Notes for remarks to the House of Commons Standing Committee on National Defence

Notes for remarks to the House of Commons Standing Committee on National Defence

By the Hon. Jean-Pierre Plouffe

Communications Security Establishment Commissioner

Tuesday, March 21, 2017

Check Against Delivery

Chair, honourable members, I am pleased to appear before this committee. I am accompanied by my Executive Director, Bill Galbraith.

You have a copy of my curriculum vitae and biographical details, so I won't repeat them. But I would like to emphasize two points.

The first is the value I place on the first decade of my career as a legal officer in the Office of the Judge Advocate General of the Canadian Armed Forces, and subsequently in the active Reserves as both defending officer and military judge at Courts Martial. This experience has been helpful in my understanding of CSE's role, particularly where it involves support to the Armed Forces. 

The second point I would make is I have found that my decades-long experience as a judge, where independence and impartiality are paramount, has stood me in good stead during more than three years as CSE Commissioner. Determining questions of compliance with the law, based on facts as a result of reviewing CSE activities, is consistent with a judicial career. 

Being a retired or supernumerary judge of a superior court is a requirement set out in the National Defence Act, the legislation that mandates both my office and the Communications Security Establishment.

A few key points about the role and mandate of the office I hold.

My mandate is threefold:

First:   To review the activities of CSE to determine whether they are in   compliance with the law, including protecting privacy.  This is the major
           portion of our work;

Second: I may receive and investigate any complaints I consider necessary. Complaints are rare, reflecting the foreign focus of CSE activities;

Third:    I have a duty to inform the Minister of National Defence and the Attorney General of any CSE activity I believe may not be in compliance
            with the law. 

The Commissioner's external, independent role, focused on CSE, assists the minister responsible for CSE in his accountability to Parliament for that agency.

Let me provide you now with four key issues that have my attention.

My primary concern is Part V.1 of the National Defence Act, the section that mandates both CSE and my office, and that came into effect as part of the Anti-terrorism Act when it received Royal Assent in December 2001. That legislation is now almost 16 years old and needs revision.  Let me explain briefly.

First, there are ambiguities in Part V.1, identified not long after that part came into effect. This is not surprising given that it was written in haste in the aftermath of the tragic events of September 11th 2001.

My predecessors began calling for amendments over 12 years ago, to remove those ambiguities. The ambiguities are, to my mind, straightforward and not controversial. 

Since 2001, technology, the threat environment, and the legal landscape, have all evolved. The law has not kept up.

During the course of reviews of CSE activities, other recommendations for amendments have been made.

For example, in the fall of 2015, I recommended that the law give explicit authority to CSE to collect, retain, use and share metadata. Both the Minister of National Defence and the Minister of Justice accepted this recommendation. 
The questions surrounding metadata and privacy, along with the value accorded metadata by the intelligence agencies for their work, make this a more complex issue that must be considered carefully. The challenge for the legislative drafters will be to have language that is technology-neutral, so that the law will not become quickly outdated as technology changes. 

My second key issue is the broader national security accountability framework and what impact it may have on the role of the CSE Commissioner and the office.

The government introduced legislation to create the National Security and Intelligence Committee of Parliamentarians.

I spoke about Bill C-22 before another committee last fall. I believe greater involvement of parliamentarians, who are cleared for access to classified information, will help strengthen accountability, and public trust.  Will this happen overnight?  No, but it is an important beginning.

We have considered how we might begin a productive relationship with the committee and its secretariat. This would, of course, involve the direction provided in the bill as it was presented – that the committee and each review body will “take all reasonable steps to cooperate with each other to avoid any unnecessary duplication of work”.

And there remain, of course, many other departments and agencies that have some role in national security but are not currently subject to review.

We await further information about the government's intentions for national security accountability mechanisms following the national consultations.

The main point I would make is that regardless of structure and the overall accountability framework, expert review, that is the type of review conducted by my office, by the Security Intelligence Review Committee (SIRC), and by the Civilian Review and Complaints Commission for the RCMP (CRCC), is a necessary and key component.

My third issue is related to the previous one.

Bill C-22 sets out co-operation, or information sharing, between the committee of parliamentarians and the existing review bodies.

But the creation of a national security committee of parliamentarians will, I believe, entail, even require, greater co-operation among the existing review bodies, in addition to our co-operation with the committee of parliamentarians.

There is a certain amount of co-operation that can occur between review bodies. For example, my predecessor and I have sent letters to my colleague the Chair of SIRC with recommendations or findings from our reviews of CSE activities that implicate CSIS.  It is then for SIRC to follow up on those issues as it deems appropriate. 

However, I believe, and have stated this before, that there should be an explicit authority in legislation for co-operation among review bodies.

My fourth key issue deals with transparency. Since the disclosures of highly classified documents stolen from the National Security Agency by Edward Snowden, public trust in the activities of the intelligence agencies and in the effectiveness of review or oversight mechanisms has been put into question.

Greater information and explanations of why certain activities are conducted by the agencies would help the public debate, as it has in the United Kingdom. There, public reports by the parliamentary Intelligence and Security Committee and by the Independent Reviewer of Terrorism Legislation have provided a great deal of detail that has, among other points, presented an operational case for use of certain authorities and powers.

Most people engaged in this debate I believe accept that secrecy is a fact of life in national security. The intelligence agencies would not be effective if they could not work in secrecy.  It is because of this fact that the review bodies were established, with security-cleared staff, to monitor what is going on inside the secret agencies and assess whether activities comply with the law.

Secrecy and the Snowden disclosures have raised skepticism. When the public learn of mass data collection, they want to know whether it's really necessary and are there adequate privacy safeguards.  Explanations would help.

The four issues I've described briefly will all, I believe, contribute to strengthening accountability of national security activities, and strengthening public trust. In particular, I look forward to working with the Committee of Parliamentarians when it becomes a reality.

Thank you for this opportunity to appear before you today. My Executive Director and I would be pleased to answer your questions.

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