Just a few days ago I said that I was not a big fan of the American intelligence community and a couple of weeks before that I explained, in sightly more detail, that my lack of enthusiasm was, in some part, because I believe that US President John F Kennedy reformed the CIA on the wrong model.
It seemed clear to me, back in the 1980s, in the wake of a scandal involving the RCMP’s security service, that Canada decided to build in incomplete intelligence service on something akin to the British model. The British have three main civilian intelligence agencies:
- GCHQ which is responsible for cyber security and collects signals intelligence on a global basis and is, with Canada, part of the ‘Five Eyes‘ programme;
- MI5 which is the UK’s domestic security (we used to call it counter intelligence) agency; and
- MI6, the famous Secret Intelligence Service, which has a mandate to serve and protect British interests around the world.
In the 1980s Canada already had (since 1941) a Signals Intelligence service which is now called CSE and which has a mandate to gather signals intelligence, provide cyber security service and advice and to assist law enforcement on some specific case-by-case bases.
When, after a series of scandals involving the RCMP Security Service’s efforts to combat Québec separatists a Royal Commission recommended that the government establish a new, civilian security (counter-intelligence) service the government of the day agreed and CSIS was born.
It seemed clear enough to me, then, and it seems abundantly clear now, that successive Canadian governments, Conservative and Liberal alike, have chosen ~ eyes wide shut, so to say ~ to ignore the ‘need‘ for the third leg ~ something akin to MI6. Gathering foreign intelligence was seen, broadly, to be the responsibility of the Department of External Affairs (later Foreign now Global Affairs) with some, very limited (due to resource constraints) efforts by the Departments of Finance, Industry and National Defence.
Now I see, in a report in the Globe and Mail, that The Honourable Simon Noël, a judge of the Federal Court, has ruled, very carefully, that “The Canadian Security Intelligence Service does not have the legal authority to spy outside of Canada unless national security is at stake.” Judge Noël was quite clear in saying that “Parliament intended to grant the Service … a limited secondary mandate to collect foreign intelligence to assist the respective Ministers … [and] … The geographical limitation’s purpose was to bar the Service from conducting CIA-like controversially aggressive ‘covert’ and ‘offensive’ activities abroad.” He went on to say that the limits set by parliament are intended to ““mitigate the political, diplomatic and moral risk of conducting foreign intelligence collection abroad.”” I’m not 100% sure that’s true ~ it was never clear to me that parliament explicitly wanted to confine foreign intelligence gathering to the edges of diplomacy as much as it just wanted to not have a Secret Intelligence Service that might look and act like the CIA. But Judge Noël explained that ““I am not permitted to grant warrants for extraterritorial activities when Parliament has clearly not given me the power under my warrant jurisdiction to do so.” He also said: “I am very concerned that the interpretation put forward by the Attorney-General could open the door to other activities not intended by Parliament.”“
His last statement seems, to me, to be a challenge to the CSIS management team and to the cabinet to seek and provide clarity about how Canada’s two legged intelligence community is to function in the 21st century.
I think Judge Noël’s ruling is a good one. As I said, above, successive governments, of all political striped, made choices ~ they chose to ignore a key national capability (to gather foreign intelligence “on the ground” and even to conduct sub rosa operations on foreign soil in order to protect Canadians. I, personally, think that trying to expand CSIS’ mandate into something resembling the CIA would be a mistake … but I do think we need a foreign intelligence service that is separate from other departmental intelligence gathering agencies and answers to a minister but is ‘coordinated’ by the Privy Council Office.