NSICOP reports

But no one is home

The annual report from the National Security and intelligence Committee of Parliamentarians was tabled in Parliament on July 19.

https://www.nsicop-cpsnr.ca/reports/rp-2023-07-19-ar-2022/intro-en.html

There was no one home to receive it. MPs and Senators are enjoying their summer recess and will not return to the Hill again until the end of September. 

A stealth release of this important committee’s report is in no one’s interest, not least given the attention that has been paid to NSICOP’s work in the context of past reviews of foreign interference, where its recommendations were largely ignored, and its current study of the problem, undertaken at the request of the government.

The media, which is not on summer break, also missed the report, the sole exception being a piece by CTV news. It focused on the special report on Global Affairs Canada’s intelligence governance, But that report is not new—it was actually released last Fall!  Ooops. Other major media outlooks, some of which have misconstrued the work of NSICOP in the past, paid no heed. Hello—Globe and Mail.

This column is a modest effort to fill the gap created by media indifference and the absence of any robust public communications strategy by NSICOP.

NSICOP was created by legislation passed in 2017. Putting in place a security-cleared committee of parliamentarians able to scrutinize the work of the security and intelligence agencies was a campaign promise made by the Liberals during the 2015 election, advanced as a measure to ensure enhanced accountability following passage of new Conservative anti-terrorism legislation in 2015 and to bring Canadian review practices in line with those of our major allies. NSICOP was substantially modeled on a counterpart committee in the UK, the Intelligence and Security Committee, in existence since 1994.

The idea was opposed by the Conservative party at the time and their members voted against the legislation. It is fair to say the committee has never been embraced enthusiastically by Conservatives. A previous leader, Erin O’Toole, went so far as to temporarily withdraw appointed Conservative members from the committee.  O’Toole, who has now left Parliament, was the Conservative critic for Public Safety at the time of the tabling of NSICOP legislation and never stepped back from his opposition to the creation of the Committee.

The Committee has survived its first five years of existence. A question remains about whether it will survive the next five years. Much of its legitimacy may hang on how it performs its task in reviewing the government’s response to Chinese state interference in Canada’s democratic practices.  A substantive, hard-hitting and, above all, timely report may go far to establish NSICOP as a key accountability mechanism.  Producing such a report may challenge the essential non-partisan nature of the Committee.

This is for the future. The Committee’s 2022 Annual report looks back.

The first thing to note about the NSICOP Annual report for 2022 is that it is much, much shorter than its predecessors. The substance is contained in a mere six pages. By comparison, the previous four annual reports (English versions) weighed in as follows:

2018 = 121 pages

2019 = 182 pages

2020 = 47 pages

2021 = 23 pages

You can see a trend line here.  Short is good and there may be a deliberate intention at play to try to make the annual report more readable and to find a wider audience for it. This operates alongside a process whereby NSICOP is now separately generating and tabling in Parliament its specific activity reports as “special reports.” But too short is not good and deprives readers of a chance to have a full overview of the Committee’s work.

One welcome and relatively new feature of the annual report is the Committee’s “write to release,” approach, which removes any necessity of redactions of classified material following initial submission to the Prime Minister. The 2022 annual report follows on the previous 2021 annual report in its absence of redactions. What you see is what you get.

In his cover letter to the Annual report, the Chair, MP David McGuinty, draws attention to two issues he believes need to be resolved to further the Committee’s work. One is to ensure that Government responds formally to all the recommendations made in Committee reports (this process has begun but is far from complete). Second is to note that impediments remain to the Committee’s access to classified records, involving both unwarranted departmental resistance on occasion and an overbroad use of the designation  of “Cabinet confidences” to restrict access.  

These issues are elaborated on in the text of the 2022 annual report.

The most disappointing element is the report’s brief and anodyne recounting of its five year history. Why do I find this anodyne? It skips over all the challenges that the Committee has faced from its inception, particularly challenges to its legitimacy by opposition parties and the media.  It has nothing to say about membership churn. It does not speak to the Committee’s success in maintaining a non-partisan approach to sensitive intelligence and national security issues, on building trust with departments and agencies in the security and intelligence system, and on its own measures for safeguarding access to highly classified intelligence material. Importantly, the look-back does not address the problematic question of the Committee’s public standing and recognition.  More honest baring of its soul was needed.

The 2022 annual report does raise concerns about road blocks in terms of legitimate access to classified records.  And in a later Annex it delivers a shot across the bows of the executive branch, indicating that the government has failed to respond to many of the previous reviews conducted by the Committee.  This includes, notably, recommendations made on strengthening the role of the National Security and Intelligence Adviser, improving the system of intelligence priorities and requirements, building a better system to track progress on diversity and inclusion in the Canadian security and intelligence system, and the provision of a legislative basis for the conduct of defence intelligence activities (once promised by the Government in a Ministerial mandate letter, since apparently forgotten).  All important matters. There are signs that the Government is playing catch up by providing formal responses to recommendations made in more recent reports, including on the cyber defence framework, governance of GAC intelligence and, stimulated by media reporting, on foreign interference. But this partial track record suggests that a formal requirement for the Government to respond in a timely manner to all NSICOP report recommendations, needs to be built into legislation.

The annual report also offers a recap of its review of Global Affairs Canada’s governance of intelligence and security, which it found very wanting. That “Special Report” was tabled in Parliament in November 2022, so this is effectively old news and the Government has promised changes. We shall see on that one, as it requires a significant degree of cultural change within the GAC establishment to ensure that intelligence is truly seen as a core business line.

On the NSICOP special report on GAC see my earlier substack column

It would have been valuable to have the committee’s reflections on membership churn. NSICOP has had a lot of turnover of its members during the five years of its existence.  That is not helpful, as there is a lot of learning involved for most members, the vast majority of whom would have virtually no knowledge of national security and intelligence issues prior to their appointments.  As currently constituted only two members remain from its initial composition: the Chair, David McGuinty, who was appointed by the PM and has served a Chair since 2017; and Senator Francis Lankin, who had prior experience as a member of the independent Security Intelligence Review Committee (now superseded by the National Security and Intelligence Review Agency). With regard to the current roster of members, two Senators resigned in the Fall of 2022 (Dennis Dawson and Vern White). One new member from the Senate, Pat Duncan (former Premier of the Yukon) was appointed in June 2023, but the committee remains short one senator on its roster. That vacancy should be filled as soon as possible. In addition to Senator Duncan, three of the seven MPs currently serving on the Committee are recent appointments (Alex Ruff, Patrician Lattanzio and James Maloney). So in effect, nearly half of the committee members are new.

The NSICOP annual report also keeps its cards close to its chest in terms of what it would like to recommend by way of legislative changes, once the delayed review of its statute gets underway. Why it should do so is unclear to me. NSICOP needs to seed the conversation early.

So, in the absence of strong pronouncements from NSICOP, here is my list of

WHAT NEEDS TO BE DONE:

The Government needs to get cracking on launching a review of the NSICOP legislation, which is already one year late. It must stand apart, and not be folded into a larger review of the separate legislation, Bill C-59, that created other elements of the new review system (NSIRA and the Intelligence Commissioner). The Committee’s confidence that this review will begin in 2023 rests on thin air. It needs advocacy.

The Government needs to take NSICOP seriously by responding formally to all its recommendations within a reasonable time frame.

Parliament also needs to take seriously its creation. The relevant Parliamentary committees of the House and Senate need to devote regular calendar time to a study of the reporting from NSICOP. The Conservative Party needs to get over its reservations about NSICOP and support its use.

NSICOP needs more continuity of membership, to ensure that hard won knowledge is not lost as soon as it is gained. It needs more members with previous Cabinet experience, and a strong contingent from the ranks of the Senate.

NSICOP needs more engine room resources, to ensure it can deliver timely and substantive reports. This would require additional experienced staff in the NSICOP secretariat. (The current secretariat is very small—numbering c. 11 staff in total).

NSICOP needs to position itself more forcefully in the public eye.  That requires a communication strategy around the release of its reports and more public engagement by the Committee

The Committee needs to consider its annual report as its major opportunity to inform and educate Parliament and the Canadian public. The vanishing act that is the current annual report needs to be halted and reversed.

NSICOP needs to adopt a forceful name and shame approach to all efforts that might block its legitimate access to classified records. It should have the support of the Government in resolving quickly any such roadblocks and should highlight its engagement with the PCO on such issues.

NSICOP should establish suggested public timelines for its reports, including the delayed report on the federal policing mandate of the RCMP, the current report on lawful access and encryption, and the review of Chinese election interference.

NSICOP should generate a public set of recommendations for needed legislative reforms, not tied to a Parliamentary review process. Doing so, might actually speed things up.

Whatever allowed for the leak of the classified version of the Committee’s 2019 report on foreign interference (the first leak of its kind in the Committee’s five-year history) to Global News should be investigated and resolved so that future leaks are avoided.

Oh, and it would be useful if the media properly covered NSICOP reporting.