David Johnston finds a middle ground in his interim report on foreign interference
THE FOREIGN INTERFERENCE INTERIM REPORT
We are going to focus today in some detail on the key elements of the First Report of the Independent Special Rapporteur (ISR), David Johnston, on Foreign Interference.
We turn first to the Executive Summary, where Johnston lays out his key conclusions.
Foreign Interference is happening in Canada.
Foreign governments are undoubtedly attempting to influence candidates and voters in Canada. While much has been done already, more remains to be done promptly to strengthen our capacity to detect, deter and counter foreign interference in our elections.
Leaked materials were misconstrued in some media reports
When viewed in full context with all of the relevant intelligence, several leaked materials that raised legitimate questions turn out to have been misconstrued in some media reports, presumably because of the lack of this context.
Systemic shortcomings, not ministerial negligence found
There are serious shortcomings in the way intelligence is communicated and processed from security agencies through to government, but no examples have been identified of Ministers, the Prime Minister or their offices knowingly or negligently failing to act on intelligence, advice or recommendations.
A public inquiry is not the best way forward
A further public process is required to address issues relating to foreign interference, but there should not and need not be a separate Public Inquiry. A Public Inquiry examining the leaked materials could not be undertaken in public given the sensitivity of the intelligence.
However, public hearings on the serious governance and policy issues identified to date should and will be held, at the earliest possible date, as part of the second phase of my mandate.
Conclusions on media allegations should be further reviewed
David Johnston writes:
The conclusions concerning the media allegations, including the confidential annex to my report, should be referred to and reviewed by the National Security and Intelligence Committee of Parliamentarians (NSICOP) and the National Security and Intelligence Review Committee (NSIRA), and they should report publicly if they reach different conclusions.
Regarding the two bodies referenced, David Johnston explains:
NSICOP is comprised of Members of Parliament from the Liberal Party of Canada (LPC), Conservative Party of Canada (CPC), Bloc Québécois, New Democratic Party (NDP) and one Independent Senator. NSIRA is comprised of experts in national security.
Johnston further recommends at page 53 of the interim report that
the leaders of the three opposition parties seek Top Secret security clearances so that they can review the confidential annex and observe NSICOP’s proceedings.
Four reasons for concluding a public inquiry is not the best way forward
The Executive Summary then sets out four reasons why, in the view of the Independent Special Rapporteur, a public inquiry is not recommended.
Duplication and delay
First: In my view, a person leading a Public Inquiry would be unlikely to learn more about who knew what, when, and what was done with it, than has been made available to me. Duplicating this effort would not be productive and would lead to delay in addressing the issues.
Public inquiry on media allegations would not be public
Second: Any public inquiry into the factual questions – who knew what, when, and what was done with it regarding foreign interference – could not be held in public. Thus, the Commissioner would be left in the same position as I – reviewing material in private and unable to provide any greater transparency than what I am able to provide in this report.
Most serious media allegations are unsupported by the evidence
Third: There is no convincing evidence to support the most serious allegations made about the government’s failure to act on specific instances of foreign interference in respect of the elections of 2019 or 2021. The failures I have found relate to substantial gaps in the communication and processing of intelligence information as opposed to the Prime Minister, Ministers or senior officials ignoring intelligence or recommendations.
David Johnston continues:
A further review of the specific media allegations through a Public Inquiry would not advance our ability to amend these arrangements and strengthen our institutional capacity to detect, deter and counter foreign interference.
Public Inquiry mechanism not needed to consider how to improve public agencies’ ability to combat foreign interference
Fourth, while we could launch a Public Inquiry on the issues I am required to address for my October report… there would be a clear overlap with the work I have already started doing, and there is no reason to think the additional powers available to a Commissioner (e.g., to subpoena witnesses or take evidence under oath) are required for that work.
Johnston therefore concludes:
It is more timely and effective to complete the work already underway so that the government, Parliament and the public will have the benefit of this review and advice at the earliest possible date.
Delay would be contrary to the public interest.
Independent intelligence expert Wesley Wark assesses Interim Report
In a 24 May 2023 substack.com National Security and Intelligence Newsletter entitled Mr. Johnston surprises himself (and subtitled “And us”), independent expert and professor emeritus Wesley Wark assesses David Johnston’s interim report, writing:
In his first public report, issued on May 23, [David Johnston] resisted enormous pressure from opposition politicians and media pundits to call a public (judicial) inquiry; he resisted his own initial inclination on taking the job—that a public inquiry had to be the way forward to ensure public confidence in Canada’s ability to safeguard its electoral processes and democracy.
Wark begins with Johnston’s arguments against a public inquiry. The first is
the inherent contradiction of pursuing a public inquiry when much of the matter for study would involve sensitive intelligence that cannot be revealed in public.
The second reason he cites is that Johnston
doesn’t see any value in holding a public inquiry [much of which would not be public] to explore faulty media narratives.
He then recaps a further argument against a public inquiry:
Mr. Johnston also found no evidence of any negligence on the part of the government when it came to addressing intelligence reports and no indication that the pursuit of a partisan political agenda played any role.
So he suggests that can be taken off the table as a focus for a public inquiry.
A better, faster way forward through public hearings
On the novel recommendation of public hearings, Wark writes:
[In Johnston’s view] there is a better, faster way to advance public understanding of the threat of foreign interference and come up with recommendations for fixing whatever is broken in the government national security and intelligence system.
That better way suggested by Johnston is a parallel process of public hearings, more informal, less guided by legal strictures and legal issues.
Wark characterizes this approach as “Mr. Johnston’s surprise middle way not spelled out in his terms of reference.”
Public hearings won’t allow for witnesses to be subpoenaed or classified documents to be produced. Johnston believes these powers are not necessary. It will allow for open discussion and it can be run quickly.
While Professor Wark rightly predicts that these “cogent reasons” will likely not sway opposition politicians and those in the media “who have long made up their minds about the need for a public inquiry,” in his view:
Public hearings could be a significant step forward in improving something that successive governments have largely failed at—which is national security transparency.
He therefore concludes, and we agree, that
Mr. Johnston deserves credit for surprising himself and surprising us. The rest of his mandate, which runs until October, will be taken up by public hearings.
The faulty media narratives on foreign interference in Canada
Before considering the government, opposition and public responses to this report, we want to spend a bit more time on the “faulty media narratives,” to use Wesley Wark’s term, that underlie the opposition calls, and apparent strong public support for, a public inquiry into foreign interference.
Readers are especially encouraged to read those sections of the interim report on pages 20-28 that review the principal allegations of foreign interference.
Below we consider three high-profile examples.
Alleged illegal campaign contribution scheme
On page 26 of the interim report, the ISR addresses the alleged illegal campaign contribution scheme referenced in a 17 February 2023 Globe and Mail article which included this statement:
Sympathetic donors are also encouraged to provide campaign contributions to candidates favoured by China – donations for which they receive a tax credit from the federal government. Then, the CSIS report from Dec. 20, 2021 says, political campaigns quietly, and illegally, return part of the contribution – “the difference between the original donation and the government’s refund” – back to the donors.
With respect to this allegation David Johnston writes:
I have reviewed the intelligence relating to this allegation, interviewed CSIS officials, NSIA [National Security Advisor] Thomas, past NSIAs, security personnel in the PCO, and the Panel of Five Deputy Ministers from the 2021 Election, as well as the Prime Minister and relevant Ministers.
On the basis of this review, Johnston concludes:
If there were credible evidence to justify an investigation, it would be referred to the Commissioner of Canada Elections. However, CSIS has not collected intelligence showing this [illegal] activity is actually occurring.
Han Dong and the “two Michaels” allegation
Also on page 26 of the interim report is Johnston’s consideration of the explosive allegation in a Global News article of 22 March 2023 that Liberal MP “Han Dong advised the PRC [People’s Republic of China] Consulate to extend the detention of the “two Michaels”.”
There has been considerable media attention about an alleged transcript of this conversation. I have reviewed the same intelligence report that was provided to the Prime Minister relating to this allegation, which I am advised is the only intelligence that speaks to this issue.
The allegation is false. Mr. Dong discussed the “two Michaels” with a PRC official, but did not suggest to the official that the PRC extend their detention….
Ministers and the Prime Minister …. received no recommendations about this allegation as it is false.
Note that Johnston also comments on the “very adverse effect” of this false allegation on Mr. Dong, who left the Liberal caucus to sit as an independent while the matter was being investigated. Dong is suing Global News over the report.
The Canadian Press reported on Wednesday that, with respect to Mr. Dong’s return to the Liberal caucus, Prime Minister Trudeau stated:
It’s his choice but I look forward to that conversation.
The Canadian Press also reported that Mr. Dong feels “vindicated” by Johnston’s report and that he “absolutely” wants to get back to caucus.
China’s alleged targeting of Michael Chong and his family
On page 27 of the interim report, Johnston considers the allegations in a Globe and Mail article of 1 May 2023 that
Chinese officials have taken actions to target [Conservative MP] Michael Chong, his family and other MPs and their families.
There are indications that PRC officials contemplated action directed at both Chinese-Canadian MPs and their family members in China and sought to build profiles on others.
However, Johnston further states:
There is no intelligence indicating that the PRC took steps to threaten his family. There is intelligence indicating they were looking for information.
Serious breakdown in communication
Johnston goes on to describe the shockingly bungled efforts by CSIS to properly communicate this situation to the Minister of Public Safety and to Mr. Chong,
including emailing the Minister of Public Safety on a Top Secret email network that he could not access and providing Michael Chong with a briefing that did not include “the detail with respect to his family”.
Johnston comments that this episode is
certainly the most prominent, but not the only example of poor information flow and processing between agencies, the public service and Ministers.
Johnston further indicates that the Minister of Public Safety, on 16 May 2023, issued to CSIS a new Ministerial Direction on Threats to the Security of Canada Directed at Parliament and Parliamentarians directing CSIS to
seek, wherever possible, to ensure that Parliamentarians are informed of threats to the security of Canada directed at them, and to inform the Minister of Public Safety of such threats in a timely manner.
And what about the media itself?
In Professor Wark’s view, and we agree, the findings in the interim report amount to
serious criticism here of how media organizations with access to leaked material have reported their stories. Something for the media to digest. Let’s see if they do.
He then quotes Bob Fife and Steve Chase in a recent Globe and Mail article, where they assert:
The Johnston findings did not dispute a series of reports by The Globe and Mail on Chinese foreign influence in Canada, including Beijing’s targeting of Mr. Chong or China’s efforts to influence the 2021 election.
But, as Professor Wark points out and we have illustrated above, Johnston’s report
did exactly that and called attention, in particular, to exaggerated construals in the Globe and Mail’s key February 17, 2023 report on alleged Chinese interference in the federal election in 2021.
Not to mention the alleged “targeting of Mr. Chong,” discussed above.
Government and opposition responses to the interim report
CBC reported on 23 May 2023 that Prime Minister Trudeau will follow the interim report recommendation and not call a public (judicial) inquiry. The opposition parties, however, continue to demand a public inquiry, with the Conservative leader, Pierre Poilievre, further calling on NDP leader Jagmeet Singh to “force an inquiry”.
CBC reports Singh pledging
to use all tools available to pressure the government for an inquiry.
He did not, however, commit to pulling out of the supply and confidence agreement with the Liberals in the House of Commons, setting out the terms of NDP support for the Liberal minority government.
Opposition response to the security briefing offer
Prime Minister Trudeau also accepted Johnston’s recommendation to offer the leaders of the three opposition parties the ability to seek Top Secret security clearances so that they can review Johnston’s confidential annex on the media allegations of interference and observe the proceedings of the National Security and Intelligence Committee of Parliamentarians (NSICOP) to review his findings therein.
The leaders of the two largest federal opposition parties, the Conservatives and the Bloc Quebecois, have rejected this offer, with Bloc Quebecois Leader Yves-Francois Blanchet stating:
It’s a trap…. If you want to see it all, you cannot say anything or do anything with that.
Poilievre, for his part, has declared that he
will not be silenced.
The leader of the NDP, Jagmeet Singh, has accepted the offer, but followed it up with a letter asking that the two briefing spots not taken up by Poilievre and Blanchet be offered to members of his team that would accompany him on the briefings.
He further stated in the letter:
I expect that I would be able to speak … freely about my conclusions based on the intelligence I am allowed to view and that my ability to be critical of the government’s actions will not be constrained….
I will be seeking assurances on this point in writing.
To be or not to be constrained by the facts
David Johnston, in his report, addresses possible concerns of the opposition leaders about the constraints of a confidential briefing, writing in part:
While I recognize that in normal political circumstances an Opposition Leader may not want to be subject to the constraints of the SOIA [Security of Information Act], this matter is too important for anyone aspiring to lead the country to intentionally maintain a veil of ignorance on these matters.
While political parties may disagree about policy and priorities, they should do so from a common understanding of the true facts, not as speculated or hypothesized from media reports based on leaks of partial information.
But let us not underestimate the desire of the Conservative and Bloc leaders to maintain their hyper-partisan focus on media narratives that disadvantage the government of the day, whatever the actual truth of the matter.
What about the “total gag” argument?
The Johnston report has concluded that the media reports based on the leaked documents were misleading at best, completely false in one case, and in all cases did not provide evidence of serious foreign interference that had been left unaddressed by the government.
All opposition leaders are invited to review the entirety of the information (including classified portions) on which this conclusion was reached. They will then be free to say that, having had this full review, they each agree or disagree with the conclusions the report has reached in respect of them, including their veracity and whether or not a public inquiry is needed to further examine them (in private).
How will this process constrain the opposition leaders?
As just noted above, the opposition leaders are free to voice a conclusion different from that reached by Johnston. They cannot, however, refer to specific classified information on which they base their conclusion. But they cannot do this now, since they are unaware of it (except for the leaked portions that give an incomplete and misleading view of the actual situation).
If, on the other hand, they agree with Johnston’s conclusions regarding the media allegations, they will have two choices:
(1) They can continue to repeat allegations they now know to be false or exaggerated or misconstrued; or
(2) they can focus on the serious systemic problems in addressing foreign interference that the report uncovers and offer views on how they might be remedied, during the public hearings, in parliamentary committees and elsewhere.
What about the NDP?
The Rideau Institute comments:
The least the leader of the NDP, the honourable Jagmeet Singh, can do is to obtain the classified briefings as soon as possible. If they support the conclusion that the Johnston report has reached on why it makes no sense to have a public (judicial) inquiry to get to the bottom of the allegations from the leaks – when it cannot possibly do so in public, and which has already been done in private – then he should muster the courage to change his position on the need for a public inquiry.
Alternatively, he will need to clearly explain why a public inquiry is preferable to the public hearings that the Independent Special Rapporteur will undertake in the second part of his mandate to address the systemic, not political, problems that his interim report has revealed.
National security challenges require a grown-up approach
Professor Wesley Wark drew particular attention to this statement in the interim report:
Canada requires a more sophisticated approach to national security, designed for the current challenges. This includes a less politicized environment to discuss national security issues.
As for the “politicized environment” currently surrounding this issue, the latest Angus Reid Institute poll on the merits of a public inquiry indicates that a majority favour such an inquiry, but also shows
deep political chasms dividing Canadians on the issue of attempted meddling by the Chinese government, and Ottawa’s reaction to it.
We call on all opposition leaders to hold in abeyance their demand for a public inquiry until they have received a confidential briefing on the entirety of the evidence available regarding the unsubstantiated media allegations. In short, we call on them to act in accordance with the facts, not political posturing, on a serious matter of national security.
The public deserves no less.
Photo credit: Wikimedia (flags of China and Canada)