The ministry of the interior in Mozambique has high concrete walls. People walk by it quickly. In the cells where political detainees are kept, there are no beds, no benches, no chairs. Detainees sleep huddled together on the concrete floor, waiting for interrogation.
Recently, in an interview in Toronto, two senior Afghani freedom fighters explained that the current Afghan ministry of the interior prefers hospital basements for its holding chambers. The basements are cold, like refrigerators, they explained, and men can only take the temperature for 10 minutes or so. After an hour they always talk.
These images, of course, sprang quickly, perhaps irrationally, to mind when, in this benign country that has seen no institutionalized torture, no concentration camps and no political prisons, our solicitor general introduced on May 19 the legislation setting up a brand-new security service in Canada independent of the RCMP.
Let us take it as a given that Canadians want their government to detect spies. What people worry about whenever security services are talked about are only the following:
1. Will the government use the security service to investigate, harass and intimidate people who are detrimental not to Canada’s interest but to those specific interests of the government in power?
2. Will the security service help create a climate in which legitimate dissent or protest could come to be regarded as a subversive activity?
Clearly, no government will answer either of those questions in the positive. Whether or not the government is telling the truth depends on its own ethics and goodwill. Personally, I am not aware of any society in which, at one time or another, the security services have not been used in an attempt to stifle legitimate opponents.
Nonetheless, we need counterintelligence services. It would be naïve and suicidal to pretend that we are not at risk from spies, terrorists and people acting against the interests of a stable and free Canada. What we have to do is see that the security services are used precisely for what the government claims they are for—in this case to protect our country from “espionage . . . subversion and its policies from clandestine influences ....”
But two areas of the legislation raise serious concern already. The first is minor. The Canadian Security Intelligence Service legislation surrounds the socalled intrusive investigative techniques (telephone tapping, mail surveillance, search and entry) with so many safeguards that we either make any investigation impossible or else make it known to so many people that it becomes virtually ineffective. If every time you need to tap a possible spy’s phone you have to get permission from a federal court judge, the safeguards will either render the action impossibly difficult or, conversely, judges will see them as rubber-stamp procedures.
If you have to go through innumerable committees, an inspector general, review procedures and civilian complaint boards—admirable though this may be in intent—it is totally at variance with the nature of counterintelligence work and allows the KGB to infil-
‘Will our security service create a climate in which legitimate dissent could be regarded as subversive?’
trate the whole mess by co-opting one secretary. This becomes a kindergarten for penetration by agents.
But the major danger in the legislation lies in the answer the CSIS gives to its own question: will CSIS be allowed to break the law? “ ... The legislation provides that a CSIS employee is justified in taking such actions....”
This skirts an issue of enormous importance. It raises the acceptance of an idea that there may be one law for the ordinary citizen and one for the organs of the state. The potential for abuse is horrifying. Anything forbidden to a citizen should also be forbidden to a CSIS employee, a policeman or a dogcatcher, for that matter. This does not mean that our security services cannot tap phones or run red lights. Just as an ordinary citizen, when caught speeding, can, under common law, plead the defence of “necessity” if he was taking someone bitten by a rattlesnake to hospital, the same defence is available to any organ of the state. But the danger in creating legislation in advance that says a policeman may drive on the wrong side of the road or open mail if
reasonable seems unreasonable. As it stands, any citizen may drive on the wrong side of the road if it is reasonable. To legislate that can only be for reasons beyond common law.
Beyond that very real apprehension lies a more common fear about our security service. Key to its effectiveness are certain judgments. For example, the Parti Québécois is clearly a legal party. The FLQ is clearly a terrorist organization. A number of feminist organizations are obviously legitimate, but people accused of blowing up the video stores in Vancouver, using very much the same sort of slogans, rhetoric and fuelled by many of the same ideals as law-abiding feminists, are in fact terrorists. A security service must understand when a group crosses the line from legitimate dissent into terrorism—a problem that surfaced when the RCMP burned PQ barns.
The truth is that the sort of people who might have the mental equipment to make those calls rarely choose the security services as a profession, and those who choose police work in our country rarely have the mental equipment needed for this delicate job. How many of our security service officers would understand that Herbert Marcuse, that amalgam of Marxism, Freudian and New Left ideas, is not a legitimate target of surveillance, while the Brazilian Carlos Marighella, who practises what Marcuse preaches (and wrote the “Mini Manual” on guerrilla warfare before he was killed in 1969 as a consequence of his ideas) most certainly would be.
Of course, the real problem is that if this new CSIS legislation had been introduced by a John Diefenbaker, our attitude might well be very different to it. We might be more confident in the ways in which it would be used. It may be unfair and it may put Pierre Trudeau in a no-win situation, but it is difficult to have confidence in security legislation introduced by a man under whose leadership our security services have been used to harass dissenters while appearing to be hamstrung in their efforts to follow up on real threats to our state, such as Hugh Hambleton, the Canadian university professor who pleaded guilty to spying after he was arrested by British authorities last fall—one of many examples. This may well be unfair, but it is the record Pierre Trudeau must live with.
And the CSIS is his legacy that we may have to endure.
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