One of the most prominent pieces of evidence that attracted attention during the closing days of last week’s public hearings on foreign interference was a letter sent to the Foreign Interference Commission by Government lawyers from the Department of Justice regarding declassification of intelligence reports.
We can now read the letter on the Commission web site. [i]
To say that the letter caused disquiet among many of the participants in the Commission hearings would be a gross understatement. Yet there was little that should have taken anyone familiar with issues of national security confidentiality claims (NSC claims) by surprise. Public users of the Access to Information Act requesting national security-related documents would find this all too familiar (except the part where the Commission got a rapid response).
To begin at the beginning, the DOJ letter was in response to a clever experiment by Commission counsel in which they submitted, as a pilot project, 13 documents from their store of classified records handed over to the Commission, and asked the Government to go through a declassification exercise to determine how much of the contents could be made public. In the case of CSIS records, which constitute the bulk of the documents requested, the answer was—almost nothing. You can see the redacted documents on the Commission website.[ii]
We don’t know how Commission counsel went about selecting this particular set of records for the declassification and release experiment. It would appear that they mostly don’t track closely to the CSIS records leaked to the Globe and Mail, which have date ranges from November 2021 to Fall 2022. Many of the documents in the Commission package have their dates redacted (are the dates of a document where the text is completely redacted a secret also?) so we can’t be sure. But where dates are allowed to slip through, they mostly reference documents from 2020 through mid-2021.
The one crystal clear exception is a CSIS Intelligence Assessments Branch report, entitled “PRC Foreign Interference in Canada: A Critical National Security Threat.” It is dated July 20, 2021, just prior to the calling of the 2021 federal election. This is Exhibit CAN 00581 in the Commission’s data base, published on the web. On May 1, 2023 the Globe team of Robert Fife and Steve Chase published an article with the headline “China Views Canada as a ‘high priority’ for interference: CSIS Report.” The Globe story explicitly references an Intelligence Assessment branch report of July 20, 2021, (bingo) and some of its quotes can be found in the unredacted text released to the Commission. What doesn’t turn up in the unredacted text are references to Chinese security service efforts to target Canadian federal MPs. The Globe identified the particular MP targeted as Michael Chong and also got hold of the name of the Chinese diplomat who was engaged on this operation—Zhao Wei. Nor does the unreacted text contain any details, as reported by the Globe, of Chinese attempts to build inroads with members of the Conservative party. According to the Globe the CSIS report stated that the Chinese influence operation was “likely…an effort to engage with and steer away individuals from what the mission perceives to be anti-PRC portions of the Conservative Party’s [election] platform.”
It is also possible that another Commission exhibit, CAN 005836, a CSIS Intelligence Report, might be the document leaked to the Globe and reported on in a Globe story of February 17, 2023, with the headline, “CSIS Documents reveal: Chinese strategy to influence Canada’s 2021 election.” But the only bit of unreacted text in that document made available to the public is the synopsis, which reads:
“Political interference tactics employed by individuals believed to be operating on behalf of the PRC, as of November 2021.”
So whatever was revealed to the two Globe reporters in the case of this document has not been revealed to the public.
A six-page letter from DOJ provides some details about the necessity for the extensive redactions that were applied, but some of the ‘show and tell’ material remains classified and will be seen only by the Commission staff.
The letter references definitions of “potentially injurious information” and “sensitive information” drawn from section 38 of the Canada Evidence Act:
potentially injurious information means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security. (renseignements potentiellement préjudiciables)
sensitive information means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard. (renseignements sensibles)
The phrase “Taking measures to safeguard” is taken from section 8 of the Security of Information Act. For full reference that reads as follows:
special operational information means information that the Government of Canada is taking measures to safeguard that reveals, or from which may be inferred,
(a) the identity of a person, agency, group, body or entity that was, is or is intended to be, has been approached to be, or has offered or agreed to be, a confidential source of information, intelligence or assistance to the Government of Canada;
(b) the nature or content of plans of the Government of Canada for military operations in respect of a potential, imminent or present armed conflict;
(c) the means that the Government of Canada used, uses or intends to use, or is capable of using, to covertly collect or obtain, or to decipher, assess, analyse, process, handle, report, communicate or otherwise deal with information or intelligence, including any vulnerabilities or limitations of those means;
(d) whether a place, person, agency, group, body or entity was, is or is intended to be the object of a covert investigation, or a covert collection of information or intelligence, by the Government of Canada;
(e) the identity of any person who is, has been or is intended to be covertly engaged in an information- or intelligence-collection activity or program of the Government of Canada that is covert in nature;
(f) the means that the Government of Canada used, uses or intends to use, or is capable of using, to protect or exploit any information or intelligence referred to in any of paragraphs (a) to (e), including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means; or
(g) information or intelligence similar in nature to information or intelligence referred to in any of paragraphs (a) to (f) that is in relation to, or received from, a foreign entity or terrorist group. (renseignements opérationnels spéciaux)
There—if you have read this far you have been “read in” to the relevant legislation. (If you have skipped-no matter).
The legal protections for classified information are, well, sweeping. The Government intends to use them and has made its position clear. It would bring down the hammer of its powers under s38 of the Canada Evidence Act to deny public release “were the Inquiry to insist on…public disclosure” (of the sample documents).
That’s putting your cards on the table.
The DOJ letter also indicated that the government had undertaken an expedited but very labour- intensive process to review for the Commission the sample documents for possible disclosure. In fact it spent “in excess” of 200 person hours to review the 13 documents (or roughly 15 person hours per document).
Are government reviewers slow readers, one wonders? Nah.
The problem is, as the DOJ letter states, government reviewers have to be concerned about the “collateral consequences” of public release, including with respect to other investigations and proceedings, including court proceedings. The linked problem is that intelligence reports rely on raw intelligence, not contained in the report directly, but which could be surfaced if the report were to be published. The DOJ letter stated—and this phrase really caught the eye of Commission participants, that: “it is clear that redactions of documents on a large scale will not be a productive way forward within the timeframe allotted [to the Commission for its reporting].”
This concern about collateral consequences is something the Commission might want to probe a little more deeply, especially in the weighing of the need for national security confidentiality versus public transparency.
The DOJ letter urged the Commission to have a dialogue as soon as possible.
Here comes some modest silver linings.
In the eyes of the Government, the dialogue could cover restricting the Commission’s desire for redacted intelligence documents that could be published to a manageable (e.g. “limited”) number of documents; publishing summaries, again of a “limited number of documents,” or producing public summaries of closed door (in camera hearings).
Limited Inc! How the Commission will ultimately respond to that remains to be seen. How public expectations about transparency, likely very unrealistic, will be managed will be a tricky task for the Commission.
I recall David Johnston saying that he had seen a “very large lake” of classified intelligence records. The public will likely see a very small pool, maybe a puddle, something Mr. Johnston predicted as a problem with a judicial inquiry.
Will anything good come out of this process of head-butting between the Commission and the Government over secrets? Here is what I would hope for—a better understanding by the public of why classified intelligence needs to be protected and, away from the jaws of a public inquiry, a more nuanced approach in future by the government (any government) to national security transparency and the protection of secrets, redefined more strictly. As one CIA officer put it, the approach should be to ‘build higher walls around fewer secrets.’ Plus, we need a real effort to engage in declassification of intelligence and national security records that have lost their sensitivity over time (and that can happen very quickly—no secret is eternal).
PS. Our allies do it routinely.
*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] Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, Letter “Re: National Security Confidentiality Review of 13 Selected Documents,” https://foreigninterferencecommission.ca/fileadmin/commission_ingerence_etrangere/Documents/Presentations/Preuves/CAN.DOC.000001.pdf
[ii] Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, see under “Exhibits,” https://foreigninterferencecommission.ca/documents/exhibits-and-presentations
As a Canadian citizen, I expect the FI to tell me: 1. WHO is interfering?
2. WHY are they interfering?
3. WHAT are they doing?
4. HOW are you going to prevent it?
If none of those questions are answered in the FI, there's no reason to have the inquiry because those are very basic questions the inquiry should, at the very least, tell every Canadian citizen in very accessible language. None of the answers to these questions should be held in-camera, they should be 100% public hearings, hopefully being recorded.
So, in practical terms, then, this enquiry will ultimately turn out to be about whether, or how much, Canadians (including naughty newsmen), are permitted to know about the workings of the security apparatus.
And not necessarily about: whether that apparatus is demonstrably (i.e. having regard to the evidence) working well, or badly; whether additional “tools” are needed to detect, deter or negate foreign interference; and (dare I suggest it?) whether there is a proper working relationship between its investigative/analytical components and their political/ministerial masters – including, in particular, the competence and good faith of this last group.
It seems to me that we would be better off trusting the existing internal review mechanisms; and if there is a problem with trusting the current government, then go ahead and change it.
And I would say the same thing about FOI, to which you referred the other day - where the same lack of trust in government is evident.