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.
Stephanie and Craig are back with two topics: piracy (for reasons we explain) and then our main topic, the “promotion and advocacy of terrorism offences in general” crime created by bill C-51. It’s up for modification in bill C-59, and as that bill is debated in Senate, expect all sorts of claims about whether the modifications are good, bad or indifferent. Some of these claims will be partisan, so we try to be clinical. We walk through a series of hypothetical “speech acts” and examine how each could trigger legal consequences, culminating in a discussion of what (if any) gap the C-51 speech crime fills. And also we talk about the related issue of terrorism propaganda. Warning: Our hypotheticals must, by necessity, be examples of bad speech. THEY ARE NOT OUR VIEWS. If listeners are interested in a more detailed discussion of terrorism speech crimes, the paper Craig mentions (coauthored with Kent Roach) is here: https://albertalawreview.com/index.php/ALR/article/view/280
Stephanie and Craig find the national security in everything. After a brief update on the Abdelrazik case and a discussion of the controversial question of whether the trial will involve “closed material proceedings” (in which the plaintiff is excluded) and an update on a recent Ottawa terrorism peace bond that wasn’t, they pick up the thread on citizenship and national security. This discussion is motivated by the Vavilov case — involving the sons of Russian spies who assumed Canadian identities now fighting for Canadian citizenship. We’ve talked about this saga before, but this week, the case has been tied into a broader public debate about “birthright citizenship”. We try to unpack the different legal and policy issues associated with the way Canada gives citizenship. And then, to round out the episode: we couldn’t resist jumping on the “notwithstanding clause” (s. 33 of the Charter of Rights and Freedoms) bandwagon. But we address the question: does s.33 mean a Parliament could actually enact a redo of the infamous War Measures Act? Lots more we could have said on all these issues. And probably will in the future.
Stephanie and Craig are back for season 2 of "A Podcast Called INTREPID". In this first episode of the new season, we catch up on developments in August, and then look forward to things that will be happening in national security law and policy world this Fall. We begin by discussing the Jeffrey Delisle case -- the espionage case from earlier in this decade, now back in the news because Mr Delisle was released on parole in August. We talk about the nature of his spying, the investigation into it, the criminal law issues, and the policy matters they raise (including, of course, intelligence to evidence, and the supplemental "graymail" issue of espionage trials). We then talk briefly about the Five Eyes ministerial statement, "Statement of Principles on Access to Evidence and Encryption", released in August. We think this is a bit of a 'nothingburger' in terms of furthering the debate on encryption and the "going dark" issue. And of course, we can't start off the new season without talking about August's Saudi Arabia meltdown. We offer thoughts this on what this event might say about Canada's foreign intelligence needs. We end the podcast talking about things we'll be watching this Fall: developments with bill C-76 (election law and security) and C-59 (the major national security law overhaul); the first National Security and Intelligence Committee of Parliamentarians report (out soon); and two trials (Abdelrazik civil lawsuit against Canada and the Norman criminal trial). Thanks for joining us again for INTREPID and we hope to keep earning your listening time.
In this final podcast of INTREPID's season 1, Stephanie and Craig catch up on some recent developments in the national security space. Cabinet has been shuffled, and a new portfolio – Minister of Border Security and Organized Crime Reduction – added. Lots of people have views about the politics of the shuffle, but we’re your source for the geeky machinery of government discussion. Next up, a public opinion survey commissioned by CSIS reveals most people can’t specifically identify CSIS but have faith in it. We get into some of the weeds – there are important aspects of the survey. But our big topics are these: a walk through the recently-issued annual report of the Communications Security Establishment commissioner, CSE’s review body. What can we glean from it about some of the issues and challenges CSE confronts in its activities? And our really big development: a new Federal Court decision on CSIS’s investigative powers, this time in relation to its “section 16” “foreign intelligence” mandate. Does the decision produce a “gap” in CSIS’s intelligence gathering capacities? We do some “INTREPID Speculative Storytime” to leap over the heavy redactions in this case and address this question. And then to end, we talk about real stories for the lake or beach: books that we recommend or which are on our own summer reading list. And that’s a wrap for season 1. Our plan is to be back with season 2 in September. In the meantime, we are genuinely gratified by reviews on iTunes and elsewhere that suggest we’re not completely wasting our time. And since we’re sponsored exclusively by good karma, please spread the word about INTREPID!
The Canadian Armed Forces is off to Mali on a peace-making mission. And with forest fire season in full swing, it may be that the CAF will be called out to assist in disaster relief sometime in the next weeks. So, in this podcast, Stephanie and Craig invited Major General (ret) Blaise Cathcart, Canada’s former Judge Advocate General, to walk us through how CAF deployments work. We focus first on the international dimension, examining: how the Prime Minister and Cabinet can authorize an international deployment; the means of civilian control over the military; the scope of the “crown/royal prerogative” over defence, and its broader significance; and whether international deployment standards should be legislated. We then pivot to domestic deployments, ranging from assistance to law enforcement at major international conferences such as the G7 through to public service in respect to assisting in disaster relief. On this topic, we examine the assortment of rules that govern how these deployments are made and the powers and responsibilities that the CAF has in them. When the military turns out, there is a whole machinery that has been kicked into motion. Listen in if you want to understand all the moving gears.
Stephanie and Craig are honoured to welcome to Intrepid Ambassador Sabine Nolke, Canada's Ambassador to the Netherlands, and Canada's permanent representative to the international courts based in the Hague and the Organization for the Prohibition of Chemical Weapons (OPCW). In this "podsight", Ambassador Nolke describes her career at Global Affairs Canada and then the work of the OPCW in combating chemical weapons use and proliferation. Ambassador Nolke discusses the challenges of dealing with Russia and its allies on issues of chemical weapons use in Syria and Salisbury, England, and discusses new developments at the OPCW in terms of investigating chemical weapons use. This is a terrific inner-peak into the world of international security diplomacy, what Canada does in this space and challenges in combating the scourge of chemical weapons. Thanks to Ambassador Nolke for becoming an Intrepid alum!
Stephanie and Craig are joined by Jessica Davis (@JessMarinDavis), former FINTRAC and CSIS analyst, and author of "Women in Modern Terrorism" and a forthcoming book on threat financing. Lots discussed here, including: "why is combating threat financing important"; the issue of prosecutions (or lack of them) in Canada for terrorism financing; the concept of "financial intelligence" or FININT; the skill set of a good FININT analyst; and terrorism financing and ISIS.
Stephanie and Craig welcome two terrific guests back to the show: Major-General (ret) Blaise Cathcart (Canada's former JAG) and Leah West (in her pre-law days, an ops officer with the Canadian Armed Forces). Today, we circle back to a topic we addressed in Ep 11: "targeted killing". Our return to this topic is sparked by Stewart Bell's reporting at Global on a 2015 Canadian government memo discussing the "the strategic issues associated with the targeting of enemy combatants who are also Canadian citizens in Op IMPACT, the CAF contribution to Coalition Operation INHERENT RESOLVE efforts against" ISIS. Stephanie and Craig begin with a typology of how the term "targeted killing" has been used in the literature and a description of the 2015 memo. They then bring in the guests to discuss the overall tactical targeting process for the CAF, its policy origins, and how targeting packages are determined and vetted. They focus on the concept of "armed conflict", and the applicable law of armed conflict (LOAC) (otherwise known as international humanitarian law or IHL). They address: the distinction between killing in an armed conflict and outside an armed conflict; the meaning of armed conflict and the thresholds for it and its geography, who you can kill in an armed conflict and whether there are constraints on that; how one distinguishes between a combatant (who can be targeted) and a non-combatant (who cannot); and the challenges of figuring out who is directly participating in hostilities in a hot conflict. They end with a discussion on the extent to which the Charter of Rights and Freedoms would apply in an armed conflict situation; and a brief discussion of intelligence sharing and targeting. This is our longest ever podcast, and violates our "no longer than 45-50 minutes" standard. But there is so much rich discussion in here with our terrific guests that we did not have the heart to cut. Hope you feel the same.
Stephanie and Craig welcome Scott Jones, Deputy Chief of IT Security at the Communications Security Establishment and now the incoming Head of the new Canadian Centre for Cyber Security, based at CSE. We talk about Scott's background and his roles in government and at the CSE, before launching into a review of the new Centre, its mandate and functions. Our focus is on cyber security and defensive cyber, and Scott walks us through how the new Centre will work in that space, not just with government but also the private sector. Scott discusses the cyber security challenges, especially for small and medium enterprises and in the critical infrastructure sector. Then we talk about "artificial intelligence" -- what is, is it here, and what does it mean in the cyber security area? And we end by shifting states (sorry) and talking about quantum computing and its implications for cryptographic security. This is a romp through what was once science fiction, and now just plain science. Another jammed-pack session, and Scott is the person you want to hear from on all these matters. Our thanks to Scott for becoming an Intrepid alum.
Lots happening in the national security law and policy world. Stephanie and Craig try to keep up with developments. After a brief update on earlier matters discussed in prior podcasts, they walk through things that caught their eyes in the new report by the Security Intelligence Review Committee (SIRC), CSIS's review body. Things like datasets, for example. ("That old chestnut!" -- sorry National Security Law Podcast). They then talk two trials that should be in trial court, but aren't yet, really: Peshdary (a terrorism case, started but now adjourned) and Huang (an espionage case, not even started). Feel free to stare into the middle distance as Craig waxes on about the intel to evidence issues in these two cases, based on recent superior court and Federal Court of Appeal decisions. They end with a few words on a new civil lawsuit launched against Canada and alleging negligence in relation to the 2016 death in a terror bombing in Afghanistan of Nepalese Ghurka security forces retained to provide security at the Canadian embassy.