Overseeing Canada’s spies: Some sobering second thoughts for senators

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Dear Liberal senators,

First off, congratulations. Judging by the announcement you circulated this week, this public discussion of "parliamentary oversight for Canada's intelligence services and national security organizations" you're slated to have on Wednesday is shaping up to be quite something.

"We feel it is important to discuss this in an open forum," your announcement says.

"Parliamentary oversight?" "Open forum?" These are radical ideas – in Canada. After all, this is a country where who-watches-the-watchers is a question often posed, yet rarely answered satisfactorily.

One of your invited guest speakers, Conservative Senator Hugh Segal, is sure to point this out, of course.

Mr. Segal had better access to state secrets during his early 1980s career as a Prime Minister's Office staffer than in his late career as a lawmaker in the 2000s.

In recent years, he's been highlighting that Canada is about the only G7 or NATO country that doesn't routinely afford a peek behind the curtain of state secrecy to a select committee of lawmakers – politicians charged with maintaining an abiding interest in intelligence matters.

In his Sisyphean way, Mr. Segal is trying to roll the intelligence-accountability issue up the Hill of parliamentary intransigence one more time. He is taking one last crack at a private member's bill before he shuffles off to academia next month.

It's also worth pointing out, Senators, that your Liberal colleague Wayne Easter even has a variation of this bill in the House. You remember Mr. Easter – the former solicitor-general? The nation's top law-enforcement official?

In fact, Canada's lack of direct legislative review of spying operations has gotten so glaring that it even irks John Adams these days.

And he's a retired spymaster, at that.

It will be interesting to hear what Mr. Adams says when he comes to you today. He has been lately been quoted saying he sometimes had to apply his foot heavily to the brake, and not just the accelerator, during his old job in running Canada's global-surveillance machinery.

And you may also want to consider what a couple of former ministers of national defence said in the wings the other day, as they were leaving an appearance before the senate committee.

David Pratt was the minister in 2004. Bill Graham was the minister in 2005. In consecutive years, they signed variations of a Top Secret document – "ministerial directives" – involving how Canada's spies could collect, treat and analyze what's known as communications metadata. Much remains unknown about how Canada uses the stuff, but just know that access to it can make our spy agencies vastly more powerful than they have ever been.

The former minsters told Globe and Mail reporter Josh Wingrove this is a good thing. They said they had no regrets about signing these orders. But they also suggested that this is something Parliament should keep an eye on as technology evolves.

"You have to go back and revisit these things from a policy standpoint," Mr. Pratt said, who added that a parliamentary intelligence committee "certainly merits some discussion."

As for Mr. Graham, he said he would have placed the country at risk had he not souped up spying activities with the metadata order. But, he added, "there are now indications that it can be used in ways that were probably not originally thought when it was brought in … so you now may well have to develop further ways to circumscribe its use."

Trouble is, Canada's lawmakers can't rein in spying operations that they can't see. They would first need something like a special committee of Parliament for that.

But you don't have to take the word of just former spymasters and solicitors-generals and defence ministers on that point.

There's another voice too worth hearing on this subject.

And it belongs to a former senator.

"The natural tendency of Government is toward abuse of power. Men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty," he wrote.

This was Frank Church, of Idaho, who headed a 1970s U.S. committee in his name that placed increased legislative and judicial controls on American spying. Some people are saying its high time we had something like a Church committee in Canada.

In writing his powerful report a couple of generations ago, Mr. Church argued that the problem wasn't ever really about the spies. It was the division of powers between the branches of government. And his core contention was that an uninquisitive legislature all but invites executive abuse of government intelligence activities.

"For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates," Mr. Church wrote. "The exercise of this power was not questioned or even inquired into by outsiders."

He continued by saying that "whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such Executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected."