Another blow for National Security Certificates?

The controversy surrounding the Canadian government’s use of the tool known as National Security Certificates does not seem to want to go away.  A Federal Court judge has ruled that the government’s case against one more alleged terrorist, Mahmoud Jaballah, is not reasonable and the certificate issued against him in 1999 will be set aside.  The reasons for this decision were not made public as of yesterday, and a separate classified ruling will be provided to deal with secret information.

So is this the end of a terrible practice that violates fundamental human rights (insofar as those accused cannot access all the information gathered against them)?  Perhaps, although I happen to believe that the disappearance of this option makes us collectively less safe.

Think what you want about these certificates, but there is a much greater and much more important issue here and it has a very direct impact on national security.  The elephant in the room is the role we as Canadians want our intelligence agencies to play and whether we want them to help prevent terrorism through the collection and use of classified information.

This has always been the stumbling block in the security certificate circus: what information can be disclosed to all parties without jeopardising our intelligence organisations’ ability to continue to collect such information.  We have to accept that there is nothing more central to intelligence than protecting sources and methods.  Failing to do so means we will have less effective means in the future and, it must be said, we will be less able to detect potential terrorist plots.  In this light, it should come as no surprise that the government has chosen not to make its intelligence freely available, electing to drop cases rather than risk compromise.

Many have argued that the intelligence gathered is unreliable and unusable.  Much has been made of sources failing lie detector tests and the inherent weakness of collaborating information received from countries where human rights are not respected (Syria for example).  Since the information is not subject to the same examination and challenge as evidence, some think that it should not receive the same weight and hence should be thrown out.

But is this the only option?  Fortunately not and there are ways to use this valuable source without putting the viability of our spy agencies in danger.  I see two options, one less likely to work and one more reasonable.

We could allow intelligence as it currently exists to be used in open court and subject it to the usual questioning, including putting human sources on the stand.  This measure will probably not be effective since human sources are not the same as human agents (the former are used by intelligence services and the latter by law enforcement agencies).  It is my experience that sources have no desire to be outed in public and the possibility that they could be would lead most potential sources to decline to cooperate with the intelligence apparatus.  That would be a tremendous loss to collection.

On the other hand, we could change the way intelligence is collected to bring it in line with how evidence is amassed.  Subjecting intelligence gathering to evidentiary standards has been done in other countries and could possibly apply in Canada.  It would take time and would require a complete change of mindset, but it could be done.  This transformation would allow this  unique source to be used in court and could make the difference in terrorism or espionage cases.

Our intelligence agencies are very important and carry out their duties so as to make Canada a more secure country.  We must figure out how best to put their information to use without making their mandates impossible to carry out.  There is too much at stake to do otherwise.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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