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.