More stringent oversight of military intelligence at DND in limbo

OTTAWA — National Defence has been looking at ways to introduce more stringent oversight of its intelligence operations, but “fiscal restraint” may prevent the department from implementing the preferred option.

A series of internal documents and slide presentations, obtained by The Canadian Press under access-to-information legislation, show the head of defence intelligence ordered the exhaustive, independent review — which was conducted in the wake of the scandal involving navy sub-Lt. Jeffery Delisle, who was convicted of spying for the Russians.

Unlike the Canadian Security Intelligence Service and the Communications Security Establishment, there is no direct civilian oversight body to review the actions and operations of military agents, who conduct investigations into possible threats against the Forces both overseas and on Canadian soil.

The powers of intelligence services have come under the microscope following allegations of National Security Agency eavesdropping in the U.S., and the bombshell revelations of former contractor Edward Snowden.

Closer to home, CSE has faced questions about its activities, and the Harper government has indicated it intends to introduce legislation giving law enforcement more tools to track suspected terrorists.

The draft defence intelligence review lays out four options, of which the preferred would be a permanent, independent review board reporting directly to the minister and taking its authority from the federal Inquiries Act.

But in recommending the idea, the report noted defence may have to accept a watered-down version in the form of a part-time review team — a so-called hybrid option — that would be appointed for external reviews when necessary.

The assessment said they recognized that “in a period of fiscal restraint and downsizing” a permanent review team might not be possible and that the government might want to “avoid the challenges and costs” of setting up the body.

The report underscored the need for a review body by highlighting a recent military intelligence operation where the minister, when authorizing it, stipulated that it must be the “subject of independent review at least every 12 months” and defence had to hire an outside consultant three times to live up to the demand.

A spokesman for the defence intelligence command was asked whether anything was done with the recommendations, but did not answer the questions directly.

Instead, Capt. Travis Smyth noted that their operations and activities were monitored by the chief of defence staff, the military’s top brass and the department’s chief of review services.

They could also be subject to review by the auditor general and the privacy commissioner, he said.

“All defence intelligence activities are conducted in accordance with applicable Canadian and international laws, as well as government of Canada ministerial policies and directives,” Smyth said in an email.

Stuart Farson, an intelligence expert at Simon Fraser University, said the government should not be afraid of more oversight because it will give them assurance that not only are military operatives and activities within the law, but they’re also effective.

“Unless you’ve got really good oversight, you’re wasting your money,” said Farson, an adjunct professor who at one time led the research team for a special House of Commons committee that looked into the law governing CSIS. “Trying to skimp on the overnight question likely doesn’t get you very much for it.”

The independent defence review noted that there were gaps in the policy and that while the minister issues his expectations and marching orders once a year, “strategic direction for (defence intelligence) activities is otherwise weak, outdated or adhoc.”

There is no ministerial directive on the conduct of defence intelligence activities, the report noted.

There was also concern raised that training and professional development programs for military spies are not keeping pace, and it noted that the U.S., Britain and Australian have mandatory training on “ethics and conduct” and the “laws and regulation governing intelligence activities” in each of their countries.

It is significant because those Canadian officers regularly assist law enforcement and the assessment noted the military’s reach “includes a wider spectrum of intelligence capabilities than those undertaken by CSIS of CSEC.”

Until the Delisle espionage case in 2013, the activities of defence operatives flew below the radar, and that’s despite a growing uneasiness among some of Ottawa’s most powerful watchdogs, including the auditor general and the privacy commissioner.

In 2009, former auditor Sheila Fraser noted that National Defence had “created one of the largest intelligence capabilities in the government” when it overhauled the military intelligence branch in 2004, and yet “there was still no dedicated independent review of National Defence’s intelligence functions.”

That same year, the privacy commissioner noted before a Commons committee defence intelligence operations “bear little scrutiny.”

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