Confidentiality and Censorship

The CBC reports that two youths who were among the 17 individuals arrested in Toronto on charges under the Anti Terrorism Act are in court for bail hearings today. It is unlikely that we will hear much in the way of details regarding the proceedings in the court, owing to the sweeping publication ban imposed on all aspects of the trial and related hearings. Lawyers for CBC, the New York Times, and Associated Press are currently challenging the ban on the grounds that it is in the public interest to ensure that the proceedings are open and transparent. Beyond the specifics of the case, we can see two larger areas of interest here: first, we see beginnings of the first intersection between federal anti-terror law and youth criminal justice legislation; and second, we see the state testing the limits of its capacity to invoke ‘national security confidentiality’ in relation to anti-terrorism activities. The final disposition of both of these issues will be of great importance to the future of national security in Canada.

Speaking of national security confidentiality (known in some manifestations as ‘censorship’), the Bush White House is up in arms over the reporting of a secret international banking surveillance program in yesterday’s newspapers. Bush is quoted as saying “…the disclosure of this program is disgraceful. We're at war with a bunch of people who want to hurt the United States of America, and for people to leak that program, and for a newspaper to publish it, does great harm to the United States of America." I’m not sure if it’s possible to find a better example of a chilling effect in recent political discourse. The Washington Post quotes critics who argue that the White House has adopted a “shoot the messenger strategy” in relation to national security operations, where reporters are painted as near-treasonous (and even full-blown treasonous) for reporting on programs while the disturbing questions about those programs go unanswered. In defence of the printing, New York Times executive editor Bill Keller argues that:

“Since September 11, 2001, our government has launched broad and secret
anti-terror monitoring programs without seeking authorizing legislation and
without fully briefing the Congress. Most Americans seem to support
extraordinary measures in defense against this extraordinary threat, but some
officials who have been involved in these programs have spoken to the Times
about their discomfort over the legality of the government's actions and over
the adequacy of oversight. We believe The Times and others in the press have
served the public interest by accurately reporting on these programs so that the
public can have an informed view of them.

[…]

“We
weighed most heavily the Administration's concern that describing this program
would endanger it. The central argument we heard from officials at senior levels
was that international bankers would stop cooperating, would resist, if this
program saw the light of day. We don't know what the banking consortium will do,
but we found this argument puzzling. First, the bankers provide this information
under the authority of a subpoena, which imposes a legal obligation. Second, if,
as the Administration says, the program is legal, highly effective, and well
protected against invasion of privacy, the bankers should have little trouble
defending it.”

The right-wing contingent of the American media and blogosphere have, of course, adopted Bush’s position on this matter, but with additional vitriol and bitterness. For example, Fox’s Bill O’Reilley has posted a rather confused response that proposes that the New York Times has reached a ‘tipping point’ and become a threat to national security; he arrives at this conclusion by imputing anti-administration motives to the ‘far left’ media, but without really addressing the substance of the Times report, which is illustrative of the “shoot the messenger” strategy adopted by the White House.

The larger issue here – and one that runs through all of these stories and commentaries – is the increasing trend towards the normalization of ‘national security confidentiality’ as a core component of all aspects of national security campaigns. Without adequate democratic mechanisms to provide oversight or vet claims to security-secrecy (an issue in the Toronto trials, the Security Certificate hearings, the Arar Commission, and numerous American activities and trials), the state is able to automatically exercise its role as information gatekeeper in situations where ‘national security’ is invoked. Secrecy is the starting point, and it is becoming increasingly difficult to make important details about security activities available to the public in time for us to have an influence on the decision-making process.

Ultimately, what these situations demonstrate is the need for a third-party arbiter of confidentiality to act on behalf of the public when secrecy is to be invoked, at all levels. The alternative is to continue the game of cat-and-mouse currently being played between the press and the state as regards national security, a game where the media is always reacting post-facto to state decisions. The press has successfully brought many important security-related stories (scandals) to light, against the wishes of administrations – Abu Ghraib, Guantanamo conditions, extraordinary rendition, black sites, lax prisoner transfer rules, extraordinary surveillance regimes, and the politics of war-making, to name a few. However, all of these stories are reactions after-the-fact, exposing secret activities that exist outside the law or are at the very least cause for immense public debate; in other words, the damage was already done (to people, if not to the state) when the story broke, and the fast-paced forward-looking nature of newsmaking ensures that these incidents are quickly moved over in favor of the next big story. This is, of course, to be expected from the media, whose job is to report and inform (albeit with an ideological bent), but not to directly influence the political process. In the absence of a more trustworthy, transparent, democratic, and accountable process for vetting security confidentiality claims, the media seems to be the best we can hope for. If this voice is effectively shut out or chilled (more so than it is now) though, then the removal of civil society from the national security debate will in effect be complete.

All of which is to say that there is good reason to keep a sharp eye on the relationship between the state and the media as regards national security, and to be prepared to resist the encroachment of secrecy prerogatives upon public knowledge in the future.