduct in the Arar case, it should not be forgotten that it took a combination of media scrutiny (fuelled by the tenacity of Arar and, while he was imprisoned, his wife), judi- cial inquiry and a change in govern- ment before these House of Commons committee hearings served merely to amplify the invariable outcome of such prolonged and extraordinary measures.
The fundamental problem at hand " namely the absence of political oversight on specific matters of national security, stems from both per- ception problems and performance impacts intertwined with excessive secrecy. A central pillar of executive branch decision-making, secrecy fash- ions concentrated power and thereby contributes to the notion of a dimin- ished role for Parliament. Perception becomes reality when faith in the legislature diminishes: extraordinary measures such as public inquiries thus become compensatory in order to maintain a modicum of public trust.
In the national security realm, where some measure of secrecy is clearly warranted, the danger is that the absence of a political dialogue over precisely what the standard of secrecy should be further widens the gap between elected officials and the citizenry. Furthermore, a zone of insularity encompasses those agencies and departments with security- related responsibilities.
As we have seen in the Arar affair, such insularity breeds technocra- cy since accountability not only is nec- essary for public confidence and remedial action when things go awry, it also underpins strong and adaptive performance capacities in volatile and uncertain environments. Such a link is ensured not through reactive, after- the-fact investigation, but by ongoing involvement and engagement by all stakeholders committed, in this case, to the cause of collective security.
One key stakeholder in this regard is the public at large. Less deferential to rep- resentational authority and increasingly informed, today’s citizenry must find a role in the governance of public safety and security, both through but also beyond their elected representatives. By avoiding the question of political review, O’Connor instead opts for a more tradi- tional path of eminently qualified Canadians to serve the ICRA in a similar manner as has been the case with SIRC.
While such persons and credential- driven review mechanisms may well have important contributions to make, they alone cannot suffice. A much stronger degree of direct public engage- ment is required in order to create the sort of ongoing, participatory and perform- ance-driven accountability regime required for 21st cen- tury security challenges. How odd that the rebuttal to such notions is often that the public is not sufficiently informed or qualified, when as a society we routinely empower juries of our peers to determine guilt or innocence in the most complex and insidious of matters. Precisely how to involve the pub- lic is admittedly a complex question: a starting point is a meaningful interface between the citizenry and elected offi- cials. A new parliamentary body can complement the work of independent review functions and, respectfully and carefully, begin to politicize discus- sions about national security in a posi- tive manner. Even as parliamentarians may well be sworn in as Privy Council members in order to respect classified information, a profoundly important issue worthy of political debate is how to balance secrecy and openness in the conduct of national security.
O’Connor struggled with this very issue himself, preferring to defer (in order to complete and release his report) what remains an ongoing court chal- lenge of the federal government’s refusal to release significant portions of com- mission proceedings. The Canadian Senate has reported repeatedly and forcefully in recent years on its inability to meaningfully review Canadian secu- rity agencies in light of the pervasive ”œculture” of secrecy (a concern acknowl- edged by Anne McLellan, then deputy prime minister and minister responsible for national security).
Review bodies such as SIRC and the proposed ICRA play a very precise role. Their purpose is to ensure that existing laws are upheld and respected, while also providing a channel of legal recourse for those with legitimate grievances. SIRC itself underscores this retrospective mandate as ”œnot provid- ing oversight of current CSIS activi- ties.” As important as such review functions are, they are in no way a substitute for ongoing political review and a proactive dialogue as to the objectives and means of an enlarged agenda of public safety and security. The current absence of such condi- tions is both striking and worrisome.
Rectifying this deficiency is impor- tant since a number of important issues call for enlightened political and public attention. One such issue is how best to reconcile the conflicting demands of complexity and clarity with respect to administrative and political accountability.
A common criticism of the O’Connor blueprint and likeminded reforms in recent times, such as the new federal Accountability Act, is the danger of an overabundance of controls and watchdogs " the likes of which threaten to stifle any hope of innovation and free- dom within the public service. Applied to the security realm, O’Connor’s layering of bolstered review offices and coordinat- ing committees could stifle creativity and responsiveness in a volatile and often vir- tual environment of criminal and terror- ist actions that are poorly suited to safely adhering to procedure.
The immense challenges of informa- tion management are a central theme of O’Connor’s final report, acknowledging the constant flows of information across departments and agencies, across levels of governments and, of course, across national borders. Was anyone truly surprised to learn that in the aftermath of 9/11, rules were broken as law enforcement officials rushed to share information in an urgent effort to assess potential threats while responding to established ones?
Therefore, one must ask how governments can best respond to the unavoidable complexities of today’s environment. Is it, as has been the case since 9/11, to remain loyal to the political traditions of ministerial accountability that " for the sake of clarity and simplicity " presuppose that one individual can oversee the massively expanded portfolio of public safety and security and all of its subcomponents (while respecting the arm’s-length rela- tionship to law enforcement)?
Public safety and security has arguably become the single most com- plex and multi-faceted agenda con- fronting not only the federal government but the public sector and the country as a whole. While some may lament the introduction of new mecha- nisms and approaches that seem to chal- lenge the integrity of traditional organizing principles, it is worth asking whether traditions established in the 19th century or earlier are sufficiently robust to meet the challenges of the 21st.
At a minimum, with more than 20 federal departments and agencies involved in national security, should we not expect more than a single min- ister to be accountable to Parliament for both process and results? There are surely opportunities to envision a new cabinet subcommittee (one that would at least partially convene in public) to grapple with the horizontal complexi- ties of an integrated security apparatus and report collectively on both means and results.
In this regard as well, O’Connor has done his part " arguing for statuto- ry gateways across his expanded set of review offices (themselves overseen by an overarching committee) in order to allow for some basis of systemic review.
Despite its potential for authoritative clarity, he resists calls for a new ”œsuper- agency” that would merely add to an already overly rigid federal bureaucracy. As terrorists and criminals organize in a networked fashion, public sector guardians must do the same " and this challenge is as much political as it is technological and organizational.
Adding to this complexity is the unavoidable reality that such net- worked responses must also transcend jurisdictional boundaries. O’Connor insists, for example, that RCMP review must extend, as appropriate, to local and provincial authorities, all the while acknowledging the fluid and informal nature of much of the collab- oration and information sharing that takes place. Despite such integrative action on the ground, our ”œnational” security strategies have mainly been federal-government-driven strategies, a capacity weakness for communities and regions that has been well docu- mented by Canada’s Senate among other groups. More effective intergov- ernmentalism, as a basis for a truly integrative security agenda, requires a more overt and politicized discussion than has been the case to date.
Finally, there are the vexing questions of Canada-US relations that proved so central to Arar himself. With the US bowing out of the inquiry’s proceedings, Justice O’Connor could only chronicle the manner by which bilateral informa- tion flows involving mainly the RCMP on this side of the border breached for- mal procedures on numerous occasions (as well as explanations for doing so). Few Canadians would dispute the need for transnational collaboration beginning with our American partners. At the same time, the schism between the rhetoric of Canadian political lead- ers espousing national sovereignty and the operational alignment of our post- 9/11 security efforts with those of the US is widening. Here, then, O’Connor’s blueprint must be viewed as one impor- tant piece of a larger puzzle. The future of national security is intertwined with foreign policy, international institu- tions and, most predominantly, new continental governance relationships such as the Security and Prosperity Partnership of North American.
Here, too, such themes demand a more honest and artful examination of the implications for both Canadian policy and public sector organization and accountability. They require polit- ical dialogue and public engagement.
The final report of the Arar Commission of Inquiry presents a uniquely comprehensive analysis of Canada’s national security apparatus that must be fully leveraged. Justice O’Connor merits both praise and con- sideration, but the country would be poorly served if this were to be an end- ing, and not a new beginning. A conver- sation involving all stakeholders is now required. The fundamental task, involv- ing both policy and process, is determin- ing how best to strike the appropriate balance between democratic freedom and collective security, and foster strong, adaptive and accountable mechanisms for transforming this balance into strong capacities and successful outcomes.