Intelligence Oversight
ALAN BREAKSPEAR
© 2004 FrontLine Defence (Vol 1, No 3)

In many countries, including Canada, the war on terror has brought with it a new awareness of the business of intelligence – how intelligence is conducted, what it produces, how it is used and its strengths and weaknesses. Some observers have ­identified a new phenomenon of “public intelligence,” in which governments talk publicly about the intelligence they have used as the basis of major decisions, including that of going to war.

The public, and the media, have more access to information about intelligence than ever before, but is the information well understood by its ­presenters and its audience?

Important questions are being raised these days ­about the efficacy and completeness of Canada’s intelligence oversight arrangements.

There are review mechanisms for ­various security and intelligence agencies, like CSIS and CSE, and for many activities of the Canadian Forces and the RCMP. But how effective are they, and how are they measured? And does the system properly hold the police accountable for the use of intelligence in its national security role? Do the review agencies, and/or the auditors, understand intelligence well enough to judge not only its propriety but also its effectiveness?

What is “intelligence oversight”? It’s obviously important, in this post-9/11 world of war on terror. New security policies and programs, changes in legislative mandates for security and intelligence agencies, new threats, new kinds of investigation, reports of abuse of human rights in other countries, all raise public concern about government maintaining appropriate balance between rights and freedoms on one hand and prevention of terrorist threats on the other.

Technically, if you look at the words “oversight,” meaning external control and accountability, and “review,” meaning examination and audit after the fact, you will find that we don’t have public intelligence oversight in Canada so much as intelligence review.

Other countries, notably the USA, have mechanisms and processes for examination of intelligence activities before, ­during and after their implementation – not conducted always in public, but by independent, external reviewers, in ways that are clearly intended to represent the public interest. Here in Canada, the formal mechanisms for “intelligence oversight” are, in fact, post facto arrangements for the review of intelligence activities, either at regular intervals or in response to specific complaints.

In its simplest form, intelligence is ­simply a procedural toolkit for collecting and analyzing information in such a way as to help in forecasting future events in time to make decisions about those events – to mitigate or avoid threats and risks, or to take advantage of opportunities.

Almost all organizations, whether public, private or not-for-profit, engage in some form of intelligence when they think about their future plans, collect and ­analyze relevant information, review options, and make choices.

It can be called competitive ­intelligence, or business intelligence, or strategic intelligence – and it is rarely of concern to the public or to government unless it involves industrial or economic espionage (specifically addressed in the US Economic Espionage Act of 1996, and more recently in Canada by Section 19 of the Security of Information Act).

Governmental intelligence activities range more broadly, and are designated either by the subject matter addressed ­(economic intelligence, foreign intelligence, defence intelligence, security intelligence, criminal intelligence, etc.) or by the collection means employed (human intelligence, signals intelligence, imagery intelligence, open source intelligence, etc.).

Interestingly, in Canada, as awareness has grown of the adoption by business of intelligence techniques and skills, drawing on the increasing availability of information and knowledge through the worldwide web, and through human interaction and global networking, intelligence activities (largely based in open sources) are proliferating throughout government, in departments and agencies not  traditionally associated with the function.

Few of these, arguably, should be subject to intelligence oversight and review beyond the scope of normal management and parliamentary control that applies to all government activities – represented especially by the Estimates process and the Audit function.

Intelligence carried out by private corporations or any other non-governmental organization must conform to all public laws and conventions. Only governmental intelligence agencies can do things denied to others, like invading personal privacy, and then only when properly empowered to do so in closely controlled circumstances. Concern about the potential for abuse of such special powers lies at the heart of Canada’s intelligence oversight and review arrangements.

The Security Intelligence Review Committee, whose mandate appears in the CSIS Act of 1984, is tasked to review the activities of CSIS, as reported to the Minster responsible, and to investigate complaints. The Commission for Public Complaints against the RCMP, whose mandate appears in Part VII of the RCMP Act, acts on receipt of complaints, though its Chair and Vice Chair may initiate an investigation “in the public interest” and have done so in some eleven cases. The CSE Commissioner’s task is mainly one of review. His mandate appears in that part of the National Defence Act which deals with the Communications Security Establish­ment, and is modified by certain provisions of the more recent Security of Information Act.

There is growing concern that these review arrangements might not be adequate or appropriate for the changing circumstances we see today. In January 2004, the Chair of the Commission for Public Complaints against the RCMP, Ms. Shirley Heafey, issued an interesting “Media Advisory,” warning that in her view, “recent events have increased public concern that there is no effective civilian oversight of the national security activities being performed by the RCMP.” She pointed out that recent legislative change had given the RCMP “new powers to combat terrorism” but had not assigned “civilian oversight” of these new tasks. She asserted that “the most effective option to ensure that there is proper civilian oversight is to give this Commission the same powers over the RCMP that SIRC has over CSIS.”

The point is obviously valid, though one might point out that the Com­mission’s role is that of review rather than oversight, and that it has a duty to advise and assist the Government in its exercise of power over the RCMP, rather than power over the RCMP itself.

Such quibbles aside, a similar absence of specific oversight or review is also visible in the case of other intelligence activities in government, whether within the Canadian Forces, for example, where intelligence collection and analysis is an essential feature, found in several parts of the military structure, or in the case of the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), created under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The FINTRAC Act includes provision for internal review of individual actions in specific cases, and for review of the legislation by parliamentary committee after five years of experience, but otherwise has no external review mechanism analogous to SIRC or the RCMP complaints commission.

Governmental intelligence activities like these are subject to the normal oversight and review mechanisms applicable to all governmental activities – mainly, as noted earlier, the Estimates process and the Audit function, both of which represent the essence of parliamentary control – real oversight. In addition, of course, FINTRAC and the military intelligence functions, like all other activities of government, must meet the requirements of the Access to Information and Privacy legislation (ATIP) – in itself, an effective engine of accountability and transparency.

The Auditor General has addressed the question of whether Canada’s intelligence oversight and review arrangements are effective, answering the age-old question of “who shall watch the watchers?” with the obvious challenge – who else but other watchers? The key question is, do the watchers understand enough about what they are seeing to be effective?
 
This issue will become even more important when, if ever, decides to establish an active foreign intelligence service. Intelligence collection in foreign territory is the most challenging form of intelligence, one in which Canada has no real experience. Arguably, it produces the most valuable intelligence, if tasked appropriately by government. In the current global circumstances the ongoing debate about whether Canada needs such a service, and why, must also address the question of who would have responsibility for its oversight and review.

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Alan Breakspear, President and CEO of Ibis Research Inc., provides international clients with services in Competitive Intelligence and Knowledge Management. In his earlier government career, he served as analyst and manager (to ADM level) in CSE, PCO, TBS Program Branch, CSIS and the Solicitor General Secretariat.
© FrontLine Defence 2004

 

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