In the time since 9/11, national security law has become one of the most controversial topics in the public domain. From Wikileaks to Edward Snowden; CSIS to Bill C51—the discussion around national security often pits staunch defenders of civil liberties against entire political establishments, and constituents living in fear of what may happen if the government doesn't take a more aggressive approach to combatting terrorism.
Ultimately, however, after all of the op-eds on massive pieces of legislation and intelligence scandals, the real nitty gritty of national security law happens behind the scenes. Judicial orders, security agency guidelines, ministerial directives. These documents—the ones penned behind closed doors—are rarely ever seen by the public, and when they are, it's usually because of the work of diligent journalists.
University of Ottawa professor Craig Forcese is trying to change that. He is the founder of the Secret Law Gazette—an online repository dedicated to chronicling and annotating the internals of Canada's national security apparatus. We spoke to him Monday to get a better idea of what exactly "secret law" is, and how he hopes his new project will change the tide of information.
VICE: What was your purpose for starting this project?
Craig Forcese: Two things: the first is that for any system predicated on the rule of law, the absence of transparency [in understanding how law functions and how it's applied] is enormously concerning. Certainly, since 9/11, more and more of national security is governed and guarded by law, but that law is often opaque and non-transparent. Citizens do not have a real grasp on how national security law works.
The second point is that I have accumulated a wealth of material detailing these laws over the years, some of which I've acquired through my own access requests, and some of which have been acquired through access requests by the media. All of this is quite laborious for me to organize, and also not beneficial for me to keep to myself, so I decided the best way to organize it would be to create a public catalogue.
I should probably ask this before we dive in: What exactly is "secret law"?
"Secret law" is not a [singular] term—it's really shorthand for a number of different things. What I mean by secret law is ministerial directives given to CSIS, the RCMP, and other agencies in, well, secret. In other words, these are statutes given by government ministers to agencies dealing with national security on how to conduct themselves.
Can you give me an example?
Sure. One such example is the RCMP ministerial directives on national security investigations into sensitive sectors, back in 2003, which included the media. When there was discussion about how the RCMP can interact or investigate the media, there was discussion about the ministerial directives that guided them to do so in the first place.
Another example would be, generally speaking, internal policy that guides the application of statutory authorities, or add some more context to not particularly-detailed [law]. For instance, internal policy at CSIS might add flesh to how persons of interest are targeted, or how one should deal with confidential sources.
Beyond that, there's a whole host of materials I have not got access to because they're so heavily guarded: legal advice given from the department of justice to authorities. A lot of this stuff is not only guarded by national security law, but also solicitor-client privilege. It's almost impossible to get a hold of.
OK, so "secret law" is not really a shady, spooky type of legislation, but more of the inner workings of bureaucratic agencies figuring out how to use these laws to their advantage?
Is it fair to say this law is hidden from the public?
No, I wouldn't go that far.
First of all, the law does anticipate that these things will exist. Of course, things such as ministerial directives are excluded from publication, so you have to dig for them. It might seem that they're being purposely hidden—that last example was obtained via an ATIP (Access To Information and Privacy) request, and was posted online—but it's really just a matter of an antiquated system.
Many of these laws do not grapple well with modern transparency concerns or current national security environments, so what you have is older national security law, piled on by ministerial directives and internal policy. It's very hard to see the wording of a law, and extrapolate in what way it will be used by national security agencies, because most people don't have a grasp of where legal wording can stretch it to.
Essentially, interpretation gives these agencies a lot of room to take basic national security law and make some very complex decisions.
Exactly! That's the problem with secret law—it is being used to bridge gaps, when the gaps should have been properly bridged by new legislation.
The fact of the matter is that our national security laws have not kept pace, and I don't think we've done a particularly good job in renovating those laws to fall in line with new technology and our security needs.
That's why you see things like that CSIS case last fall, which involved the use of metadata, and whether mass collection of metadata complied with the CSIS Act. It was clear that metadata was not even a conception at the time of the CSIS Act's creation in 1984, which puts not only CSIS but the whole government in an awkward legal position.
As an average citizen, just how hard would it be to figure out what the hell is going on behind the scenes?
For legal advice, it's almost impossible. For everything else, you basically need to really understand how to use the ATIP system to your advantage. It requires very specific wording, context, and a lot of attempts before you can make an intelligent request. Even when you've done that, you often get back documents that are so heavily-redacted that it's basically like reading a blank page. There's an argument there to be had about whether those redactions are actually reasonable.
How much of a problem are redactions?
Consider this: if you look on at CSIS' 2015 Ministerial Directions on accountability, and actually look at the section that says "Accountability"—most of it is redacted. The fact that it says nothing says a lot.
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