Stephanie and Craig are back for a quick podcast as they develop big plans for the next couple of weeks. In this podcast, we walk through Minister Goodale’s speech this week…which has some pointers on a couple of issues we’ve been discussing: cyber attribution policies (the Minister called out the Chinese Ministry of State Security); the scope of an expected new bill on cyber standards; and who is going to be the honest broker when misinformation happens during an election. And then we get into our marquee issue, for the real aficionados of obscure international law out there: is the former Canadian diplomat being detained by China in apparent retaliation for the Meng extradition proceeding entitled to diplomatic immunities — the answer is yes, of a sort. Finally, a quick talk about a breaking story: a permanent resident given permanent residency status despite security concerns.
We’re back with the first episode of 2019. Thanks for sticking with us in a brand new year. We’re using this episode as a catch-up on issues and stories we’ve been following, and things that have come up since our last update podcast. Here, we talk briefly about planned reforms of RCMP oversight; updates in the Huawei saga; the fate of the Ford anti-terrorism bill; Ralph Goodale’s December speech and the prospect of a new law of some sort on cybersecurity; the first annual report of the National Security and Intelligence Committee of Parliamentarians (now with the Prime Minister); what we’re looking for in the Peshdary terrorism case and the Huang espionage case; and some future-casting on election-related issues, with a final comment about the death threats being uttered by supporters of “Yellow Vest Canada”. Lots of doom and foreboding in this episode, but all done in good cheer.
TS/SI/CEO – Top Secret/Santa Intelligence/Christmas Eve Only. [BEST NARRATOR VOICE:] At the top of the world, in the frozen Arctic wastes, an oasis of Christmas cheer in Santa’s Magical Kingdom stands threatened. Dark forces lurk, as a stellar cast of Christmas villains — and Bob from Mordor — plot a massive surveillance operation targeting those Canadians on Santa’s naughty list. Can the Canadian security and intelligence community foil this conspiracy, lawfully of course? Gather around your earpods this holiday season for the first ever INTREPID Christmas Caper. And we will see you again in the New Year. Thanks for being our listeners in 2018!
We spend our pre-holidays reading, so you do not. It’s terrorism report day on A Podcast Called INTREPID. We circle back to the CSIS director’s speech two weeks ago to tease out the discussion on terrorism issues. Then we do a diagnostic of the 2018 Terrorism Threat to Canada report. We argue about it a little, nitpicking all the way, before talking about the “45 Day Report” on foreign fighters tabled by the government in the House of Commons, also last week. Then to keep things jolly, we dive into the new Canada Centre (against a lot of bad radicalization to violence things — it’s a long title) report on countering violent radicalization, but end with a discussion with Jessica Davis about the new, and unprecedented FINTRAC report on threat financing. This is our penultimate podcast for 2018. But we’ll be back with our “Christmas special” next week.
And on the Twelfth Day of Christmas, our government gave to us…a whole whack of speeches, studies, reports, policy announcements in national security. In this episode we start plowing through them. Today, we talk about CSIS Director David Vigneault’s Toronto speech, https://www.canada.ca/en/security-intelligence-service/news/2018/12/remarks-by-director-david-vigneault-at-the-economic-club-of-canada.html. We also walk through some of the things we drew out of the CSE’s Canadian Centre for Cyber Security first cyber security threat assessment, https://cyber.gc.ca/en/guidance/national-cyber-threat-assessment-2018. Finally, we decided that while we’re on cyber, we’d go Down Under, for a first impression of the new Australian lawful access law, designed to compel some sort of solution to the communications encryption issue and the “Going Dark” dilemma.
First, let’s make clear, Stephanie is responsible for the title of today’s episode. But yes, it’s the Huawei special. We do a deep dive into the extradition proceedings at play now in Vancouver, brought against the CFO of Huawei for some sort of alleged US sanctions busting. We bring in the big guns: Alan Kashdan, an export controls, trade and sanctions law expert from Hughes Hubbard & Reed LLP in Washington DC, walks through what might be at issue with the US criminal investigation sparking the extradition process. And then Rob Currie from Dalhousie’s Schulich School of Law guides us through the, yes, very political extradition process. (Extradition is the most political legal process we’re likely to ever talk about on this show). Thanks to both Alan and Rob on becoming INTREPID alums.
Sound the legal geekery klaxon! Craig and Stephanie are burning both ends of the candle trying to stay up with Canadian national security developments. Like batters in a batting cage, they swing away at three new cases implicating either CSIS warrants or police “production orders”. And they throw in a Canada Evidence Act decision by the Federal Court updating the Canadian approach to disclosure in court cases of intelligence over which a foreign state claims “originator control”. This is the nitty gritty of national security law practice. If you get through the whole thing without yawning, let Stephanie know.
Well, the first report of the National Security and Intelligence Committee of Parliamentarians is out. It’s on the politically contentious issue of “how did a person with a serious Canadian criminal record of political violence get into a diplomatic reception during the PM’s Indian visit” earlier this year. And assorted other issues, including whether there was foreign interference and whether the National Security and Intelligence Advisor should have briefed the media on the latter. Stephanie and Craig agree that (1) the report exists and (2) it is fifty pages long. That’s about it. Proving why we will never do a live recording, we were able to edit out about 10 minutes of “yes”, “no”, and “what about para X”, and “but there is also para Y”. This redacted version of the podcast preserves, however, our essential differences. Also, Carvin is an easy grader (can you tell who handles the tech and posting?)
As promised, Stephanie and Craig circle back to the question of foreign interference, elections and the new electoral law, bill C-76, with Craig’s uOttawa law school colleague, Michael Pal. We get into the weeds on weaknesses in the current system of electoral regulation, and where foreign actors may exercise influence. We then walk through changes proposed in C-76, designed to minimize any foreign footprint in Canadian elections. Michael also lays out his wish list of further changes he believes will keep Canadian federal elections free and fair. (We will be doing a least one other podcast on election law and foreign influence in the led up to the 2019 foreign election, with a special INTREPID podsight, to be announced)
Stephanie and Craig are back with a brief update on bill C-59 and its trajectory through the Senate. We then update listeners on the appeal of a case we discussed in Ep 48, concerning whether CSIS may conduct foreign intelligence intercepts of some sort outside of Canada. Then we get to our headline topic: security screening and clearances, with an eye to the National Security and Intelligence Committee of Parliamentarians (NSICoP). This discussion is sparked by the alleged extortion attempt against Tony Clement, a NSICoP member, over photos communicated via electronic means. There is no allegation this attempted crime was aimed at NSICoP information. But this development has sparked reporting and discussion of how NSICoP members are security screened. The government is holding that information close to chest, but we walk through how we think it should work, based on the NSICoP Act, the Security of Information Act and the Government Standard on Security Screening. We also debate whether screening of parliamentarians to Top Secret should be as thorough as it is for executive officials.
Stephanie and Craig return to their re-review of bill C-59, as it wends its way through Senate. Today, they address the CSIS Act changes — and bring back Bob from Mordor and his merry band of plotters to play a cameo role. First up: criminal law immunity for certain approved conduct that would otherwise constitute an offence, undertaken by CSIS employees or sources in the collection of intelligence. Then: CSIS’s powers of threat reduction were a controversial addition in bill C-51 (2015), and are renovated by C-59 in way that makes them more likely to be constitutional and certainly less unbounded. Finally: C-59 creates a new system for CSIS to collect, retain and query bulk datasets, an issue that has been controversial in the past (because CSIS was doing it when it should not have been). The C-59 dataset regime places this intelligence practice on a legal footing. The result is complicated — but it is complicated for a reason. Your INTREPID team does their best to walk through the “why” and the “what” of all these powers.
The headlines have kept Craig and Stephanie on their toes. In this episode, they catch up with things that have caught their eye in the world of national security law and policy. On deck, among other things: The Ford Government’s “Terrorist Activities Sanctions Act” (probably best called the “Populist Chest-Beating Act which Will Do the Opposite of What is Intended”); progress on bill C-76 (the amendments of the Canada Elections Act that, among other things, focuses on election security); the question of whether Canada should follow the US in charging state-actors for state-sponsored hacking; and a bevy of cyber-policy developments. This is a full episode with a treat for everyone (and a very old, stale Joe Louis we found in the attic for the Ford government’s first foray into national security-related law). (We’ve corrected a premature upload with a missing edit — sorry for the glitch in the first minute or so for those who downloaded this within 2 minutes of posting! Our technical team has been fired.)
Stephanie and Craig were very pleased to welcome Toronto Star journalist Alex Boutilier to the podcast. Alex has been reporting in the national security space for a number of years — and most recently on right-wing extremism in Canada. His stories can be found here: https://www.thestar.com/authors.boutilier_alex.html. Alex sat down with the INTREPID team to talk about these recent reports, and to walk through the right-wing extremism phenomenon in Canada. He also provided insight into the challenges and virtues of reporting on national security matters in Canada.
So Stephanie and Craig don’t have a Patreon fundraising account or commercial sponsors. We are, in fact, part of Big Academia. Our day jobs involve teaching in two academic programs we adore — the University of Ottawa, Faculty of Law (Common Law Section) and the Norman Paterson School of International Affairs, Carleton University. And those two institutions offer a shared JD/MA degree. So let us tell you about it, because some of you may be interested in becoming students in it. Everyone else, well, your Big Academia-sponsored crack team at INTREPID is back in the trenches with a new guest and new topic next week.
Craig was joined by Solomon Friedman, a supremely talented criminal defence lawyer who works on, among other things, terrorism cases. Defence lawyers play a vital role in our system of justice — and ultimately in the way we do national security in a democratic society. Join Solomon to understand how it all works. Solomon and Craig walk through the foreign fighter issue, and especially the revelations stemming from Stewart Bell (Global)’s reporting on Canadian detainees in Kurdish custody who have admitted to affiliations (and sometimes more) with the Islamic State (ISIS). Could these people be prosecuted in Canada? What could they be charged with? What evidence could be used against them? Why might CSIS and RCMP be reluctant to interview these people while in Kurdish custody? Should ministers involve themselves in the process, as some opposition politicians seem to want? What would happen if they did? (Hint: nothing good). How would the confessions recorded by Global hold up in court? Should Stewart and Amarnath Amarasingam (the terrorism expert who helped Stewart) expect a knock on the door, seeking their records from this Syrian trip? What about the social media footprint of the foreign fighters — could those things support a conviction? And as a bonus, we also talk about the Vice Admiral Norman case, and the defence’s recent effort to extract Cabinet documents. Short version: this is a game of disclosure chicken, and if the defence wins its application, it could lead to the end of this case if the government refuses more disclosure.
Stephanie and Craig were joined Thursday by Thomas Juneau, professor at the Graduate School of Public and International Affairs at the University of Ottawa and from 2003-2014 a strategic analyst at the Department of National Defence, covering the Middle East. This was a big week of news from that region. We cover two things: first we discuss the disappearance and seeming murder of Saudi journalist Jamal Khashoggi in the Saudi consulate in Turkey. Thomas walks through what’s going on with Saudi foreign policy, and what this latest incident means. Then, we shift gears about 30 minutes into the podcast and talk about the breaking news reported by Stewart Bell at Global. All week Stewart has been reporting on Canadian former ISIS affiliates detained by Kurdish forces in Syria. This is a big new development in the continuing debate about “what to do about foreign fighters”. In this episode, we talk about whether Canada has to take these people back and who in the Canadian government should (and should not) be interviewing them. In our next episode, we’ll bring in another guest with lots of criminal law experience and do a deep dive on the question of prosecuting returning foreign fighters. (Apologies for the HVAC background noise. Our chief technician, Craig, had a bit of a mic fail.)
Ok, it is getting hard to keep up. So Stephanie and Craig are working on a couple of update podcasts. In this one, we go over last week’s astonishing spy caper, involving coordinated responses by European and North American authorities to more coordinated Russian hacking/espionage activities. We look at the Canadian angle, which reportedly included an attempted cyber penetration of the World Anti-Doping Agency (WADA), headquartered in Montreal. We also discuss the bizarre story out of Bloomberg about an apparent Chinese hardware spy hack of critical US computer systems, and the Globe and Mail’s story of a puzzling meeting held by US intelligence officials criticizing Canada’s capacity to protect against Chinese…tech hacks. And a final word on a Toronto Star report about CSE briefing provinces on electoral interference. Craig and Stephanie are back very soon with INTREPID friends on other major topics in the world of national security law and policy.
MGen (ret) Blaise Cathcart, Canada’s former Judge Advocate General, is back on INTREPID. He walks through how the “military justice system” works for the Canadian Armed Forces. This discussion is sparked by a recent Court Martial Appeal Court decision that casts doubt on the workings of the courts-martial system, when it comes to Criminal Code offences. You can find that decision, Beaudry, here: https://www.canlii.org/en/ca/cmac/doc/2018/2018cmac4/2018cmac4.html
Stephanie and Craig are joined by Leah West in the latest installment of INTRPID C-59 “storytime”. In this episode, Bob from Mordor (the star from Ep 47) is back with another devious plot. That plot implicates CSE’s foreign intelligence mandate. It spirals to a situation in which CSE might wish to use its proposed “active cyber” mandate. And then the Canadian Armed forces join the Gondor Defence Forces, and with CSE’s assistance, take on Mordor. Can they? The purpose of this podcast is to walk though CSE’s powers, pre C-59 and post C-59 and surface the policy and legal dilemmas being addressed — and ask questions about checks and balances. And now you can debate the fate of Middle Earth and whether CSE should save it with your family over turkey this Thanksgiving weekend.
Stephanie and Craig couldn’t record the week of September 24, so they put together a discussion of recent headlines in Canadian national security law and policy (admittedly, broadly defined), as of last week. They provide: a quick status update on the Abdelrazik and Peshdary court cases; talk about Facebook’s latest news integrity initiative; and the latest preoccupations with Chinese technology companies and Canada’s 5G plans. Then they wander into more political terrain (where they have no skill sets whatsoever, so caveat emptor): first, the recent “floor crossing” in the House of Commons and the Conservative shadow portfolio of “Global Security; and second, the Max Bernier “People’s Party” and how it might change their earlier speculation about foreign influence issues and the 2019 election. This podcast is an intermission between the more detailed “storytelling” approach to exploring the implications of Bill C-59, now being debated in the Senate. They began that in Episode 51 and will tell a new story in Ep 53 next week.