On Secrecy

Or watching chickens come home to roost

The late U.S. Senator, Daniel Moynihan, once wrote a wonderful study of government secrecy, entitled simply, Secrecy: The American Experience (Yale University Press, 1998.)  Here is a quote from an opening passage in the book:

“At times, in the name of national security, secrecy has put that very security in harm’s way.”

Moynihan went on to ask:

“How did secrecy and bureaucracy become so entwined—a vast secrecy system almost wholly hidden from view? What has it cost (no less than what it has achieved).”

These very questions are at the heart of the current controversy over Chinese election interference in Canada, and the government’s response. Secrecy has been used as an argument against holding some kind of public inquiry; equally it has been used as an argument for the necessity of a public inquiry. There are politically charged accusations of a government cover-up; and equally charged accusations of irresponsible political behaviour and invective that ignores the necessity of protecting secrets. The media, or those outlets such as the Globe and Mail, and Global News, that have been the recipients of leaked information, insist on their right to publish summaries or quotable excerpts, while themselves confronting a secrecy dilemma, based on a desire not to reveal the identity of confidential sources and hence not publish the classified documents that have come to their attention.  The public has not seen any of the leaked documents, but is left in a position of having to trust how the media conveys the information. Senior government officials have warned against thinking that any single piece of intelligence is necessarily true, or can be corroborated, or conveys anything like the full picture.

So we have a three-ring circus (Government, opposition politicians, media), with Canadians as bemused onlookers understandably not sure what to make of it all and the alleged secrets at the core of the story and, more fundamentally still, what constitutes a secret.

I want to see if I can cast some light on the secrecy problem as it impacts on responses to the leaks of classified information to the media about Chinese interference strategies.

Like all Western democracies that operate intelligence systems, Canada suffers from a problem of over-classification. Unlike the United States, we just don’t pay too much attention to it or spend time thinking about where the boundaries lie between legitimate secrets and non-secrets. We don’t have government regulations aimed at reducing over-classification or any major studies of the problem. It is, as Daniel Moynihan stated, entwined with bureaucracy, but to a unique degree in Canada.

Following a 2016 public consultation with Canadians on national security, the Liberal government recognised it had a problem on its hands in terms of a Canadian public reluctance to appreciate or understand the need for security powers to tackle new or persistent national security threats. The government proceeded to introduce what it called a “national security transparency commitment,” alongside the tabling of national security legislation (Bill C-59) in 2017. The transparency commitment was bold, but it remained largely words, shorn of real action.  On the other hand, the legislation to create new powers for the intelligence system was passed.

For the national security transparency commitment, see: https://www.canada.ca/en/services/defence/nationalsecurity/national-security-transparency-commitment.html

In addition to its rhetorical commitment to national security transparency, the government looked to reporting by two newly established independent review bodies to enhance public understanding of national security issues and draw down the walls of secrecy.  Both review bodies, the National Security and Intelligence Committee of Parliamentarians (NSICOP), created in 2017, and the National Security and Intelligence Review Agency (NSIRA), created in 2019, are still start-ups. They have done some excellent work but suffer from an absence of public recognition and legitimacy. If only 3% of Canadians can identify the Communications Security Establishment, one of our premier intelligence agencies, the proportion that can identify either review body is probably smaller still.  What good is drawing down the walls of secrecy if no-one is paying attention?

For one poll result regarding Canadians’ knowledge of CSE, see:

https://globalnews.ca/news/3849709/canada-cyberspy-agency-canadians/

The National Security and Intelligence Committee of Parliamentarians has faced a legitimacy question from the outset, particularly from opposition parties and inaccurate media reporting. It was opposed from the outset by the Conservative party, who for a time even withdrew its members from the Committee. Conservatives have consistently attacked it as an overly secretive entity that is a tool of the executive branch because the Prime Minister appoints the chair and because the Committee must submit its reports to the Prime Minister to allow for redactions of sensitive information before its reports are tabled in Parliament.

Secrecy is the committee’s bugbear. Its members are sworn to secrecy, have to acquire top secret security clearances, and submit to a loyalty oath. Their meetings are held in secret in a secure facility (a SCIF). They are not allowed to divulge anything they have learned in the course of the committee’s deliberations and are stripped of parliamentary immunity should they  reveal classified information.

NSICOP’s legislative statute (Bill C-22):

https://laws-lois.justice.gc.ca/eng/acts/N-16.6/FullText.html

NSICIOP has never found a way to surmount its secrecy problem and establish its legitimacy among opposition politicians and the public.  This, despite the fact that it has produced many excellent reports with findings and recommendations that have been tabled (with redactions of course) in Parliament.

One of those reports was a pioneering study of foreign interference (published in 2020). In making recommendations on enhancing Canada’s capacity to deal with the rising threat of foreign interference, it essentially said that the secrecy problem was one that government would have to overcome, particularly through a greater willingness on the part of political leaders and senior officials to educate Canadians about the threat of foreign interference and about the policies that Canada was adopting to meet the challenge. The Committee’s recommendation for a foreign interference strategy which would advance the public understanding was not taken up by the Government. Nor was action taken on another recommendation, that the federal government work more closely with other levels of government—provinces, territories and municipalities on shared approaches to foreign interference, which would require the sharing of classified information.

https://www.nsicop-cpsnr.ca/reports/rp-2020-03-12-ar/annual_report_2019_public_en.pdf

The lack of public credibility, owing to review body secrecy, has now come to haunt the government and its new review entities, in the midst of the allegations of Chinese election interference. In his press conference on the late afternoon of March 6, The Prime Minister stated that he wanted the review bodies, as a matter of urgency, to investigate aspects of Chinese election interference. He also said he knew that Canadians would not be fully satisfied by this recourse. That’s a wicked problem. (See my previous substack column, “The dam breaks v2”)

Whatever Canadians may think, or even know about the review bodies, the Prime Minister appreciated that asking for reports from the review bodies was not going to satisfy opposition party leaders—and it hasn’t, in spades. They are still gunning for a full and independent public inquiry and ratcheting up the political rhetoric.

The Conservative leader, Pierre Poilievre,  released a statement on March 7, entitled “Liberal Cover-Up of Foreign Interference Continues,”  that denounced NSICOP, calling it a “secret committee, with secret hearings, secret evidence and secret conclusions—all controlled by the Prime Minister.”

https://www.conservative.ca/liberal-cover-up-of-foreign-interference-continues/

Let’s fact check.  Only two of these five statements is accurate—20% score on the truth meter.  NSICOP is not a secret committee, in any literal sense of the word. It has a website, its members, drawn from both the House of Commons and Senate are publicly identified, its reports are published alongside statements made by the Chair. It does hold secret hearings, because it does hear secret evidence. You can’t hold public hearings to hear secret evidence and there is no point in having NSICOP as a special committee of Parliamentarians do what standing committees do, which is to hear unclassified evidence in public. Duh. It does not reach secret “conclusions.” Its conclusions are published in its annual reports tabled in Parliament, alongside its recommendations to the Government. One of the problems with its existing legislation is that the government is not obliged to respond to its recommendations, and often doesn’t, none of which advances the Committee’s credibility or profile with Canadians.

NSICOP isn’t “controlled” by the Prime Minister. I am sure its Conservative, NDP and Bloc members would not subscribe to this view, and the governing Liberals do not hold a majority on the committee (in any case it doesn’t hold votes). The only “control” the Prime Minister exercises is not really his—it is a power (and responsibility) to ensure that in the NSICOP reports tabled in Parliament any information that is deemed “special operational information” and would be injurious to international relations, national security or the defence of Canada is redacted. I’ll come back to this standard later. The redaction exercise is actually conducted by the Department of Justice in consultation with the Privy Council Office. Sorry, Pierre, another Pinocchio moment.

In a more mature political system with greater ‘cultural’ awareness of the significance of national security and intelligence, NSICOP would be able to perform its tasks and enjoy a modicum of political and public legitimacy, in line with the committee on which it was modelled, the UK Intelligence and Security Committee.  In Canada, by contrast, it is mocked and misread for political gain or journalistic sensationalism. It suffers from both an organic and imposed secrecy problem. The organic component derives from the fact that the very rationale for its existence is its ability, with security strings attached, to peer behind the official curtain of secrecy and receive classified documents and briefings. The imposed dimension of its secrecy problem is that it is operating in an environment in which the government provides too little transparency around national security issues and in which the public understands little and suffers from a form of national security illiteracy, which is hardly NSICOP’s fault.

Politicians pile on. Secrecy involves hiding the truth; it involves cover-ups. To quote Mr. Poilievre again from his March 7 statement on a Liberal cover-up:

“Enough is enough. Justin Trudeau cannot continue to hide the truth from Canadians, and we won’t let him bury the truth either.”

The Trudeau government has been badly battered by the cover-up charge and now seeks some way, very late in the game, to address it.  As I wrote in an earlier column I think its new recipe, announced on March 6, for three separate reviews, is a disaster.

But the root cause of the problem the government now faces is secrecy. Not the necessary secrecy processes of review bodies, not the protection of legitimate secrets, but secrecy as the default position when a government does too little to inform the public about the nature of threats to national security and the response policies it adopts.

The secrecy processes of review bodies that have access to classified intelligence are eminently defensible and I won’t spend any more time on this here.

But what about legitimate secrets? Canadians understandably are puzzled by the distinction between what might be a legitimate secret and what might be wrongly labelled a secret for all kinds of innocuous (Moynihan = bureaucratic) or more nefarious (cover-up, saving face from embarrassment!) reasons.

Let’s start with this recognition. There are real, legitimate secrets, the exposure of which could cause real harms to individuals and the national interest. These classes of secrets are routinely shielded from public view, and indeed often shielded in court proceedings and public or judicial inquiries.

There are three such classes of legitimate secrets:

Information that reveals the “holy grail” of intelligence practices—its sources and methods.

Information that flows from investigations targeting Canadian “persons,” as the legal term has it (individuals, groups, private sector companies), where such “persons” have rights to privacy, civil liberties protections, business confidentiality, and due process.

Information that is provided to Canada by intelligence partners with caveats that prohibit sharing and public disclosure (the so-called ‘third party rule’).

To these classes can be added a fourth category, with more fuzzy boundaries and certainly capable of elastic misuse—information provided to Ministers and the Cabinet that impacts on Cabinet decision making—what are called “Cabinet confidences.” The idea here is a constitutional one, to protect the sanctity of decision-making within Cabinet as government policies are debated and decided on, prior to their public announcement.

All of these categories come into play in response to naïve and politically inspired demands for tell-all “reveals.” Sources and methods—the nature of the leaks to the media suggest a capacity to intercept and read confidential Chinese communications from Beijing to its consulates in Canada and beyond, an intelligence capacity about which any sane government would go to great lengths to protect. Targets of investigations—the details of any CSIS and RCMP investigations into persons suspected of being “enablers” of foreign interference operations.  To open these up to public scrutiny would be deeply undemocratic and contrary to the law. Third party intelligence—we can’t know for sure but given how deeply entwined Canada’s intelligence  system is with its Five Eyes partners (US, UK, Australia, New Zealand)  and the extent to which the problem of foreign interference from China and Russia, among other states, is a shared problem, we can only guess that it makes its appearance in the mix of available intelligence on the threat picture.  Any public airing of allied secrets would be a potentially grave blow to Canada’s standing as a worthwhile ally. Cabinet confidences—tell us what exactly the Prime Minister knew and when, etc. The principle of protecting Cabinet confidences might be good in theory but has to be adapted to practical realities. It is certainly open to the Prime Minister and his Cabinet colleagues to be more transparent about such “confidences” with little harm to the principle.

We now come to the crux of the matter. Not all secrets are legitimate secrets. Not all intelligence is a matter of secrecy. Not all policy inputs need be shrouded in secrecy.   The rule of thumb should, be, as one CIA official stated, “building higher walls around fewer secrets.” Or, protect legitimate secrets and pull back the curtain on the rest.

This distinction requires judgement and the exercise of legitimate authority. It is up to the government to lead the way. The government’s hasn’t. Why not?

There is no easy answer. Secrecy is historically embedded in the Canadian national security system, perhaps stretching back as far as the terrible shock of the Gouzenko spy revelations in 1945. Secrecy is an important attribute of Canada’s standing as an intelligence ally. Secrecy, and with it, over-classification, is a bureaucratic reflex. Secrecy is an easy default position when governments (of any political stripe) assume that Canadians simply don’t care or wish to know much about national security matters. Secrecy is a form of risk aversion. Its easier to keep too many secrets than to figure out the appropriate pathways for national security and intelligence transparency. Secrets are something that foreign state adversaries try to steal through conventional and digital espionage. The more we try to protect secrets from espionage the greater the tendency becomes to also keep hidden too many things that are not legitimate secrets. Sometimes this is referred to as the “mosaic effect.”

But how are any of these tendencies rooted in known policies? For an answer, we can turn to the basic legislative statute that governs the protection of government secrets. This is the little known “Security of Information Act,” passed to virtually no attention during the intense debate over Canada’s first omnibus anti-terrorism legislation in 2001. It has sat on the statute books ever since.

A key to understanding the Security of Information Act’s imposition of secrecy is found at section 8, which defines  ‘special operational information,’ as follows:

“special operational information means information that the Government of Canada is taking measures to safeguard…”

That’s pretty sweeping. If we dig further we get this category of special operational information (this is sub-section c):

“the means that the Government used, uses or intends to use, or is capable of using, to covertly collect or obtain, or to decipher, assesses, analyse, process, handle, report, communicate or otherwise deal with information or intelligence, including any vulnerabilities or limitations of those means…”

https://laws-lois.justice.gc.ca/eng/acts/o-5/

Alongside this broad definition we have the related provisions of section 38 of the Canada Evidence Act, which also defines the kind of information that a government may seek to protect, especially in court proceedings and public inquiries. S38 refers to two categories of protected information, as follows:

“Potentially injurious information”-- information that could injure international relations, national defence or national security.

and

“Sensitive information”—information in the possession of the Government of Canada that Canada is taking measures to safeguard, and relates to international relations, national defence or national security.

https://laws-lois.justice.gc.ca/eng/acts/c-5/page-4.html#docCont

The definition of sensitive information aligns, seamlessly, with the SOIA

The SOIA, with all its latitude and imprecision, embodies the secrecy culture and reflex in practice. It governs what public servants, Ministers, and review bodies can and cannot say. It is a perfect foil against transparency, if governments want a foil.

A systematic and sustained program of national security transparency is the only long-term cure to the problem of over-zealous secrecy and public illiteracy with regard to security issues.  Such a program has to be a responsibility of government and it cannot be out-sourced to others.

Over-zealous habits of secrecy erode democracies, probably far more than does Chinese attempts at election interference. Certainly it has bedevilled the Government’s response to intelligence leaks and left it vulnerable to unreal demands. It has generated public consternation and a willingness to believe that in some way or other Canadian elections have been ‘stolen’ (adopting Trumpian language) despite the absence of any evidence to support this.

For the Trudeau Liberals, (secrecy) chickens have come home to roost, as the curious saying goes. (Not so fun fact, Malcolm X used the phrase in reflecting on a climate of hatred which he believed helped explain the assassination of President John F. Kennedy).

We will have to see if the current flurry of multiple independent reviews, with their implied buck passing by government, will go any way towards repairing the damage of secrecy.