Armed Forces, DND suing watchdog to block publication of critical report
OTTAWA — The Department of National Defence and Canadian Forces are suing an intelligence watchdog to prevent it from releasing without further redactions a review that found that some of their human intelligence source handling activities may break the law.
In a lawsuit filed in late August, both federal bodies requested a Federal Court judge quash the National Security and Intelligence Review Agency’s (NSIRA) decision to release a redacted version of a 2023 review under access to information laws.
They argue that NSIRA acted “unreasonably” when it did not implement all their requested redactions to what they say is information injurious to national defence or protected by solicitor-client privilege.
The 2023 report at issue cast a critical look on the Department of National Defence’s (DND) and Canadian Armed Forces’ (CAF) program overseeing the handling of human sources of intelligence.
The case is likely to be a legal test of what government information is considered so sensitive that it cannot be disclosed by an intelligence review agency to protect national defence. It is also a test of how much discretion NSIRA has to refuse redactions requested by organizations it reviews before publishing a report publicly.
Civil rights and transparency advocates frequently complain that the government overclassifies documents or uses blanket national security exemptions to avoid disclosing information.
NSIRA has not yet filed its response to the lawsuit. “NSIRA remains committed to the principles of transparency, accountability, and the rule of law in all aspects of its mandate,” an NSIRA spokesperson said via email Thursday evening.
A brief summary of the investigation published in NSIRA’s 2023 annual report noted troubling findings about the program, including problems with CAF’s duty of care for its sources, and shortcomings in the information about human source-handling operations provided to Armed Forces commanders and the minister of National Defence.
But a redacted version of the classified report provided to government in December 2023 has not yet been released. National Post requested a copy of the report via an access to information request (ATIP) in September 2024.
In their lawsuit, DND and CAF say that NSIRA was slated to release a redacted version of the report via ATIP last month, after over 18 months of back-and-forth between both federal bodies and NSIRA over what sensitive information should be blacked out before release.
But days before the redacted document was released, DND and CAF sued NSIRA in Federal Court to block its publication.
In the lawsuit, the federal bodies claim that NSIRA rejected a “significant number” of their requested redactions to the report before publication. They also claim that they were never able to reach a final agreement with NSIRA on the “appropriate redactions.”
They argue that NSIRA made a legal mistake when it refused the requested redactions, which CAF and DND say cover information that can’t be released because it either would be injurious to national defence or is covered by solicitor-client privilege.
They also accuse NSIRA of acting without jurisdiction if it publishes the report online without the requested additional redactions.
DND and CAF are asking a Federal Court judge to quash NSIRA’s decision to publish the existing redacted report, and to direct the review agency to allow both federal bodies to make more arguments about redactions.
They also request an injunction barring publication of the report until the Federal Court renders its decision.
“ The risks to national defence, and to the (government), in the event of disclosure or publication are significant and must be properly weighed by this Court. The weighing of risk by NSIRA in the decision at issue amounts to an unreasonable and/or improper exercise of its discretion,” reads the lawsuit.
The summary of the review published in the 2023 annual review shows that NSIRA made eight recommendations to DND and CAF about their human source handling program .
The recommendations were to address issues such as CAF commanders not always being given “accurate, consistent, and objective information” when they evaluated the risk of engaging with particular sources.
The review also found that the organization’s rules allowed source handling activities that may be illegal. “ These risks arise particularly in relation to sources associated with terrorist groups,” reads the summary of the report.
There were also gaps in DND and CAF’s duty of care provision to sources, the report found, and the organizations should implement more measures to ensure the welfare and protection of their human sources.
NSIRA also concluded that the Minister of National Defence was not being given enough information on human source-handling operations to be fully accountable to Parliament.
National Post
cnardi@postmedia.com
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