Last week, retired judge Robert Decary dropped a bombshell as he ended his stint as watchdog to CSEC, Canada’s electronic surveillance agency. In his final report to Parliament, Decary warned that he was unable to determine whether or not Communications Security Establishment Canada was breaking the law by spying on Canadian citizens.
Here’s what Decary wrote:
“A small number of records suggested the possibility that some activities may have been directed at Canadians, contrary to law. A number of CSEC records relating to these activities were unclear or incomplete. After in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law.”
After a justifiably concerned response in the media, CSEC responded with a written denial:
“The commissioner’s statement about a lack of records is a reference to a single review of a small number of records gathered in the early 2000s, in relation to activities directed at a remote foreign location. This conclusion does not indicate that CSEC has acted unlawfully. It indicates that certain material upon which the commissioner would have relied for his assessment was incomplete or not available for a number of reasons.”
No big deal, right? It’s not as though CSEC was caught spying on Canadians, it’s just that records that would have proven otherwise are missing. It’s not like a lot of records are missing. Just a few! Why are they missing? Oh, “for a number of reasons,” probably too boring or technical to get into. Anyhow, they relate to activities directed at some foreign nation. Which one? Don’t worry, it’s really remote.
Feeling any calmer?
I hope not. CSEC’s defence doesn’t pass the smell test. It has tried to paint itself the victim of media hype, of under-informed reporters overreacting to a minor detail in an otherwise stellar report card. Yet the missing documentation that would have exonerated them of wrongdoing was not a footnote in Decary’s 46-page document, it was the “#1 highlight.” The very role of the CSE commisioner is to provide “independent review of CSEC’s activities to ensure compliance with the law and the protection of privacy of Canadians.” Judge Decary made sure Parliament knew he could not offer them that assurance.
If CSEC wants to clear its name, it could provide the missing information or explain its absence. The fact that it hasn’t done so, or even given us details about just what it is we’re not supposed to worry about, is as much a cause for suspicion as Decary’s report.
Perhaps CSEC hopes we don’t know enough about this to make a big deal out of it. If so, they may be right. The story has already faded from headlines. Compare it to continued revelations on the NSA’s domestic spying in the U.S., a narrative that continues to unspool. Of course, that story has Edward Snowden, a whistleblower who provided the media with a cabinet of smoking guns.
Snowden was a rogue operative, a lone NSA contractor whose conscience compelled him to speak out on the illegal and immoral things he knew were being done to his fellow citizens. He did so at great personal cost.
If anything similar were happening here, I hope we’d be lucky enough to count on someone like him.
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