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How do we keep Big Beaver at bay?

Globe and Mail Update

American politics is roiling over revelations about new powers given to the top-secret National Security Agency to intercept the communications of Americans. The story has captured such attention because it pits a beleaguered U.S. president, accused of the arrogant presumption of imperial powers, against a Congress and public increasingly distrustful of his administration's conduct of the war on terrorism. The story has tremendous drawing power because it touches sensitive nerves regarding the role of the intelligence community in American politics.

Thirty years ago, amidst the high drama of Watergate and the U.S. retreat from Vietnam, the American intelligence community was found to have engaged in illegal acts of domestic espionage, primarily inspired by a Nixon White House determined to fight back against its domestic opponents. Congress proceeded to erect a very careful legal fence around such espionage activities.

Critical to that legal regime was the idea that constitutional rights to privacy had to be respected and that U.S. intelligence agencies could not engage in surveillance and intercept activities against Americans without the backing of court-approved warrants.

The Bush administration has, by presidential fiat, turned its back on this history and decided, in the post-9/11 era, that the National Security Agency needed to be freed from the requirement of obtaining warrants to engage in certain communications intercepts involving Americans. Charges of White House illegality and even threats of impeachment proceedings have already heated the debate. The Bush administration has fought back vigorously, arguing that presidential war-fighting powers lend appropriate legal authority to the extension of such surveillance and that the NSA needs such tools to try to prevent future 9/11s.



The contrast between the furor over the NSA's activities and the silence surrounding the powers and practices of the equivalent agency in Canada, the Communications Security Establishment (CSE), could not be more striking. The stark reality is that Canada took the lead, post-9/11, in extending to the CSE the authority to intercept the communications of Canadians without a warrant. This power was enshrined in the anti-terrorism legislation, Bill C-36, passed into law in December of 2001. Not only did Bill C-36 provide enabling legislation to the CSE, which had operated for 55 years under a secret order-in-council, but it authorized the agency, in certain circumstances, to target all manner of Canadian communications, whether they were cellphone, telephone, e-mail or FAX messages, without a court warrant.

The CSE's new powers, courtesy of Bill C-36, spurred no controversy in Canada remotely similar to that now generated in the U.S., despite the similarity of Canadian practice to that of the NSA. Why did we let such Big Brotherish powers pass unnoticed?

There are several ways of answering the question, not all flattering.

Canadians typically pay little attention to what their security and intelligence agencies are up to. That attitude changed a bit after 9/11, but not profoundly. Canada has no equivalent of the congressional scrutiny and concern that is often focused on the mammoth U.S. intelligence apparatus. Maybe we just don't care, or maybe we trust a little too much. Neither approach is wise.

There is another set of answers to the question of why new intercept powers went unchallenged in Canada after 9/11. The government was scrupulous, on this occasion, to announce them, publicly justify them, enshrine them in legislation, and provide some safeguards. Then defence minister Art Eggleton was careful to explain to Parliament the precise circumstances that would occasion the electronic snooping into Canadian communications by the CSE. He noted that such interception was only legally valid when the intercept operation targeted a foreign source threat that was communicating into Canada. Every such intercept would require ministerial authorization -- an actual signature by the minister, not some underling.

There was another layer of safeguards built in. The CSE has an official and independent watchdog, the Office of the Commissioner of the CSE. The current CSE commissioner, retired Supreme Court justice Antonio Lamer, said in his most recent annual report that ministerial authorizations for the intercept of Canadian communications were a strange sort of legal creature. But he has also recognized their need and pronounced himself satisfied that the CSE and the Defence Minister are not breaking the law or infringing on the Charter rights of Canadians.

Out of this mix of concern about new powers and partial reassurance about procedures and accountability, two underlying issues remain. One is the question of necessity. Does the CSE really need the power to intercept communications coming into and out of Canada? The answer has to be yes. The CSE was forced into the anti-terrorist ball game by 9/11. Terrorist operations, whether planning, fundraising, recruitment or the conduct of attacks, know no borders. Terrorist groups do know the power and facility of the Internet and modern communications. It would be senseless to stop the SIGINT (signals intelligence) hunt at the Canadian border.

The other question is: What version of the law are we comfortable with? With the new powers granted to the CSE, we may have placed ourselves on a slippery slope.

In an emergency, under pressure, all the legal rules may prove difficult to follow. Never put temptation in the way of spy agencies when you don't have to.

The real question for debate in Canada is not whether the CSE should be doing the job it is doing, but whether there is any argument for allowing it to intercept Canadian communications without a warrant. The answer to that one may be provided by the political fallout over NSA operations south of the border.

Wesley Wark, a professor at the Munk Centre for International Studies at the University of Toronto, is writing a book on Canadian policies in the war on terror.