The Foreign Interference Inquiry
Some More Advice for Justice Hogue; Or, now you have to deal with India as well?
The terms of reference for the “Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions” (Foreign Interference Inquiry for short) make no explicit mention of India.
https://www.canada.ca/en/democratic-institutions/general/terms-reference.html
It was widely assumed that some attention would be paid to India as part of the inquiry’s mandate to study foreign interference by China, Russia “and other foreign states or non-state actors.” It was the NDP who insisted, as part of the lengthy, backroom, all-party negotiations that crafted the Inquiry’s terms of reference, that the study extend beyond China. But no-one could have imagined the ways in which India has now moved to the centre of the Inquiry’s agenda, following the Prime Minister’s statement on September 18 in the House of Commons regarding allegations of Indian state involvement in the assassination of a Canadian citizen who was a well-known supporter of the diaspora-led independence movement for a Sikh state to be called Khalistan.
The task before Justice Hogue and her legal team, which presumably is still being assembled, was already immense—a complex, broad, and ill-defined subject whose two-part study was fixed within impossibly tight time-lines, largely for spurious political reasons and to satisfy media pressure.
Now, India is front and centre. Expectations have been created. So how to respond?
The first part of the Inquiry is meant to issue a report no later than the end of February, 2024, that will focus on electoral interference in particular. It is clear that Chinese interference will be the main dish in this repeat examination, following directly in the footsteps of David Johnston’s report as special rapporteur. I will be surprised if there are any surprises.
But as soon as that part of the Inquiry wraps up, it will head into much vaster territory to study the issue of national security and intelligence capabilities to “detect, deter and counter any form of foreign interference directly or indirectly targeting Canada’s democratic processes…” This seemingly ‘root-and-branch’ study will have to consider the question of Indian state interference (alongside Russia and China, and possibly others—Iran for example). That report will be due within ten months—by end December 2024.
To wrestle this into a manageable problem set, where might the Hogue Inquiry focus? The starting point is to note that foreign interference is left undefined—is the concern espionage, intellectual property theft, cyber attacks, stealth economic penetration, interference with diaspora communities, disinformation campaigns, or all of the above. Justice Hogue, to cover the waterfront, would have to try to determine what the priority threats are, in order to properly measure response capabilities. That’s not really the job of a judicial inquiry.
To add to the complexity, there are also many foreign interference actors, each with different intentions and capabilities. There will be a hue and cry about China, and now about India, but even these actors would need a sophisticated and differentiated analysis. And it would be wrong to push Russia to the sidelines, simply because of current headlines.
To give due attention to the wide nature of threats and the diversity of actors involved will be, let’s face it, an impossibility for the Inquiry.
The best way forward for the Inquiry, given its limited time span and steep learning curve, would be to focus on some of the key tools available to the national security and intelligence system to deal with foreign interference and engage in fact-finding and advancing recommendations to improve them.
There are three key tools:
Intelligence collection and assessment of foreign interference threats
Threat reduction measures
Outreach
I am doubtful that a judicial inquiry is the best way to plumb the depths of intelligence system capacity for collection and assessment of the foreign interference threat, even though this is squarely in Justice Hogue’s terms of reference. Such an examination requires a systemic review, for which the Hogue Inquiry will have neither the time, nor expertise.
That leaves two other tools, about which I think the Foreign Interference Inquiry could really make a difference.
Threat reduction measures (TRM) have long been in the purview of law enforcement agencies, including the RCMP. But they were added to the CSIS toolbox initially through controversial anti-terrorism legislation passed by the Harper Conservative government in 2015 (Bill C-51).
The Liberals maintained but refined the CSIS scope for threat reduction measures in their own national security legislation passed in 2019 (Bill C-59).
We know little in public about CSIS’s use of TRM, a good reason in itself for investigation by the Hogue inquiry. The CSIS Public annual report for 2022 suggests that the Service has used this power sparingly—in only 16 cases. None involved a requirement for a warrant. Because the power was initially advanced as an anti-terrorism weapon, to disrupt terrorist plots, the Service may still be adapting to an altered threat landscape and may not have fully deployed TRM against other national security threats, including foreign interference. That would be a question to ask and explore, Madam Justice.
CSIS does say, in its annual report for 2022, that it identifies three categories of threat reduction measures, presumably in ascending order of intrusiveness: messaging, leveraging, and interference.
In one of its mandated (and heavily redacted) reviews of TRMs, the National Security and Intelligence Agency (NSIRA) added a little more detail about the meaning of leveraging. According to CSIS, “leveraging involves providing threat information to private companies for them to take action, at their discretion and pursuant to their authorities, to impede a person’s ability to obtain services.” (p. 6)
https://nsira-ossnr.gc.ca/wp-content/uploads/CSIS-TRM-EN-3.pdf
Beyond this descriptor, what these categories might encompass more precisely is, at the moment, guess-work. It shouldn’t be. Whether they are primarily directed, offensively, at perpetrators or defensively, to assist possible victims, is also unknown. The CSIS definition of leveraging suggest a defensive focus on aiding private companies exposed to possible espionage, cyber attacks, or intellectual property theft.
TRM can serve as an important national security tool in countering foreign interference. What we do not know, which would be worthy of examination, is whether there is a gap between potential and use. Is the use case currently considered, too narrow?
Threat reduction measures are closely aligned, in their defensive capacity, with the third important tool for countering foreign interference, namely outreach. Outreach involves, for both the RCMP and CSIS, creating and managing contacts with individuals and groups potentially affected by foreign interference. Outreach has many possible engagement targets, from elected officials at all levels of government, to industry, the financial sector, academia, sensitive research enterprises.
A pie-chart included in the CSIUS annual report for 2022 breaks down engagement by sector, see pp. 32-33. Community groups accounted for only 11% of the total activity.
If there is one common complaint about existing outreach practices, it is that CSIS briefings are too generic in nature. You can see this in action in the online pamphlet developed by CSIS, entitled “Foreign Interference and You.” In the section where it describes foreign interference targeting diaspora communities, it states:
“Hostile foreign actors also target the fabric of Canada’s multicultural society, seeking to influence Canadian communities, including through threats, manipulation and coercion. Some of these communities are vulnerable targets of foreign interference from states seeking to exploit them in various ways to advance the foreign state’s interests, sometimes to the detriment of Canadian values and freedoms.”
This is generality as an art-form, unlikely to advance the cause of outreach.
Given the range of actors to engage through outreach, so much broader than in the older model of counter-terrorism, it may be that CSIS resources are over-stretched. Engagement activities are managed by a small unit at CSIS called Academic Outreach and Stakeholder Engagement (AOSE). So small it, hopefully, may be immune to the current round of federal budget cuts.
There is also the challenge posed by the current limitation of the CSIS Act, which restrict its mandate to providing advice on national security threats to the federal government, something that is desperately in need of change. And then there is the Security of Information Act, which severely restricts CSIS ability to share classified information with targets of foreign interference.
Each engagement sector poses its own unique challenges for CSIS—challenges of understanding and effective diplomacy—whether it be academia, elected officials, the private sector.
But where outreach on foreign interference is both sensitive and hugely important is with diaspora communities. There is a lot of learning involved—trust and respect have to be gained; negative attitudes have to be understood. Some advances have been reported in terms of the Chinese diaspora community’s willingness to engage following action taken against so-called Chinese “police stations.”
No less sensitive, and no less important, will be outreach to the Sikh and Indian diasporas in Canada in the aftermath of the assassination of Hardeep Singh Nijjar, not least given polarised views on the Khalistan movement.
Justice Hogue’s foreign interference inquiry could do valuable work in fact-finding and making recommendations on improving outreach to diaspora communities. It would be important to have the Inquiry hear directly from diaspora communities (as David Johnston had planned to do) as well as from the security agencies charged with outreach.
I guess the advice comes down to this. The second part of the inquiry should provide substantial focus on threat reduction measures and security agency outreach as critical capacities to counter foreign interference—because they are.
