Speeches and Presentations

Transparency and Intelligence

Notes for Remarks at Royal Canadian Military Institute (RCMI) Toronto, Ontario

Jim Judd, Director, Canadian Security Intelligence Service

September 28, 2006

Check against Delivery

I’ve been asked to speak to you this evening about transparency and intelligence, especially in the context of the organization I head, the Canadian Security Intelligence Service.

Transparency is not a concept that many people would readily associate with an intelligence agency. But this evening I’m asking you to go beyond the headlines and conventional wisdom about government and CSIS and to look at this matter in perspective.

I’d like to structure this discussion around three key propositions:

First, CSIS, as is true of many public institutions, cannot be as transparent as some critics would like. That is true for a series of both legal and operational reasons.

Second, in the case of CSIS, there is a rigorous regime of controls, judicial oversight and external review in place to ensure that we operate within the law and that any lack of transparency is legitimate.

Finally, you may be surprised to see how far CSIS goes in meeting expectations of transparency that have become norms not just in government but in the private sector as well.

In the spirit of transparency and by way of setting the scene for addressing these points, let me start by explaining CSIS. I hope that my initial comments about the organization will go some way in responding to my third proposition.

The organization was established in 1984 with the promulgation of the CSIS Act, principally in response to the recommendations of the McDonald Royal Commission report of 1981. In brief, the government of the day wanted to achieve two objectives: to place security intelligence into the hands of a civilian agency; and, secondly, to strictly define the new agency’s mandate and powers.

In addition to establishing the agency’s mandate, that legislation also put in place a system of political and judicial controls and review, both internal and external to Government, to ensure that CSIS operates within the law. It is noteworthy that more than 75% of our legislation deals with these issues.

The drafting of the CSIS Act represented several years of intensive work by officials and Ministers and a very open and public debate in Parliament. Earlier, in 1969, former Prime Minister Trudeau emphasized the need for public debate and examination of security matters, because “it is an area of public administration which all too often has been the subject of misunderstanding and misconception, and has thus come to be regarded (...) with excessive and unwarranted drama and mystery.”

The mandate of CSIS is: to collect information, report to and advise government on “activities that may on reasonable grounds be suspected of constituting threats to the security of Canada”

Our legislation defines “threats to the security of Canada” as activities directed towards or in support of: espionage or sabotage; foreign influenced activities; threats or use of acts of serious violence (terrorism); and subversion.

We are authorized to collect national security intelligence in Canada and anywhere in the world, but our Act limits us to collecting foreign intelligence – that is to say intelligence about foreign governments - within Canada but not outside the country.

CSIS also provides security screening assessments in relation to:

• employment requiring a security clearance in the federal government (and in several provincial governments);
  
  
• immigration, refugee and citizenship applications; and
  
  
• employees requiring access to sensitive sites (such as airport restricted areas, nuclear installations)..

As an agency within the Public Safety portfolio, we report to Parliament through the Minister of Public Safety.

We have an annual budget of approximately $340 million and approximately 2, 400 employees located at our headquarters in Ottawa, in regional and district offices across Canada, and in a number of foreign posts.

Our personnel include intelligence officers, analysts, computer scientists, linguists and others. We also have approximately 20 lawyers from the Department of Justice who provide us with legal counsel and who represent us in warrant applications before the Federal Court.

Like the rest of Government, we strive to maintain a diverse workforce that is representative of Canadian society. As a result, today we have more than 10 % of our employees who self-identified as belonging to a visible minority group and another almost 5% belonging to other employment equity groups. Nearly 50% of our employees are female; nearly 40% have French as their first language. We have a capacity to work in 85 foreign languages.

CSIS collects intelligence through a variety of means, both covert and overt. These include:

• Open source or public information;
  
• Physical surveillance;
  
• Human sources;
  
• Communications and telecommunications interception; and
  
• Information exchange with other intelligence and security services or law enforcement agencies, whether domestic or foreign.

Our national security investigations are proportional to the threat in question. At the lowest level, an investigation would entail checks of open source information or existing information holdings. A next level might involve, for example, a personal interview and limited physical surveillance. The most intrusive level of investigation could involve extended physical surveillance, communications intercepts or covert physical search of premises.

To put all of this into some context, we might have, in any given year, several hundred investigations involving warranted powers. A number of these would be directed against foreign government agents. But these investigations would represent only a fraction of the potential threats that might be initially drawn to our attention throughout any given year.

Targeting decisions for such investigations are reviewed and decided upon by a group of officials from CSIS, the Public Safety Department, and Justice Department lawyers. Investigations at the most intrusive level also require CSIS to obtain a Federal Court warrant to exercise those powers. Again, warrant applications are reviewed by officials from the same three agencies, as well as review by an independent counsel, prior to seeking the approval of the Public Safety Minister to proceed to the Federal Court.

We are subjected to a similar review process to engage in foreign intelligence operations although they are only instigated at the request of the Minister of Foreign Affairs or the Minister of National Defence. Investigations are also terminated throughout the year, again subject to a similar review process.

Obviously, the world of 1984 when CSIS was created is a different one from the one in which we live today. At the time of its establishment, we were in the midst of the Cold War and, not surprisingly, the focus of the organization was very much on foreign espionage activities in Canada. But time moves on and national security environments evolve.

Terrorism – here or abroad – and the threat it poses to Canada, Canadians, our allies and others is our pre-eminent concern today and has been for some years now. Last year’s United Nations report on Human Security identified terrorism as the most rapidly growing cause of casualties around the world.

More specifically, our pre-occupation is with what I would term as the terrorism associated with the ideology of Al Qaeda. That is to say, Al Qaeda as an organization itself, groups affiliated with it or those inspired by its ideology. This is a pre-occupation that is shared by most governments of the Western world and others as well.

Obviously terrorism is not a new phenomenon, even in industrialised democracies. In fact, prior to the September 11 attacks, the single worse terrorism incident, in terms of loss of life, was Canadian in origin – i.e. the 1985 Air India bombing.

While terrorism is our principal pre-occupation today, we are also active in dealing with a variety of other threats to national security. These include the espionage activities of foreign governments, efforts by foreign interests to interfere in Canadian affairs, the proliferation of weapons of mass destruction and delivery systems, some aspects of international organized crime, and some more purely domestic threats to security.

We interact with a host of domestic and foreign partners in carrying out our responsibilities. Domestically, at the federal level, we deal on a daily basis with a number of different departments and agencies including the departments of Public Safety, Foreign Affairs, Citizenship and Immigration, Transport, the Canada Border Services Agency, National Defence and the Canadian Forces, the Communications Security Establishment, the Privy Council Office, and a number of others.

At the international level, we have relationships with about 240 intelligence, security and police agencies in more than 140 countries.

While we work closely with the RCMP and other Canadian police services, law enforcement and intelligence are two very different activities. A variety of features differentiate the two; although we do work closely with the RCMP and, indeed, other police services in Canada. The differences include:

• CSIS is a civilian security intelligence agency, not a law enforcement agency – it has no powers of detention or capacity to compel cooperation and, of course, our personnel are not armed.
  
  
• Our objective is to investigate threats prior to action being taken or a crime committed while police more often than not devote more time, effort and resources to investigations of crimes after they have occurred.
  
  
• As such, our principal objective is to collect intelligence and where required, advise the Government of a potential threat. Unlike the police, we do not collect evidence per se (or collect information to evidentiary standards) to prosecute and secure convictions in court proceedings.
  
  
• CSIS has a lower threshold to undertake an investigation than do our police colleagues, ours being a “reasonable grounds to suspect” that certain activities constitute a threat to the security of Canada.
  
  
• Our mandate and authorities are set out in a single piece of legislation, enacted in 1984 and only very modestly amended five years ago in the omnibus 2001 anti-terrorism legislation.
  
  
• Our external review and oversight arrangements are different and, generally, more onerous than is the case with police services.

I hope that my description of CSIS will help to address at least a part of the transparency issue.

Let me turn now to my first proposition regarding the limits of transparency.

Confidentiality is obviously a significant fact of life in what we do. Many citizens tend to see this in the most negative possible terms, as a “culture of secrecy” that they believe pervades government. We are obviously in many ways a very “discreet” organization. But as one of my predecessors used to say: “We are not a secret organization, but an organization with secrets.”

So allow me try to explain what we strive to avoid disclosing publicly and why.

We do not acknowledge which individuals or organizations we are investigating. We do that for two reasons: the Privacy Act on one hand, and the operational imperative of not tipping our hand to those in whom we have an interest.

We do not reveal the identity of our employees involved in covert operations because that is prohibited in our own legislation and obviously because of concerns about both their personal safety and operational effectiveness.

We do not reveal the identity of our human sources for reasons of their personal safety and security and, again, for reasons of operational effectiveness. It is impossible to imagine us being able to do our job if we regularly revealed the identity of our human sources. Subsequent recruitment of human sources would be, to put it mildly, a challenge.

We do not reveal our investigative techniques and capabilities in order to maintain their effectiveness and, no less, for reasons having to do with the personal safety of our employees whose job it is to carry out these types of operations.

We do not reveal the specifics of our relationships with individual foreign agencies. We do that to maintain the confidentiality of information received from foreign governments without which their willingness to share information with us would vanish – very much to the detriment of the country’s national security interests.

I would remind you that in the international intelligence business, Canada is very much a net importer of intelligence. Thus, the collaboration of foreign partners is critical to our capacity to discharge our responsibilities.

Similarly, we do not identify those foreign countries in which we have personnel deployed. While we have acknowledged a presence in Washington, London and Paris; in reality, we have personnel deployed in another two dozen countries. We do not identify those principally for reasons of personal security of our employees.

Let me now move to my second proposition regarding the regime of controls and review that apply to our organization.

When CSIS was created, one factor was uppermost in the minds of its designers: how to ensure that appropriate safeguards were in place to protect the rights of Canadians given the nature of CSIS’ mandate. As a consequence, much of our legislation, as I mentioned earlier, deals with Ministerial direction, judicial control and external review mechanisms.

This regime not only serves to ensure that we operate within the law and that the rights of citizens are protected but, as well, that our own claims of confidentiality or lack of transparency in some areas are legitimized, if you will.

Our targeting decisions and warrant applications are reviewed by representatives of the Public Safety Department and lawyers of the Justice Department. Our priorities are set annually by Ministers and operational direction to the Service is set by the Public Safety Minister.

The confidentiality of what we do and how we do it is, of course, listed in our applications for warranted powers before “national security designated” Justices of the Federal Court. This applies to both national security and foreign intelligence investigations. As well, confidentiality restrictions, except for Cabinet confidences, do not apply to our two external review agencies or special inquiries such as that conducted by Mr. Justice O’Connor.

Our applications to the Federal Court for warranted powers provide full disclosure of the rationale for the application, the sources (public, confidential, domestic or foreign) we are relying upon, and the rationale for the specific powers sought. Our affiants, legal counsel and supporting experts respond to questions from the Federal Court which may and do cover any and all aspects of the application. The powers sought in applications may be (and are at times) amended as a result of this review by the Court.

Increasingly, we are also providing the Court with more detailed background information on both the techniques and technologies we use in our investigations so as to provide the Court with a broader context in which to consider our applications. The same is true with respect to our review agencies.

Any relationship that we have with a foreign agency must be agreed to by two Ministers – the Minister of Foreign Affairs and the Minister of Public Safety. In addition, any such arrangements must take into account the human rights record of the agency or country in question. Any exchanges of information with foreign agencies are then subject to subsequent scrutiny by our external review bodies.

There are two external review bodies unique to CSIS and established in our legislation. The Inspector General reports annually to the Public Safety Minister on our compliance with the law and Ministerial direction. A second agency, the Security Intelligence Review Committee, composed of five Privy Councillors, reports annually and publicly on our activities and operations in addition to conducting separate reviews of public complaints on our activities. Both of these agencies also conduct ad hoc reviews of our organization throughout the year, sometimes more than a dozen a year.

We are as well subject to review by all of the agents of Parliament – from the Auditor General to the Privacy Commissioner and others – and other agencies of the Federal Government such as the Canadian Human Rights Commission

In addition to the foregoing, we have also been substantially involved in Mr. Justice O’Connor’s Commission of Inquiry on Maher Arar, last year’s review of the 1985 Air India bombing by Bob Rae and, now, the just launched inquiry, headed by former Supreme Court Justice, John Major, on the same issue.

We also appear regularly before committees of Parliament to discuss either specific issues or, as has been the case, since early last year, to participate in hearings related to the Parliamentary review of the 2001 Anti-Terrorism legislation.

One final point on this is that the Government has also committed to establishing a new Committee of Parliamentarians to review security and intelligence activities.

In sum, we are without a doubt, I think, the most reviewed organization of any in the Federal Government and the most reviewed intelligence service anywhere in the world.

I will conclude on my final proposition regarding our efforts on public transparency.

We have seen over the past years an increasing interest on the part of the public and the media to know more about the activities and operations of agencies such as mine. I think that we have seen that phenomenon both here and in many other Western countries and especially so in the wake of the 9/11 attacks in the United States.

Major inquiries in the United States have examined the role of security, intelligence and law enforcement agencies in the lead up to those attacks. Similar enquiries have surrounded the advice provided by some of these agencies in the decisions taken on military intervention in Iraq. Similar investigations have occurred in the United Kingdom, including most recently on the attacks on the London transit system last year.

In our own country, of course, our own current and past activities have been under unprecedented scrutiny and public exposure through the inquiries on Air India and the case of Maher Arar.

In sum, there has been a new “pull” factor at play in bringing agencies such as mine into the public domain. And this is beyond the already existing public reporting that is done on our activities through such mechanisms as the annual reports of the Security Intelligence Review Committee.

That said, there has also been a significant “push” factor operating from within intelligence agencies, mine included, to become at least somewhat better known and understood.

In fact, agencies such as mine have always interacted with our publics through any number of means. We produce an annual report and maintain our own Website. We provide briefings to specific groups – in the business community, for example - on security issues and concerns. We run an active and ongoing program across the country to recruit new employees including through participation in on-campus job fairs.

Operationally, for security screening purposes or other investigations, our personnel will meet thousands of Canadians in any given year.

We have also sought to respond to the concerns of different communities in the country through engaging in outreach activities both to listen to their concerns and to better explain who we are and what we do – or don’t.

At the end of the day, however, we have to continually reconcile two competing imperatives in all of this: on the one hand, the growing public appetite for more information and transparency; and, on the other, the need to maintain certain confidences for reasons of law, personal safety or operational effectiveness.

I know that in my own time at CSIS, we have maintained principles of confidentiality even when releasing information would have been to our benefit. But, in the final analysis, we cannot pick and choose the application of basic principles to respond to the allegation of the day.

So there will always be, I suspect, a considerable tension at play between what people wish to know and what we can reasonably make public. I hope that my remarks tonight will have given you both a better understanding of the factors at play in this dynamic and, no less, some reassurance that effective regimes are in place to ensure that we remain reasonable in how we respond to the demand for more information.

Date modified: 2006-10-06

Important Notices