Stephanie and Craig catch up on issues from the last few weeks: a few developments in anti-terrorism trials; the new RCMP commissioner; and IMSI catchers (again). Then they talk about national security aspects in the federal Budget, with a focus on cyber and the no fly list. They work in a chat about "going dark" and lawful access. And then they debate whether the National Security and Intelligence Committee of Parliamentarians should review L'Affaire Atwal and the PM's India visit.
Stephanie and Craig decided to prepare a supplemental podcast today, focusing on fast-moving events in the United Kingdom in the wake of an apparent assassination attempt of a former Russian intelligence officer, using a Russian chemical weapon. They don't have all the facts, of course, but enough has been said and alleged now to walk through some of the international law issues.
If you are playing Intrepid podcast's drinking game, better stick to water. It's our first deep dive into "intelligence-to-evidence", something we keep mentioning and never explain. Because many or upcoming guests will have views on this, we figured we should do a run through of the dilemmas. This issue isn't as obscure as it sounds -- in fact, Craig thinks intelligence-to-evidence is the tail that wags Canada's national security dog. So in this episode we talk about intelligence-to-evidence dilemmas: what are they; should you care; can they be fixed?
Intrepid Podcast is back! Today, Stephanie and Craig dig into the new CSIS export report on foreign influence, and riff off a Globe and Mail article containing warnings from a NATO expert predicting Russian interference in the 2019 federal election. Our topic is influence operations, and then a closer look at who has been doing what in this space since the 2016 US elections, the Mueller indictments (and Craig still needs to learn how to pronounce Mr Mueller's name) as well as a march through the various legal responses in cyber influence activities in international and Canadian law. We weave in discussion of CSE's proposed active cyber mandate and international law questions arising from it, and end with a plug for this weeks National Security Crisis Law Simulation at Georgetown law school. Go Team Canada!
Stephanie and Craig continue their "podsight" series with a conversation with David Anderson QC, the United Kingdom's independent review of antiterrorism law (2011-2017). David describes the role of his office -- and how it grew and affected both legislative and operational reform in the United Kingdom in the area of national security. The United Kingdom confronts many of the same dilemmas as Canada -- and David's insight into both the process and substance of national security law and policy sets the gold standard for evidence-based independent assessments on these matters. Topics covered in our podsight include, among others: the policy-process in national security; the role of parliamentary national security committee of parliamentarians; intercept authorities and surveillance; citizenship revocation; assurances against torture; and (it almost goes without saying) the relationship between police and intelligence services and intelligence-to-evidence.
Today, the Intrepid team circles back to anti-terrorism peace bonds as a Canadian anti-terrorism tool because of a new case, R. v. Ibrahim. Released last week, this is the first anti-terror peace bond to be contested on its merits -- and the government lost. Stephanie and Craig discuss how peace bonds work, their pros and cons, and what exactly happened in this case, and what it might mean.
In Episode 21, Stephanie and Craig launch a new Intrepid feature: "Podsights" from inside the Canadian security and intelligence communicate. The Communications Security Establishment's Dominic Rochon and Christopher Williams talk about: CSE's roles and functions; challenges it faces in the cyber and SIGNINT space; misunderstandings about its activities; changes bill C-59 will make to CSE's mandates; and what it's like to work at CSE (and how to come work for CSE). Thanks to Dominic and Christopher for spending an hour with us, and for the CSE rubber ducks. (yes you have to listen to figure that one out.)
Stephanie and Craig are back with Episode 20. Today, the Intrepid crew say a few words about the CSIS megatrends report that CP acquired through Access to Information Act, before launching into a discussion of the arduous (and doubtful) trials of Dr Hassan Diab -- and specifically, the French terrorism judicial process and the problems with Canada's extradition law. (The news is breaking as this is posted that Dr Diab has now returned to Canada). They also turn to another difficult case: the Crown's appeal in Korody and Nuttall (the "Canada Day" or "Victoria legislature" bomb plot). This is Canada's one and only case in which a trial court concluded the police entrapped a terrorism accused. Discussion of this matter produces a vigorous exchange of views about the merits of the entrapment finding. But Stephanie and Craig are still on speaking terms and back next week.
Stephanie and Craig kept talking on Thursday, after Episode 18 and went on to discuss some of the other things they will be watching in the Canadian national security law and policy space in 2018. On the menu: the fate of C-59; cyber security and lawful access issues; a mustering of trials for terrorism (in law or name) matters; and, of course, whether Spy Kids will end up at the Supreme Court of Canada. (Apologies for the HVAC background hum in the first 12 minutes or so)
Stephanie and Craig are back for their first pod for 2018. They catch up on late breaking developments in December: The Season of Reporting. Fresh off grading piles of papers and exams, they evaluate the 2017 Public Report on the Terrorist Threat to Canada. After being a bit cranky, they have their "only in Britain, pity" moment, comparing the Canadian (lack of) data with the information coming out the UK from the Intelligence and Security Committee of Parliamentarians and the recent report issued by the former independent reviewer of anti-terrorism law, David Anderson. This material and more inspires them to propose the substantive agenda for Canada's nascent National Security and Intelligence Committee of Parliamentarians. And then they end by discussing the Mel Cappe report on a review body for CBSA -- wondering, not least, why it took the access to information act to get that report out.
In the middle of night on December 29, 1837, Canadian militia commanded by a Royal Navy officer crossed the Niagara River to the United States and sank the Caroline, a steamboat being used by insurgents tied to the 1837 rebellion in Upper Canada. That incident, and the diplomatic understanding that settled it, have become the short-hand in international law for the “inherent right to self-defence” exercised by states in far-off places and different sorts of war. The Caroline is remembered today when drones kill terrorists and state leaders contemplate responses to militarily-threatening adversaries. But it is remembered by chance and not design, and often imperfectly. Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (Irwin Law, 2018), by Intrepid Podcast's own Craig Forcese, tells the story of the Caroline affair and the colourful characters who populated it. Along the way, it highlights the various ways in which the Caroline and self-defence have been used – and misused – in response to modern challenges in international relations. It is the history of how a forgotten conflict on an unruly frontier has redefined the right to war. In this special commemorative episode, marking the 180th anniversary of the Caroline's sinking, Stephanie introduces the subject, and Craig reads the preface and first chapter of his book, to be released in early 2018. In the meantime, you can follow @Cdr_Drew_RN on Twitter, as he live-tweets the events of December 1837, using the hashtag, #sinkingthecaroline.
In Episode 16, Stephanie and Craig circle back to the thorny problem of "foreign influenced activities". The team discussed this issue in passing in a prior episode, but in light of new developments in places like Australia, they though the time had arrived for a deeper discussion. The policy dilemmas are hard, the law is not all that useful, and we struggle in this country to talk about the issue without provoking political storms.
Stephanie and Craig lift their eyes from their piles of grading and launch into a discussion of today's new ministerial directions on information-sharing and mistreatment, issued for the Department of National Defence (including CSE) and Global Affairs Canada. And then they bravely go where no podcast ever should: into a discussion of warrants, production orders and four important new cases on wiretaps and data intercepts. Two Federal Court cases involving CSIS intercepts and two Supreme Court cases involving text messages. Together these cases show how Charter search and seizure rules are grappling with the new technological age. And then Craig goes on a bit about how chaotic our lawful access rules are. This episode definitely warrants eggnog and brandy.
A Podcast Called Intrepid (finally) reaches the end of bill C-59. Stephanie and Craig focus on the Criminal Code amendments: the parts of C-59 that can involve locking people up or otherwise constraining their liberty. They discussing changes to the bill C-51 speech crime and also "preventive detention" and "peace bonds" as well as the terrorism group listing process. Lots of important dilemmas are raised by these issues (although Craig doesn't think the expansive C-51 speech crime ever made any sense). Before the duo launch into the criminal law, they offer a few brief reflections on the C-59 process in front of the Commons Standing Committee on National Security and Public Safety. The MPs were asking hard questions on Tuesday!
Our first Intrepid Book Club. Oprah watch out, as Stephanie and Craig talk about some recommended recent reads in national security law and policy. Stephanie talks about Donald G. Mahar, Shattered Illusions: KGB Cold War Espionage in Canada, Lanham: Rowman & Littlefield, 2017; David E. Hoffman, The Billion Dollar Spy: The True Story of Cold War Espionage and Betrayal, New York: Doubleday, 2015; and, Thomas J. Christensen, The China Challenge: Shaping the Choices of a Rising Power, New York: W. W. Norton, 2015. Craig talks Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World, New York: Simon and Schuster, 2017; and, Dennis Molinaro, An Exceptional Law: Section 98 and the Emergency State, 1919-1936, Toronto: University of Toronto Press, 2017. Happy reading!
In this episode, Stephanie and Craig return to bill C-59 (almost through!). Their focus is on the Security of Canada Information Sharing Act -- a product of bill C-51, designed (controversially) to facilitate internal government information sharing of information tied to broad concept of activities that "undermine the security of Canada". The Intrepid crew talk about the need for information sharing in national security, the countervailing privacy issues, the controversies over C-51's SCISA and then what bill C-59 will do to it. Then, because it is starting to come up again, they circle back for a slightly longer discussion of a matter raised in episode 6: the proposed new way in which CSIS can collect and retain "datasets" of information broader than information strictly necessary for the purpose of investigating a threat to the security of Canada. This is a pretty technical pod involving detailed discussions of statutory language. But the devil is always in the details.
Stephanie and Craig stray from their march through bill C-59 to address an issue in the news this past week: targeted killing of foreign terrorist fighters in Syria and Iraq. Reports suggest some anti-Daesh coalition members have targeted their nationals (or supplied information about nationals to allies), ensuring they never come home. Canada denies it does the same. Could it? Should it? More generally, what will Canada do about returnees? Before getting to these questions, the Intrepid team also discusses new developments with the National Security and Intelligence Committee of Parliamentarians (good), the now-commenced parliamentary debate on C-59 (not so good) and some minor buzz about invoking the Emergencies Act in response to the opioid crisis (surprising).
A Podcast Called Intrepid reaches double-digits with Episode 10, on the C-59 reforms to CSIS threat reduction powers and a new surprise addition: CSIS immunity provisions for intelligence collection activities. Threat reduction (aka disruption) was a headline act in the infamous bill C-51 (2015) -- and Craig proves he cannot talk about this topic without launching into a full-scale rant. But C-59 pares away some of the excess and puts threat reduction on (at least a more) constitutional footing. Still, the scope of that threat reduction raises important policy issues, which Craig and Stephanie discuss. They then look at the complicated new regime for immunizing CSIS breaches of the law while CSIS is engaged in intelligence gathering. This is a different issue than threat reduction. The policy dilemmas in both areas are rich -- the Intrepid crew try to identify them, appreciating that there will a variety of opinions on many. Mostly because Craig is in full-flight, we grossly exceed the usual length of the podcast (sorry). Meanwhile, Stephanie gets an above-the-call-of-duty badge for repressing a bad chest cold and taking our 10th turn at Intrepid Studios.
In Episode 9, Stephanie and Craig return to bill C-59 to finish up discussion of the Communications Security Establishment. They focus on CSE's new cyber offensive ("active cyber") and defensive mandates and its assistance mandate to the Canadian Armed Forces. They ask about the policy and legal implications of CSE making things go "bang" in the cyber (and maybe the real) world.
In Episode 8, Stephanie and Craig wearily try to stay on top of headlines focusing on the new lawsuit filed Monday, stemming from CSIS's alleged questioning of a non-Canadian at GITMO; the percolating controversy over Canada's troubled no-fly list and the "No Fly Kids" issue; and two terror cases, one new and one given a new twist by a recent book by an FBI undercover agent.