In a quasi-legal environment such as created in a public inquiry, we import an adversarial process led by lawyers who, in representing parties with standing, have a right to cross-examination of witnesses subject to the Commissioner’s approval. Lawyers love this stuff.
So that is what we got in the afternoon of Day Four.
Lawyers for the parties pressed on the question of how to ensure the public interest in knowing the truth about foreign interference attempts can be satisfied. It’s a good question, of course. It is perfectly understandable if counsel for the parties want to tilt the balance between protecting secrets and serving the public need for information, in favour of the public interest.
One counsel drew on some statements contained in the Johnston report about the necessity of having access to a full range of classified intelligence in order to understand foreign interference. The implication of the question was that the public should be in the same position as David Johnston in having full access, which is, of course, a nonsense.
Counsel for the Media Coalition took us back to the Arar commission report of 2006 and the very justifiable remarks that Justice O’Connor made at the time about the problems that had been created for his work by government over-claiming of national security confidentiality. The response of the panelists, especially CSIS Director David Vigneault, was that, essentially, times have changed, national security transparency is considered more important twenty years on, and that levels of transparency achieved through different forms of public reporting is much higher. The real answer may be that the proof will be in the pudding.
Counsel for the Ukrainian-Canadian Congress pressed the panelists to ensure there is a commitment on the part of government officials to do whatever it takes to deliver records to the Commission and engage in a declassification process as required. Panelists delivered a yes. But both the CSIS Director and Dan Rogers stressed the importance of using such tools as summaries of classified intelligence, delivered by the intelligence community and a “write to release” policy (basically finding a way to write publicly using classified intelligence without divulging it directly) that could be fashioned by the Commission itself, as key tools. There are different trust factors involved. With summaries, the trust has to be placed in the intelligence community to produce an accurate document. With write to release we place our trust in Commission staff. Both are a black box to a degree.
On these points it would have been valuable for the Commission to have heard from the two review bodies, NSIRA and NSICOP, both of whom practice write to release, while wrestling with declassification issues. The approach of NSICIOP in particular, with a little more experience under its belt than NSIRA, and also able to draw from the practice of its UK sister body, the Intelligence and Security Parliamentary Committee (ISC), would have been helpful to explore.
How satisfactory reliance on summaries and write to release will be, will only be known in time (and time isn’t a friend of this Commission).
It certainly didn’t seem to satisfy many when it came to the Johnston report.
*Dear Readers: I plan to provide extensive coverage of the Foreign Interference (FI) Commission, now that it has got rolling. Because the Centre for International Governance Innovation, where I am a senior fellow, has been granted standing for the second, “Policy,” phase of the Inquiry I want to make clear that the views offered in this substack newsletter are mine alone and do not represent any official policy of CIGI.
I am increasingly coming to the conclusion that this public inquiry - conceived in a need to appease some politicians and the press – will neither serve that purpose, nor advance the public interest.
It will merely kick important issues down the road (as the government surely intended); and may not even meet the wholly artificial time limit prescribed for it – thus, in itself, providing a target for blame and an excuse for inaction. Especially if there is a change of government, or a change in leadership or direction within in the current one.
Now no doubt it is important for an inquiry like this one, to be able to lawfully compel information about how security mechanisms are working (or not); and I think it would have been better if it had included, among its members, persons who already know the organizational terrain, - as well as the means by which information can be mishandled. Including where, and how, the bodies might be buried. Or how to assess what was intentionally left unsaid.
Johnson lacked some of those tools, and the current enquiry has more of them. But it has been deprived of time and in-house expertise and thus must waste time acquiring it - while operating in a forum that is entangled by legal rules, which are all subject to judicial review by the Courts.
For example: what if the Judge thinks, and rules, that certain information should be forthcoming and the government demurs? What does she do? And how long will it take? What is the impact on the timetable? Etc.
Similarly, do we have any confidence that the process will not be abused by the politicians who are a party to it – when at least one of them has an incentive to find mismanagement or misjudgment (or at least things that can be spun that way)? Just look at the current politicized fuss about the Emergencies Act: where (horrors) two judges, in two different kinds of proceeding, took different views on what is “reasonable”. And which is said, by some, to be a “rebuke”.
This is both tiresome and detracts from the remedial and prophylactic purpose that these proceedings: POEC being final and the Federal trial decision perhaps on its way to appeal to the SCC.
That said, insofar as the judicial enquiry is concerned, I do not see any way of avoiding a fair amount of tedium and frustration for the people who have actually tilled these fields.
Because it seems to me that this enquiry is like a horse on a steeple chase course that has been constructed over farmers’ fields.
There are visible legal barriers that will have to be navigated and overcome; and you can do some of that in advance, with good faith cooperation among the parties.
But there may be lots of gopher holes too.
I don’t understand what is being held back from the public that they should know?