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Intelligent debate: Shifting security landscape demands nuanced conversation

For a G-8 member and important middle power with a long history of positive engagement in the world, debate about national security in Canada is, for the most part, fairly sparse.

Our elites tend to ignore it altogether. Our universities, with some quite wonderful exceptions, do not devote many resources to it, and the number of journalists who write about it on an almost full-time basis can be counted on one hand. And when we do engage in debate on the subject, it is often stuck in concepts that simply do not reflect contemporary realities.

In countries that have lived with terrorism, and have seen its effects up close, the reality is different, and the debate is often fulsome. But not, I suggest, in Canada.

And yet, we can’t forget, Canada has seen its share of terrorism: 329 people, the vast majority of them Canadian, killed in the bombing of Air India Flight 182 in 1985; one Turkish diplomat and one Canadian guard killed in Canada in the 1980s; 24 Canadians killed in the attacks on the twin towers in September 2001.

In June 2006, a group of young men were arrested in Toronto on charges under the Anti-Terrorism Act, accused of plotting serious terrorist acts on Canadian soil. Five have been convicted or plead guilty to date and these cases continue to work their way through the courts. In March of this year, Momin Khawaja was sentenced after being convicted of financing and facilitating terrorism and building explosive detonators for use in terrorist attacks. And in October, Said Namouh was found guilty in Quebec for his role in planning terrorist acts outside of Canada.

Clearly, Canada is not immune.

We are a trading nation, selling, buying and investing in every corner of the world. We believe in diplomacy and international development, and devote considerable energy to making the international system strong and functional through its multilateral institutions. We are peacekeepers, peacemakers and combatants along with our allies when the international order is threatened.

Some of these activities are fully accepted by Canadians, while others are controversial, but they are at least debated with some reason. We believe in democracy and human rights, and we believe in protecting those values with all the tools at our disposal.

And yet, we have a serious blind spot as a country. Many of our opinion leaders have come to see the fight against terrorism not as defending democracy and our values, but as attacking them. Almost any attempt to fight terrorism by the government is portrayed as an overreaction or an assault on liberty. It is a peculiar position, given that terrorism is the ultimate attack on liberties.

Why then are those accused of terrorist offences often portrayed in media as quasi-folk heroes, despite the harsh statements of numerous judges? It sometimes seems that to be accused of having terrorist connections in Canada has become a status symbol, a badge of courage in the struggle against the real enemy, which would sometimes appear to be the government. To some members of civil society, there is a certain romance to this.

I do understand the “presumption of innocence” principle and am not arguing that those accused of offences should be portrayed as guilty. In fact, a more balanced presentation is what I am hoping for.

There are two prominent and somewhat disturbing tendencies in how those charged with terrorist-related crimes are often portrayed in Canada.

First, terrorism itself is often portrayed not as a real crime, but as a political one. Terror is downgraded to a form of dissent, an act of revolutionary charm rather than a criminal code offence and a violation of international human rights standards. Much of the coverage of the trials of those charged in Toronto has reflected this approach, with some notable and very welcomed recent exceptions.

Furthermore, unless a bomb explodes or a murder is committed in the name of terrorism, it seems like the “mere” act of plotting to commit a terrorist act, or financing terrorist groups, or travelling abroad to train in terrorist camps are not considered criminal acts.

Second, accused terrorists are routinely portrayed as being too unsophisticated, ill prepared or youthful to actually commit such heinous acts. This theme permeates a fair amount of the coverage of those charged in the Toronto plot. Some terrorists are, like those of many spy novels, enormously resourceful and talented. Others are determined, but average foot soldiers serving a cause or idea.

Several commissions of inquiry and numerous legal proceedings have asked CSIS and some of its government partners to look within, to examine the way we operate and the way we think, and to improve.

Those working in national security are not immune to Manichaean, black-and-white thinking either. This is something that we continue to work on. But the debate about national security in Canada, and in other countries, has often been unsatisfying because it is shackled to one rigid but persistent construct – that security and human rights are always in opposition, that they are a balancing act of sorts.

I would argue, however, that security is a human right. Security and rights are not in opposition, but are intertwined like DNA strands. Together they form part of the genetic code of modern citizenship. People around the world yearn for both civil liberties and security, and have a right to both. People come to Canada to enjoy a high level of political, economic and religious freedom.

So to paraphrase Shakespeare’s Richard the Third: my kingdom for a new metaphor. We would all benefit from a more nuanced debate worthy of a G-8 country.

Shifting legal landscape
CSIS also finds itself in a turbulent legal environment. The CSIS Act came into effect in a particular time, with particular underlying assumptions:
· that we would be separate from police work and would not collect evidence;
· that to protect civil liberties, we would only retain what we strictly needed in order to do our jobs; and
· that we would appear in court rarely and in a very, very focused manner.

CSIS held fast to those underlying assumptions because we believed it was how our legislation told us to operate. A generation of employees heeded those values. And our two review bodies, SIRC and the Inspector General, made sure over the years that we adhered to those principles, and reported to the Minister or parliament when they felt we transgressed.

Over the past few years, however, each of those core assumptions has been questioned or modified by various legal rulings. It is unclear what the long-term implications will be. One thing is clear: our society has given more expression to individual rights and freedoms through legislation, legal trends and evolving jurisprudence. Clearly the legal ground has shifted under our feet, and this tenuous new environment has had profound implications on how we work at every level.

This simple snapshot tells a story: in 1984, CSIS began with one legal counsel. Today there are 26 counsel and 18 support staff, and if we include those dedicated to litigation support throughout the Service, all told we have about 80 employees completely focussed on legal issues.

Over the past few years, we have been involved in the full gamut of legal processes, such as:
· criminal cases, such as the Toronto arrests and the Khawaja case;
· three commissions of inquiry (O’Connor, Iacobucci and Major);
· civil litigation, largely arising from the inquiries;
· immigration cases involving security certificates; and
· specialized reviews by our Inspector General or our review body, SIRC, that sometimes cover similar ground as the above inquiries or proceedings.

For the commissions of inquiry alone, more than 130,000 Service documents were reviewed and 108 current or former Service employees were interviewed or testified in public. This is just a glimpse of the scale of disclosure and preparation we must conduct as more and more of our energies are focused on fighting legal battles.

The effects of these rulings can often be sudden and remarkable. As a result of a Supreme Court decision in the Charkaoui case, we must now retain all operational material – such as notes, electronic surveillance and other data – related to cases that could involve future litigation. Because it is difficult to predict what an investigation will lead to, we have made the decision to retain virtually all the information we collect.

This one decision has, in effect, turned one of our founding principles on its head. Our Act instructed us to collect/retain information that was “strictly necessary” in order to determine if a person was a threat. This was seen as protecting civil liberties. Now the highest court in the land has told us to do just the opposite.

Information sharing has also been at the heart of many of our legal disputes in recent years. Many of the legal cases focus on what information we share with foreign countries. Clearly, we must not share information that could lead to the mistreatment of our citizens, and we have taken strong steps to ensure that does not happen. Information from foreign agencies, however, is vitally important to the protection of Canada. We live in a globalized world where everyone is highly mobile, including those who want to commit terrorist acts. Information sharing takes place in every endeavour and at every level – economic, political and legal – and intelligence agencies must be able to continue this vital practice. We cannot unilaterally disarm.

I realize that critics don’t like to hear this, but just as we have diplomatic links with countries with poor human rights records, so must there be intelligence links. If Canada’s only intelligence sharing took place with countries that had pristine human rights records, there would be little we could do to track threats across a turbulent planet. We would, in addition, be almost helpless to assist Canadians who are abducted or threatened overseas. In fact, in some countries the intelligence agencies are more influential than their foreign ministries, and therefore vital in a crisis. That is unsatisfying to some, but is a fact of life.

Having said this, I would want to be clear that CSIS complies with the law – we will not rely on information gathered through torture or mistreatment.

Complex threats
The reason I am preoccupied with the effect of both the quality of ongoing public debates and the legal environment is that CSIS still has a core mandate it must fulfill – to protect the security of Canadians. We are accustomed to working in an unpredictable environment. Over the last few years, however, our employees have spent too much of their time thinking about where we stand rather than what the bad guys are up to.

The threats we face are becoming more complex, in part because of the high number of failed states and the strong emergence of groups, inspired by al Qaeda, that emerge from the chaos of collapsing societies.

In this state of constant flux, it is important that we be able to focus on our core mandate to the highest possible degree. It is clear that operating more outside of Canada is a crucial element in tracking and understanding the threats to Canada.

The recent criminal convictions I enumerated above speak to the ongoing reality of terrorism in Canada that is based on religious and political extremism. The Internet has allowed terrorists to use social networking technologies as a force multiplier, permitting them to gather in the virtual world to recruit, plan and execute acts of terror.

Technological advances throughout history have always been used for a variety of purposes, good and ill. As the Internet, however, spreads its tentacles into every society, every computer, every home, the implications are of course enormous. We need the tools to separate those who “tweet” from those who terrorize.

CSIS is, of course, hopeful that lawful access legislation, introduced in the House of Commons, will become law. CSIS already has the right to access the networks of service providers when legally authorized to do so. This legislation would simply compel providers to update their equipment. There is no compelling reason that terrorists should have a virtual safe haven that spans the planet.

It’s also important, I think, to look at the threat environment in new ways. Intelligence agencies are expected to be oracles, to look into the future like Nostradamus. Who knows exactly what new challenges Canada could face because of the effects of climate change on our Arctic and on other parts of the world? How will the shift away from traditional carbon-based energy sources cause traditional power relationships to alter?

One thing is clear: to keep up with this kind of constant, seismic change, intelligence agencies must use all the tools at their disposal. We must hire the right people, train them well, be superb at technology and proficient in the use of open-source information. We must also be able to analyze and interpret this morass of information into intelligence that serves to actually protect us. It’s a tall order, and to execute it we need support from our citizens.

We need a smarter, more balanced debate. We are ready to play our role in that debate, and to continue to meet our responsibility to be accountable and as transparent as we can be without undermining our effectiveness.

Richard B. Fadden is director of the Canadian Security Intelligence Service. This article is adapted from a presentation to the Canadian Association for Security and Intelligence Studies conference in Ottawa. For his complete presentation, please see www.csis-scrs.gc.ca.

Author: Richard B. Fadden from the Nov/Dec 2009 issue published

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