National Security Oversight Research Articles

Judicial Biography in the National Security Constitution: Lord Diplock and a ‘Rather Silly Little Secret Racket’

This article considers the extra‐judicial work of Lord Diplock in the domain of national security in the context of his life and judicial work. It first considers briefly the role of judicial biography in understanding the work of judges and then the particular considerations which apply to such biography in the context of national security law and practice. The following sections consider Lord Diplock's role in national security oversight, emphasising the wide range of issues with a national security dimension which Diplock was called upon to consider. It then seeks to shed light on the reasons for which he was repeatedly entrusted by the government to consider matters of the utmost sensitivity by turning back to his early life, his service during the second world war, and his work thereafter.

Reviewing Bill C-59, An Act Respecting National Security Matters 2017: What’s new, what’s out, and what’s different from Bill C-51, A National Security Act 2015?

In 2015, Canada’s national security law landscape received some long-overdue attention in the form of Bill C-51, the Anti-Terrorism Act 2015. It was the culmination of a series of smaller initiatives that had given attention to national security law in Canada, but also a direct response to two terrorist attacks that left two Canadians dead in October 2014. Bill C-51 did indeed reinvigorate discussions around national security law in Canada, but in so doing it became a lightning rod for criticism. Bill C-59, An Act Respecting National Security Matters 2017 was not passed until June 2019, but it was nevertheless a direct response to Bill C-51 and the criticisms it faced. Yet for the most part, Bill C-59 amended but did not repeal the important new powers found in Bill C-51, even the most controversial powers; instead, Bill C-59 can be seen, in part, as a technical-legal Bill that largely entrenched the powers first conceived of in Bill C-51 by putting them on firmer legal (constitutional) footing. But Bill C-59 was also much more than a series of legal/constitutional improvements: its legislative scope went much further afield from the Bill C-51 regime, amending the authorities of agencies—like the Communications Security Establishment—that had been untouched by Bill C-51, while also greatly expanding national security oversight and review through the creation of important new bodies. The purpose of this paper is to compare these two important pieces of national security legislation with a view to explaining what these legislation reforms did, why the reforms were undertaken, and to identify the relative strengths and weaknesses of the most controversial of the reforms under each Bill. The idea is to offer an overview and comparison of these important national security legislative initiatives and, in so doing, explain where Canada stands today, in the wake of this massive legislative overhaul. But by identifying what has already been addressed, this also allows us to identify next-steps and, in particular, where should be the focus of future legislative reforms in the area of national security. Three recommendations then flow from this conclusion: first, national security legislation must be reformed with greater consistency than has happened in the past; second, as an immediate matter of priority, Canada must address its “intelligence-to-evidence” problem, that is the system by which it converts—or fails to convert—raw intelligence into the sort of evidence usable by courts of law; and third, enforcement of Canada’s national security laws must now take priority, in particular by prosecuting returning foreign fighters and far right extremists where their activities meet the threshold of a terrorism offence, as well as terrorist financing to a greater degree than Canada has seen to date.

Freedom of information legislation and the democratic oversight narrative

ABSTRACT Oversight of national security operations is often presented as vital to ensuring military and intelligence personnel of democratic states abide by the rule of law. Collectively, such portrayals place stock in what this paper conceptualizes as the democratic oversight narrative. In the US and the UK, freedom of information legislation is presented as a tool giving the democratic oversight narrative real-world form. This occurs, it is argued, because such legislation allows those (such as legislators and the media) responsible for national security oversight access to information about said operations in order to mediate between citizens and states. In recent years, documents containing implicatory information have been released by the US and the UK, but often only after prolonged legal cases and significant obstruction by both states. Drawing on documents pertaining to processes set in motion by the American Civil Liberties Union and the UK All-Party Parliamentary Group on Extraordinary Rendition focused on obtaining information about War on Terror era detainee abuse, this paper argues those engaged in oversight of US and UK national security operations are faced with unduly restrictive barriers and impediments when seeking the disclosure of potentially implicatory information that should, via oversight tools such as freedom of information processes, legitimately be released. These barriers and impediments arise, it is shown, because both states can counter oversight by drawing on an opposing set of tools to stop (or at least stall) the release of such information.

Democracy declassified: the secrecy dilemma in national security

Acknowledgements Introduction Contents I Democracy Classified: The Uses of Secrecy 1 Theories of Democratic Transparency and Foreign Policy Success 2 Not So Exceptional: The Theory, Uses, and Reality of National Security Secrecy in Democracies II The Abuses of Secrecy and Public Consent 3 The Potential Abuses of National Security Secrecy 4 The Consequences of Potential Abuse for Public Consent III Democracy Declassified: the Dilemma and Oversight 5 Solving the Secrecy Dilemma 6 The Consequences of National Security Oversight in Democracies IV The Evidence 7 A View of National Security Oversight Institutions 8 Revealing Evidence: Support, Spending and Success V Conclusion 9 Implications and Innovations Appendices: Formal Models, Data and Statistical Result Bibliography

Parliamentary Oversight of Security and Intelligence Agencies in the European Union

This study for the European Parliament evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of in-depth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

A Boom with Review: How Retrospective Oversight Increases the Foreign Policy Ability of Democracies

In the ongoing debate concerning whether democracies can carry out effective national security policy, the role of transparency costs has received little attention. I argue for a more nuanced understanding of how some democracies that possess specific investigative institutions, such as national security–relevant freedom of information laws, legislative oversight powers, and press freedoms, are able to avoid the problems of which democracy skeptics warn. Using a new dataset on national security accountability institutions in democracies within a Bradley‐Terry framework, I find that national security oversight mechanisms raise the probability that a democracy wins international disputes as well as increasing the expected number of enemy casualties, as compared to democracies that lack effective oversight. Contra previous theories of foreign policy efficacy, I find that the chances for democratic foreign policy success are maximized when competitive elections are linked to institutions that increase the retrospective revelation of previously classified information.

Buying national security: how America plans and pays for its global role and safety at home

The tools of American statecraft—defense, diplomacy, foreign and security assistance, homeland security and intelligence—are rarely examined together. Adams and Williams fill this gap by examining how these tools work, how they are planned for, and how they are budgeted. Seeing policy through the lens of the budget can help decision makers and ordinary citizens discern the genuine priorities of national leaders from the oftentimes illusory ones portrayed in rhetoric. Simply put, policies and strategies cannot be carried out without a corresponding allocation of resources. Buying National Security weaves a tapestry around the institutions, organizations, tools, and processes that support planning and resource allocation across the breadth of the American national security enterprise. The authors analyze the planning and resource integration activities across agencies of the Executive branch as well as examine the structure and processes the Congress uses to carry out its national security oversight and budgetary responsibilities. Finally, they review the adequacy of the current structures and process and evaluate proposals for ways both might be reformed to fit the demands of the 21st century security environment.

Integrating Hospitals into Community Emergency Preparedness Planning

Strong community linkages are essential to a health care organization's overall preparedness for emergencies. To assess community emergency preparedness linkages among hospitals, public health officials, and first responders and to investigate the influence of community hazards, previous preparation for an event requiring national security oversight, and experience responding to actual disasters. With expert advice from an advisory panel, a mailed questionnaire was used to assess linkage issues related to training and drills, equipment, surveillance, laboratory testing, surge capacity, incident management, and communication. A simple random sample of 1750 U.S. medical-surgical hospitals. Of 678 hospital representatives that agreed to participate, 575 (33%) completed the questionnaire in early 2004. Respondents were hospital personnel responsible for environmental safety, emergency management, infection control, administration, emergency services, and security. Prevalence and breadth of participation in community-wide planning; examination of 17 basic elements in a weighted analysis. In a weighted analysis, most hospitals (88.2% [95% CI, 84.1% to 92.3%]) engaged in community-wide drills and exercises, and most (82.2% [CI, 77.8% to 86.5%]) conducted a collaborative threat and vulnerability analysis with community responders. Of all respondents, 57.3% (CI, 52.1% to 62.5%) reported that their community plans addressed the hospital's need for additional supplies and equipment, and 73.0% (CI, 68.1% to 77.9%) reported that decontamination capacity needs were addressed. Fewer reported a direct link to the Health Alert Network (54.4% [CI, 49.3% to 59.5%]) and around-the-clock access to a live voice from a public health department (40.0% [CI, 35.0% to 45.0%]). Performance on many of 17 basic elements was better in large and urban hospitals and was associated with a high number of perceived hazards, previous national security event preparation, and experience in actual response. Responses reflect hospitals' self-perception of linkages. The quality of linkages and the extent of possible biases favoring positive responses were not assessed. In this baseline assessment, most hospitals reported substantial integration. However, results suggest that relationships between hospitals, public health departments, and other critical response entities are not adequately robust. Suggestions for enhancing linkages are discussed.