On national security, does Peter MacKay trust himself?

Are our politicians unfit to oversee national security?
Demonstrators attend a protest on a national day of action against Bill C-51, the government’s proposed anti-terrorism legislation, outside the Vancouver Art Gallery in downtown Vancouver, Saturday, March 14, 2015. THE CANADIAN PRESS/Jonathan Hayward
Sean Kilpatrick/CP
Sean Kilpatrick/CP

Peter MacKay apparently believes that politicians can’t be trusted to oversee the federal government’s national security operations. And this is problematic. Not least because Peter MacKay is himself a politician—a politician, for that matter, who is also the minister of justice and attorney general of Canada.

MacKay’s dismissal of politicians is included in his response to an op-ed by NDP Leader Tom Mulcair on the subject of Bill C-51, the Harper government’s Anti-Terrorism Act. In the midst of a longer defence of the government’s approach, MacKay turns to the question of oversight. He proceeds to implicitly dismiss the suggestion that a special committee of parliamentarians be given access to classified information and charged with reviewing or overseeing the government’s national security apparatus.

Both Liberal Leader Justin Trudeau and Mr. Mulcair have wrongly stated that the new powers granted to national security agencies tasked with protecting Canadians are not subject to proper oversight. They would rather see Canada’s national security oversight put in the hands of politicians; however, the best way to protect the fundamental freedoms of Canadians is to rely on our independent judiciary. Such oversight is further strengthened by the Security Intelligence Review Committee (SIRC), which provides independent, expert, third-party advice regarding compliance with the law.

As Mulcair noted yesterday, in a response to MacKay, it is at least interesting to see a Conservative defending the wisdom of the judiciary. Liberal MP Sean Casey put a finer point on this during debate in the House: the Conservative government that has passed several laws to limit judicial discretion on sentencing is now asking everyone to defer to the judiciary.

That irony aside, MacKay is also conflating two different issues.

Bill C-51 would have judges deciding whether or not to grant a warrant when CSIS seeks to do something that violates the Charter rights of an individual. This came up in my conversation with Ray Boisvert, a former CSIS official, and Craig Forcese, a law professor who has written extensively about C-51. Specifically, Forcese raised several concerns about the secret nature of these proceedings and what judges are being asked to do.

The slight of hand here is equating that specific process with the notion that a special committee of parliamentarians should be empowered to review the federal government’s national security apparatus, as if somehow the choice was between one or the other; C-51 does not ask judges to review the operations of CSIS, only to decide whether or not to grant a warrant in the specific cases CSIS presents.

MacKay then invokes the Security Intelligence Review Committee, a government-appointed body that reviews the actions of CSIS, which he lauds. Unfortunately, there are the concerns about SIRC’s resources and limited mandate. There’s also the hint of a false choice here: as Forcese explained, there’s no reason we can’t have both a parliamentary committee and SIRC keeping an eye on the government’s national security operations. In his response, Mulcair also noted that the government once appointed Arthur Porter to SIRC.

So all that should be understood about this paragraph from MacKay. And then there’s his dismissal of politicians.

They would rather see Canada’s national security oversight put in the hands of politicians…

Peter MacKay would seem to have rather preferred that himself, at least in 2004 when he contributed to a committee study that recommended establishing a committee of parliamentarians to oversee national security issues. But somewhere between then and now MacKay, a politician for the last 18 years, seems to have lost some significant amount of faith in politicians. It would apparently now be wrongheaded to have politicians overseeing national security operations.

Of course, we already have a politician overseeing national security. His name is Steven Blaney and he holds the title of minister of public safety.

And Blaney sits around a table with a bunch of other politicians who are responsible for the overall operation of the federal government. That group, called the cabinet, includes MacKay.

And another group of politicians, known as the standing committee on public safety and national security, will spend the next few weeks reviewing the contents and ramifications of Bill C-51.

The 308 politicians who are regularly elected to represent this nation’s citizens are assigned the fundamental tasks of reviewing and approving all government legislation and spending. The issues within their purview include, but are not limited to, criminal law, taxation, policing, social services, environmental regulation, transportation standards, food inspection, foreign aid, labour law and electoral rules. Since the Conservatives formed government, politicians have been asked to pass judgment on proposals for military combat.

If politicians can’t be trusted to exercise oversight of national security, why should they be trusted to exercise oversight of any of these things?

For that matter, if politicians can’t be trusted to exercise oversight of national security, why precisely do we bother with representative democracy?

Oddly enough, the Prime Minister announced new legislation today that turns MacKay’s equation around: new mandatory sentences of life imprisonment without parole will be applied to certain acts of murder and only the cabinet will be able to entertain an application for release. So politicians can’t be trusted to handle national security, but they can be entrusted to decide whether on specific individual’s freedom. And while the independent judiciary can handle decisions related to CSIS operations, the independent parole board can’t be left to handle parole decisions.

It’s worth noting here that in the House last week, Harper offered a version of MacKay’s aversion to politicians, but it was specific to the NDP.

Canadians are not going to trust oversight with a party that has opposed every single piece of security and anti-terror legislation ever proposed.

We could have a very philosophical discussion here about the nature of opposition in a parliamentary system, but there’s a simpler question here: Why would dissent disqualify anyone from overseeing government operations? Disagreeing with government policy should not be equated with being unfit.

Opposition is built into our system and that system depends on debate and the vigorous questioning of authority. If opposing the government’s policies were enough to disqualify someone from holding the government to account, the system would cease to exist.

Are there better arguments against setting up a special committee of parliamentarians for national security?

There’s a narrow argument about how we define “oversight”—something Philippe Lagasse handled in his recent piece on the idea of a parliamentary committee—but I suspect that’s mostly semantics and easily clarified.

And there’s a more general argument, also noted by Lagasse, about whether a committee would bury, rather than address, concerns about the operations of our national security agencies.

(I can imagine a narrow concern here about politicians being trusted to abide by the secrecy involved. The notion of a special committee on national security—as opposed to the House committee that already exists—is premised on the understanding that the parliamentarians involved would have access to classified information. You might try asserting that politicians can’t be trusted with such stuff, but you’d again be dismissing the core reliability of the people we elected. And you’d also have to contend with the fact that some politicians—those who get into cabinet or the MPs who reviewed documents related to the treatment of Afghan detainees—are already entrusted with classified information.)

I take the general argument seriously, but I think it’s a matter of execution, rather than principle. It should be possible to have an independent committee of parliamentarians that is able to review classified information and uses its authority to improve transparency and accountability in regards to the actions and policies of our national security agencies.

The suggestion that our politicians are unfit for such an assignment is dispiriting. That that would be suggested by one of our politicians borders on parody. Is it that the public can’t be trusted to elect suitable people? Or is that suitable people are unwilling to seek office? Or is that the very nature of politics renders the people we elect unfit for the serious business of national security?

Of course, dismissing politics is a common tactic of the politician. In some cases it might even be creditable—particularly if it’s more of an argument about the current state of Parliament and is attached to a concrete proposal for reform. But for the most part it is likely only a lazy and cynical ploy that plays to the lazy cynicism we are encouraged to have about professional politics.

Beyond laziness and cynicism, an argument here that Parliament can’t be entrusted with this serious duty is simply defeatist and a rather disappointing statement on the institution that was cheered on Oct. 23.

Mind you, even if you can mount a reasonable argument against a parliamentary committee, you’d still have to explain why SIRC—the “independent, expert, third-party advice” that MacKay apparently values—shouldn’t be better funded and further empowered.