26

National security v. Public interest


 

Last week, after receiving this response, I asked the Justice Department if it might provide specific answers to questions asked about the redaction of a 2006 field report that referenced abuse of a detainee in Afghanistan. Yesterday afternoon, after further prodding, an e-mail arrived.

The response provided last week stands.

So it seems that, given two months to explain itself, the best the government can offer is a general statement of its policy in this regard.

That would seem to invite, perhaps even encourage, us to imagine for ourselves how the government has applied its policy. So here goes.

In 2007, as part of a federal court proceeding, the government released a collection of documents to Amnesty International and the British Columbia Civil Liberties Association. Included in that was this document, a partially redacted field report provided in June 2006 by a sergeant in Afghanistan.

In December 2009, General Walter Natynczyk, the Chief of Defence Staff, announced that he had learned of a case in which an Afghan detainee taken into Canadian custody was in fact abused after being transferred to Afghan authorities. Natynczyk had previously said the detainee in this case had never been under Canadian control, but new information had come to Natynczyk’s attention.

The new information in this case was the same field report included in the documents provided to Amnesty International and the BCCLA. And, as part of his announcement, Natynczyk released an unredacted version of that report.

Unredacted, it read, in part, “We then photographed the individual prior to handing him over, to ensure that if the ANP did assault him, as has happened in the past, we would have a visual record of his condition.” When the document was released in 2007, much of that sentence was blacked out. In its redacted form, it read only, “We then photographed the individual prior to handing him over.”

Upon noting the difference, I asked officials in the offices of Defence Minister Peter MacKay and Gen. Natynczyk for an explanation. Two weeks later, still waiting for an answer, I presented the offices of MacKay and Natynczyk with more specific questions.

In regards to the redaction noted below, who oversaw, ordered or made that redaction? On what grounds was that reference to abuse redacted? Did those grounds no longer apply when Gen. Natynczyk disclosed the reference to abuse last week?

Those questions were apparently forwarded by Mr. MacKay’s office to the Justice Department. In early February, I took up the matter with the Justice Department myself and forwarded the questions and background to an official there. Two weeks later, the Justice Department sent along a response explaining how the department goes about the process of redaction. The “test,” as defined by the Federal Court, was explained to be as follows.

“First, the officials must determine whether the information sought to be disclosed is relevant or not to the litigation. If not, it is not necessary to proceed any further. Second, the officials must determine whether the disclosure of the information would be injurious to international relations, national defence or national security. Third, if the officials conclude that the disclosure of the information would result in injury, they must determine whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. The Department of Justice must balance the claim of injury that may be caused by the release of the information against the public interest of disclosing the information.”

As noted above, a request for specific responses to the questions asked was rebuffed.

How this is applicable to the situation in question is now obviously left to your and my interpretation. I assume that when the reference to “assault” and it having “happened in the past” was redacted in 2007, it was judged to be “injurious to international relations, national defence or national security.” I further assume that when the reference to “assault” and it having “happened in the past” was made public in 2009, it was because the “public interest in disclosure” was judged to outweigh the “public interest in non-disclosure.”

I assume then that the “public interest in disclosure” can, and in this case did, outweigh a claim to “national security.”

And with the House of Commons and the government still headed for a confrontation over the release of documents related to the treatment of Afghan detainees, with one side claiming Parliament’s precedence and the other asserting security concerns, this would seem to be a potentially relevant point. Or at least a point that raises further questions about how one judges notions like public interest and national security and how those notions are applied in practice.

The paperwork in question here—this field report in its two forms—has always seemed pivotal to the issues, claims and counterclaims raised by the matter of Afghan detainees, their treatment and Canada’s responsibility to them. It is perhaps only more important in light of the Justice Department’s response.


 

National security v. Public interest

  1. There is no basis for making a claim that the redacted portions were in any way a threat to national security. At least, none that I could come up with that I could justify and present to my boss in a similar circumstance. Well, nothing he wouldn't laugh at me for trying, anyway.

  2. "I assume then that the “public interest in disclosure” can, and in this case did, outweigh a claim to “national security.”

    Actually using your explanation, wouldn't the "public interest in disclosure outweigh the "injury to international relations"?

  3. Nevermind. Thinking about this more, the government is claiming national security. Carry on.

    • "National Security" is a catch all phrase used to denote "national security, national defence, or international relations" under s. 38 of the Canada Evidence Act, and similar privileges under the Access to Information act and Security of Information Act.

      So you are on the right track.

  4. Good for you Aaron for pursuing this extremely important matter. Clearly, the latest response confirms that the Government has no intention of following the ATIP Act in this instance, which sadly reflects its now-standard practice of not obeying any laws that it doesn't like.

    Personally, I am disheartened that we now have an official opposition leader who refuses to show any spine in these matters, so we have to expect that this kind of behaviour will continue from this scofflaw Government until it chooses to seek an election writ, which will no doubt happen as soon as it feels its chances for re-election are good.

    However, just because Ignatieff refuses to do his job doesn't mean media should not do their job, so I therefore applaud you for your work. I also commend Maclean's for letting reporters to do their jobs responsibly, in keeping with the finest traditions of independent Canadian journalism.

    • I'll echo what Standing By just wrote. javascript: postComment(1);

    • OK, I'll bite. What would you have the Liberals do that they are not doing already, i.e. force the government to call a special committee to investigate and hold hearings (in which we heard from Colvin and undcovered all of this), pressed for details every single day in QP despite stonewalling by the government, taking the unprecedented first step toward in a contempt of Parliament proceeding by passing a Parliamentary motion requiring the production of documents, threatening to pursue contempt of Parliament proceedings if an inquiry is not called. We wouldn't know about this but for the Liberals forcing the committee hearings.

      I'm not trying to be sarcastic. What precise action would you have Ignatieff or Layton take to move this along even more than they have already.

      • The system has a mechanism for this in a minority Parliament: you defeat the Government and force an election.

        I also think the outcome of an election now would probably be better for the opposition parties now than it will be in the fall, after Harper has been graciously given another 6 months to empty what is left in the Treasury to saturate the country with ads attacking opponents and promoting his 1982 Reaganomics agenda and the selected wedge issue culture wars he wants to ignite, where dividing people will produce the best partisan results for him.

        • I see. Yes, Ignatieff "refuses to do his job" because he hasn't defeated the government.

          Not sure how this was supposed to work though. Defeat the gov't – which he tried to do by the way but the Bloc and NDP propped Harper up – and we don't have the Afghan committee and don't learn about what Colvin had to say and therefore don't uncover all the other things we only found out as a result of that in late November and early December. We remain ignorant of the facts as we now know them.

          No, in our system, it is not just the ruling party that has a responsibility to Parliament. The opposition must act responsibly as well. I'll say to you what I say to Conservatives who try to claim that everything Harper does is OK as long as Harper maintains confidence: an election is not the only way we keep the government accountable and in a minority government, a responsible opposition treats it as a last resort. Because he finally started doing his job instead of calling for the defeat of the government, we are much closer to that now.

    • There's a faint, distant drumbeat I hear: the Liberals starting to talk about good government reforms in reaction to Harper's constant testing-of-the-envelope.

      I'm not getting my hopes up yet (the Liberals never miss an opportunity to miss an opportunity, as someone said here yesterday) but maybe, just maybe, the next Liberal election platform will focus on tightening the rules around prorogation, devolution of powers from the PMO, crisper election spending laws, stronger ATIP, etc.

      It's a platform that forces discussion on Harper's governing style while proposing reforms that will be very difficult for the Cons to match or even to demagogue. And I think there's enough general awareness that a campaign wouldn't necessarily need to start with a public education.

  5. This non answer about non answers referred over to the Justice Department makes me think that the Conservatives are looking for a way to deflect the question of privilege into the courts. They think that will make it go away like the Cadman tape, and the In and Out scandal.

    • Would these be the same judges that the Conservatives once criticized for being too Liberal? Interesting.

      • The aim would be the delay, not the result.

        • Exactly. And even if the result is against them, then they can complain about activist judges etc.

  6. Perhaps Jaime could chime in here. I will personally be very upset if the Conservatives have wasted our time and do not have some coherent, super-secret narative that ties together all this redaction, Holbrooke, Colvin, MacKay-sticking-neck-out-for-no-good-reason-with-foot-in-mouth (my apologies for the poor translation of the original German) etc.

    Perhaps this is just slap-stick comedy… if so a laugh track would be helpful. However, I do hope that it is a suspenseful mystery thriller, perhaps with a shadowy cameo by Ian Brodie near the end.

  7. Quite possible that's what they're doing. Harper has learned that one way to avoid following the law is to commence or force endless court proceedings using their limitless government legal budgets.

    The Kadr case shows that not only can and will they litigate for years to avoid following the law, they will even ignore Supreme Court rulings that fail to order them in explicit detail to act in a prescribed manner.

    I don't recall in my lifetime of observing politics, or in my reading of Canadian history, ever coming across a Canadian Government that routinely violated and/or simply refused to comply with laws passed by Parliament.

    Quite honestly, if Canadians were to re-elect this rogue government, then it's hard not to conclude that they will deserve the Government they will get.

  8. It's quite astonishing that with all of the really urgent stuff in yesterday's Throne Speech (like 'ungenderizing' our national anthem), the complexity and comprehensiveness of which required the government to close down parliament for two months in order to devote it's considerable resources to producing the awsomeness of it, that anyone would still be making a fuss about this. …damn journalists…

  9. Not in defense, but in fairness; Natynczyk's report outright accuses ANP of abuse or prisoners. Prior to any public or official report of proven cases of abuse, the release of that report or specifically that accusation would be damaging to our relation with Afghanistan. Also lets be honest, the public interest does not outweigh the need to damage our relation with a country we are operating militarily in.

    The question is more; what else is there to hide if the case of abuse has already been proven?

    • If I were to speculate (and I shall), it could be something along the lines of "Please do not tell us about the abuse of detainees any more. Thanks, Peter MacKay"

      Seriously, they have gone to such lengths to bury this that there has to be something truly damning in there, otherwise we would all have been educated about the fact that it was All the Liberals' Fault.

  10. Some clever parsing here Aaron. But…another question. How is it that Natynczyk is suddenly able to discover an unredacted report that previously was unavailable for the reasons cited? the public interest to disclose seems to be highly political does it not? Good on the general for disclosing it. [ didn't they fail to disclose to the MCC? Presumably the need to not disclose overrode the right of a legally constituted inquiry to get at the truth] But i'm curious how he managed to get the docs.
    Perhaps we are coming at this from the wrong perspective…it's not so much, or as much about our behaviour, as the need not to embarrass the Afghan gov't? I understand the impulse, but if it turns out this is all about protecting them, it hardly makes it any better than covering up for our mistakes…arguably it's a whole lot worse.

  11. The Department of Justice must balance the claim of injury that may be caused by the release of the information against the public interest of disclosing the information.”

    As noted above, a request for specific responses to the questions asked was rebuffed.
    ————————–

    I don't quite see how you can so resolutely state that the request was rebuffed. Afterall, how can you be certain that the balance wasn not overthrown had they given out the censored information?

    The minister's response deals with many aspects of the matter at hand (litigation, international relations, national security etc). All those factors INTERCHANGE, and that is of utmost importance.

    What may seem trivial to you may in deed not be trivial at all. This is a very sensitive matter (see reasons as outlined within the minister's response) and should not be seen otherwise.

  12. Under the Access to Information Act, the Department of Justice can claim national security issues on just about any request for information. For example, the Department released a nearly completely redacted copy of an Excel spreadsheet when a request was made for information regarding how the Finance Department calculated tax leakage when they decided to tax income trusts. The spreadsheet was redacted because it was felt by Justice that releasing the information in its entirety, could pose a threat to national security. How this is possible is beyond me but it shows that Justice, under the guidance of government, can use just about any excuse to redact just about any document that is requested under the Access to Information Act.

    http://viableopposition.blogspot.com/

  13. Under the Access to Information Act, the Department of Justice can claim national security issues on just about any request for information. For example, the Department released a nearly completely redacted copy of an Excel spreadsheet when a request was made for information regarding how the Finance Department calculated tax leakage when they decided to tax income trusts. The spreadsheet was redacted because it was felt by Justice that releasing the information in its entirety, could pose a threat to national security. How this is possible is beyond me but it shows that Justice, under the guidance of government, can use just about any excuse to redact just about any document that is requested under the Access to Information Act.

    http://viableopposition.blogspot.com/

  14. Under the Access to Information Act, the Department of Justice can claim national security issues on just about any request for information. For example, the Department released a nearly completely redacted copy of an Excel spreadsheet when a request was made for information regarding how the Finance Department calculated tax leakage when they decided to tax income trusts. The spreadsheet was redacted because it was felt by Justice that releasing the information in its entirety, could pose a threat to national security. How this is possible is beyond me but it shows that Justice, under the guidance of government, can use just about any excuse to redact just about any document that is requested under the Access to Information Act.

    http://viableopposition.blogspot.com/

  15. Under the Access to Information Act, the Department of Justice can claim national security issues on just about any request for information. For example, the Department released a nearly completely redacted copy of an Excel spreadsheet when a request was made for information regarding how the Finance Department calculated tax leakage when they decided to tax income trusts. The spreadsheet was redacted because it was felt by Justice that releasing the information in its entirety, could pose a threat to national security. How this is possible is beyond me but it shows that Justice, under the guidance of government, can use just about any excuse to redact just about any document that is requested under the Access to Information Act.

    http://viableopposition.blogspot.com/

Sign in to comment.