Feature

The Dark Country

The Afghan torture scandal. The Arar affair. Adscam. The Bush years. Given so many cautionary tales, why are Canadians still letting the government hide public information?

THE PLAGUE PERIOD OF WASHINGTON, DC

At the end of the nineteenth century, the area southeast of Pennsylvania Avenue and Fourteenth Street was awash in brothels and alehouses. Known as the “plague spot of Washington, DC,” it was also conveniently close to some of the city’s best hotels and theatres. By World War II, this place of sin and intrigue had been paved over; it’s now home to the Ronald Reagan Building—a staid, respectable convention centre reflecting the tastes of the bureaucracy it serves.

It was a cloudless, sun-drenched morning, a year after 9/11, when I made my way to the Reagan centre to attend a conference of the American Society of Access Professionals on the unglamorous subject of freedom of information. With a newly minted law degree from McGill University, I had landed a one-year fellowship at a non-profit organization in Washington, and was charged in part with studying how governments were using citizens’ fear of terrorism to become more secretive.

The black-letter law I’d been taught at McGill had provided me with an ideal model for the world of constitutions, parliaments, and jurisprudence; the fellowship was to be a lesson in how governments actually do business in an era of message control, opposition research, and twenty-four-hour news cycles. DC in 2002 was the perfect place to get this education. That September 11, the American capital was still haunted by the attacks of the previous year. American flags adorned the fronts of row houses, and flag pins were fastened to fast-food uniforms and Brooks Brothers suits alike. The age of Republican warrior kings had dawned. Donald Rumsfeld was the conquering hero of Kabul, George W. Bush’s approval rating was in the stratosphere, and the notion that the public had a right to know what the government was doing was, along with the Geneva Conventions, becoming increasingly quaint.

Inside the convention hall stood Dan Metcalfe, a senior administrator in the Department of Justice who counselled officials on how much information to release from government vaults. A slightly plump, bespectacled man, Metcalfe spent some time at the conference defending the Ashcroft Memo, which advised government workers that they could withhold information when they had a “sound legal basis” for doing so. He spoke with practised ease, working the civil service crowd with a distinctly American brand of folksy humour as he insisted that the new document was merely a “change in tone” from previous disclosure policies and would not, as critics claimed, lead to widespread government secrecy.

Taken on its own, perhaps not, but I couldn’t help but notice that many at the conference argued against disclosure, like the navy civil servant who noted without irony that “loose lips sink ships.” Something in early twenty-first-century America felt amiss.

Two thousand and two was a perilous year for those charged with sniffing out the corruption of warrior kings: the New York Times and the Washington Post, bellwethers of the American mainstream, were among those promoting journalism that buttressed Bush’s arguments for war. It would be quite some time before it became clear that the country was being led by an ideologically driven, even inept administration that was manipulating intelligence to make the case for its wars, all the while invoking the need for secrecy to cover up its questionable conduct of those wars.

I was fortunate, in the months following the conference, to receive a close-up view of one of the few people looking behind the administration’s facade. A few weeks after the conference ended, I began to work as a researcher for Seymour Hersh, one of America’s best-known investigative reporters. In his forty-year career, Hersh has broken numerous stories, including the My Lai massacre during the Vietnam War, government spying on leftist groups in the 1970s, and many of the misdeeds of Henry Kissinger.

At the time, Hersh was working on a series of articles for The New Yorker, probing the Bush administration’s justifications for war in Iraq. He cultivated sources willing to pass on information about what the government was really up to—people who believed that the public’s need to know was more important than keeping quiet. As the nation inched closer to war, Hersh, along with a select number of other reporters, began publishing stories on the government’s role in misleading the American public on Afghanistan and Iraq.

Eventually, former members of the Bush administration and civil servants joined the chorus. Among them was Dan Metcalfe, who became an unexpected critic of government secrecy after retiring from the Department of Justice. He left in part because he was asked to review a draft of a department op-ed claiming that the administration was voluntarily releasing tens of thousands of documents relating to the conduct of the war in Iraq. In fact, it had been compelled by court order to release them. (“It was a cold, calculated, intentional lie,” he says.)

Metcalfe seemed to exemplify the tensions within the American system: he’d been part of a bureaucracy that wanted to keep its activities secret, yet he still wished to see abuses of power exposed. And ultimately, he’d found his way to fighting for the ability of Americans to do just that.

THE OTTAWA CONTAGION

I returned to Montreal in 2004 and soon started working as an investigative journalist with cbc, wondering how different things would be. With Bush’s re-election imminent, Canada was lauding itself as North America’s designated driver—the sober, moderate voice that had avoided the Iraq imbroglio. The war in Afghanistan was heating up, though, with Canadian soldiers preparing to leave the relative safety of Kabul for a deadly deployment in Kandahar province. And Maher Arar, the Syrian Canadian who had been tortured near Damascus, had begun to demand answers. Then there was the Gomery inquiry into the sponsorship scandal, which had accusations of corruption and cover-up flying around Ottawa.

It was clear that the impulse toward secrecy and dissimulation Seymour Hersh was forced to combat in the US was operating here, too. Canadians didn’t know much about what their government was up to, and politicians wanted to keep it that way. The country had flawed information laws, weak enforcement, and little cultural inclination to insist on the public’s right to be informed about government activities.

Nowhere was this more evident than in the Afghanistan file. By 2006, the new Conservative government was maintaining almost total secrecy over Canada’s operations in the war zone, with the chief of defence staff, General Rick Hillier, blocking the release of all documents dealing with captured detainees because, he argued, the information could threaten Canadian troops. Despite this, the Globe and Mail managed to break the gruesome news that some of the prisoners captured by Canadian soldiers had been handed over to Afghan authorities and subsequently subjected to torture, including whipping with electrical cables. “Some said the whipping was so painful that they fell unconscious,” the Globe reported. “Still another [detainee] said he panicked as interrogators put a plastic bag over his head and squeezed his windpipe.” Many legal experts considered our failure to properly monitor captives to be a violation of the Geneva Conventions.

In 2007 and again in 2008, the Canadian Association of Journalists (caj) gave Stephen Harper its Code of Silence Award. The association’s president, Mary Agnes Welch, said in 2007 that “Harper’s white-knuckled death grip on public information makes this the easiest decision the cabal of judges has ever rendered… He’s gone beyond merely gagging cabinet ministers and professional civil servants, stalling access to information requests and blackballing reporters who ask tough questions. He has built a pervasive government apparatus whose sole purpose is to strangle the flow of public information.” The following year, the information commissioner’s office graded Harper’s office, the Privy Council, an F on matters of disclosure.

These were particularly sour raspberries for Harper, who had cast himself during the run-up to the 2006 federal election as Mr. Transparency—someone who would open and cleanse Ottawa’s filing cabinets in the wake of the sponsorship scandal and years of Liberal mismanagement. The capital had, by the time he arrived, already reached a point where, as Toronto Star columnist James Travers put it, “a cottage industry now thrives counselling ministers, their staff and the civil service on how not to share public information with the public.” In the years since, it has increasingly come to appear as though we’re going down the same secretive road as George Bush and Dick Cheney’s America, but without the strong checks needed to lead us back. And so it bears asking: how might Canadian institutions be strengthened to prevent similar abuses of power? And, perhaps more important, is it possible for our political culture to shift away from its traditional emphasis on discretion and toward transparency?

THE UNWANTED OFFSPRING

Historically, Canada drew inspiration for its governmental structures from the British parliamentary model, in which power is concentrated with the prime minister, the Privy Council, and the cabinet. As the name Privy Council might suggest, executive secrecy and information control were long the norm here. Then, in the early 1980s, amid a deteriorating economy, a constitutional crisis, and a scandal in the ranks of the rcmp, the Trudeau Liberals passed a “good government” bill, the Access to Information Act (ati). The act came into force in 1983, permitting Canadians to retrieve information from government files, establishing what information could be accessed, mandating timelines for response, and creating the Office of the Information Commissioner to investigate complaints.

The legislation was controversial, in part because it contained several very large holes. The so-called Mack Truck clause excepted all cabinet documents, including “discussion papers containing background explanations, analyses of problems or policy options, cabinet agendas and minutes, communications between ministers, briefing papers and draft legislation.” Crown corporations, too, were exempt. Though his party supported an open government act in principle, then ndp justice critic Svend Robinson voted against the Liberals’ offering, arguing that it was “useless and even more damaging than no bill.” On the other side of the aisle, justice minister John Crosbie sneered that the ati law would be a tool for “mischief-makers” who would “embarrass political leaders and titillate the public.” The first information commissioner, Inger Hansen, warned early in her term that the act was in danger of becoming the “unwanted offspring in Ottawa.”

The title of the new law was only its most obvious distinction from the Freedom of Information Act passed sixteen years earlier in the United States. In the US, the act’s name inextricably linked information with freedom, granting it the status of inalienable right. In Canada, citizens could be granted “access” to information by the government, if they followed certain rules set by that same government. As open government advocate David Eaves points out, this follows from a tradition in which sovereignty resides with the Queen. Government data “isn’t your, mine, or ‘our’ data,” he writes. “It’s hers. It is at her discretion, or more specifically, the discretion of her government servants, to decide when and if it should be shared.” In the United States, the American Revolution put an end to any such notion.

That said, freedom of information was not universally embraced at first in the US either, but it gained traction because of the country’s diffusion of power among the legislative, judiciary, and executive branches. In the 1950s, a frustrated Democratic Congress, seeking access to Eisenhower’s records, began pushing for a transparency law, with strong backing from the media. Then, in the mid-1960s, a young Republican congressman named Donald Rumsfeld, annoyed that the Johnson administration was withholding information, began fighting for the same. “That was before he never met a secret he didn’t love,” says Dan Metcalfe. Indeed, by 1974 Rumsfeld, in his capacity as Gerald Ford’s chief of staff, was advising the new president to veto a post-Watergate amendment to the act that mandated judicial review of executive secrecy claims, among other improvements. Congress ultimately voted to override the veto, crystallizing a strong, if imperfect, act.

In Canada, the adequacy of the act has been in question from the outset, and it hasn’t improved much since the 1980s. “Compared with the US and Britain,” says University of Ottawa law professor Amir Attaran, who has worked on several recent high-profile cases involving transparency issues, “Canada’s system of disclosure is far inferior.” A 2008 study by the caj and the Canadian Newspaper Association actually ranked this country’s access law behind those of India, Mexico, and Pakistan. Among the most significant problems the report cited were the information commissioner’s inability to compel the government to release documents, and the exclusion from the act of about a hundred important government-affiliated bodies, including Canadian Blood Services and the Nuclear Waste Management Organization. The study further found fault with Section 21 of the act, which gives ministers broad rights to withhold records on the internal decision-making processes, deliberations, and advice of government.

A different report, issued that same year by the Public Policy Forum, traced the ways in which successive governments since Trudeau’s have allowed the ati act to decay. In practice, ati offices within federal bureaucracies have become “isolated, under-resourced, [and] under-professionalized,” succumbing far too often to a mindset that says, “when in doubt, cross out.” The ati law has spawned such fear and contempt in Ottawa that some civil servants now communicate orally or use sticky notes to avoid creating a trail. These approaches speak to the overarching need of Canadian bureaucracies to control their information at all costs, lest something damaging come out on the floor of Parliament or in the media. One tactic in particular—delay, delay, and delay—has created such a massive logjam of requests that it threatens to crash the entire access system.

THE AMBER-LIGHT DISTRICT

On the corner of Wellington and Metcalfe streets, outside Parliament Hill, an amber light signals caution, by law requiring drivers to “slow down and be prepared to stop.” Inside Parliament Hill, an amber light forces members of the media and political parties to do the same. The “amber light” tag, reserved for sensitive requests, is appended to nearly half of all ati petitions filed by such departmental nuisances.

One of the most important provisions of the ati act requires the feds to release information within thirty days, though it allows for reasonable extensions when necessary. For sensitive requests, delays are common, however, and high-profile agencies such as the Privy Council Office and the Department of Foreign Affairs now routinely rely on extensions of four to nine months, with reports of four years for some departments—plenty long enough to quash many stories being written on daily deadlines.

Filing an ati request is supposed to be straightforward: fork over $5 and petition the appropriate government agency to release specific files. Requests can be submitted by any Canadian seeking the kind of hard information rarely found in the press releases and talking points favoured by communications personnel and high-ranking officials. In the past few years, the law has been used, for example, by the Vancouver Sun to show how a suspected carcinogen banned in pesticides is still available in some bottles of lice treatment shampoo used mainly on children. Another recent ati-based report by the Canadian Press revealed that abandoned explosives from bygone military training exercises (including World War II–era bombs, anti-tank mortars, and even torpedoes) might be scattered across more than two dozen native reserves countrywide.

Delays in fulfilling requests are not always tactical, of course. Government information storage methods can be outdated and Byzantine, petitions are not always phrased with enough precision or directed to the right place, and departments are often too understaffed or undertrained to respond expeditiously. However, the system is oriented not toward overcoming such hurdles, but toward lessening the political risk requests might entail. “Everything in the bureaucracy works against the release of information,” says Ross Hodgins, a senior adviser with the information commissioner’s office.

When an ati petition is filed, it initially goes to an access coordinator. The ati officer’s job is to work with the department holding the documents, in order to decide how much information must be released. When amber lighting happens, the request works its way to the minister’s office, where it stalls until approval is granted—or not. When Hodgins worked as an adviser with the Treasury Board Secretariat, he often dealt with access coordinators. “They were very much under stress to redact information that could be politically embarrassing,” he says.

The sponsorship scandal was a case in point. In 2000, Globe and Mail reporter Daniel Leblanc submitted an ati request for the budget of a federal sponsorship program, based on a tip from an insider. Anita Lloyd was the access coordinator tasked with shepherding the document through the bureaucracy. “Anita was put under tremendous pressure because the information she wanted to release was politically embarrassing,” Hodgins says. But Lloyd refused to back down. On the stand, she told Justice Gomery that withholding the information “would be misleading the applicant… I thought it wasn’t legal and I thought it wasn’t ethical.”

By 2007, things were so out of hand that a high-ranking official tried to suppress documents showing that then rcmp commissioner Giuliano Zaccardelli had billed the force $80 for a shot of cognac. “If the rcmp does not respect the Access to Information Act, who will? ” asked Christian Picard, the access coordinator who fought to release the brandy-stained documents, during his official testimony in the matter. “I fought epic battles with senior managers. That was not always easy within a paramilitary organization like the rcmp.”

The backlog of complaints about departmental delays has grown so large that getting the information commissioner to resolve an access grievance can now mean a two-year wait. And in the absence of a ruling from the information commissioner, petitioners have no recourse to the court system either. “There’s less information being released by government than ever before,” says former information commissioner Robert Marleau, “and that’s alarming.”

THE UNOFFICIAL SAFETY VALVE

With the arteries of Canada’s access system clogged, journalists must increasingly rely on a more traditional, backdoor approach to gathering potentially troubling information: finding leaks. In the public imagination, leaked stories come about when a journalist and an ethically motivated whistleblower pair up to get the truth out. This perception originates largely in the United States, where leaking is practically woven into the fabric of the nation. The secret carpet bombing of Cambodia ordered by Richard Nixon, which resulted in the deaths of hundreds of thousands of civilians, was leaked to the New York Times in 1971 by Daniel Ellsberg. Then there was Watergate, uncovered by Bob Woodward and Carl Bernstein in large part because of Mark Felt, better known as Deep Throat. More recently, there was Jeffrey Wigand, the tobacco company insider who leaked documents and told his story to cbs’s 60 Minutes in 1995; Seymour Hersh’s work on Iraq; and that of James Risen, who reported on government eavesdropping for the New York Times with the help of inside informants. Such whistleblowers have been celebrated in books and movies, and have become admired figures in American culture.

Canada, by contrast, has known few high-profile leakers. Perhaps the most famous recent example here was Department of Public Works civil servant Allan Cutler, who protested back in 1995 that Chuck Guité, the bureaucrat administering the sponsorship program, was cooking the books. Despite having complained only internally, Cutler was declared “surplus” (read: fired) for his indiscretion. His full story came out only years later, during the Gomery inquiry.

Though Globe reporter Daniel Leblanc did rely on whistleblowers to break elements of the sponsorship scandal, leaking is rarely how corruption and gross neglect or incompetence come to the fore here. Canada’s institutional and political culture do not appear to allow for it in the same way. The biggest scandals of recent decades—among them the Somalia affair, Arar’s Syrian detention, the Afghan detainee story—were at first exposed to the public through other means, despite the fact that there were undoubtedly people who could have brought the information forward early on.

Some blame our bureaucrats. “We have an amoral civil service here in Canada,” Amir Attaran says, barely containing his rage as he speaks about the case of Abousfian Abdelrazik, the Sudanese Canadian whom government officials consistently refused to repatriate between 2003 and June 2009. Even after Sudan’s military intelligence service told Canadian officials in Khartoum they were willing to “disappear” Abdelrazik, our diplomats kept silent. Approximately half a dozen civil servants “discussed the assassination of a Canadian citizen, and no one leaked that information,” says Attaran, who assists Abdelrazik’s legal team. “That’s sick.”

Attaran, an American citizen, is quick to point out the imperfections of officials in his home country, but he believes the Canadian bureaucracy suffers by comparison: “They are much more selfish than their US counterparts; they are just waiting to get their pensions.”

Taking a more sympathetic view is Alasdair Roberts, a professor of law and public policy at Suffolk University Law School who has studied both the Canadian and American systems. Roberts notes that scale is a factor. Canada has a much smaller bureaucracy, he says, “so it’s easier for the government to figure out who spilled the beans.” He also points out that the top six or seven layers in the US bureaucracy are staffed by temporary political appointees, who need not necessarily fear for their careers if they pass information to journalists.

The Conservatives did pass whistleblower protection as part of their transparency initiatives, notably by legislating the office of public sector integrity commissioner, which was designed to give civil servants the opportunity to report wrongdoing without reprisal. As of the commissioner’s most recent report to Parliament, the office had received some 114 disclosures of wrongdoing—yet it launched just two new investigations its first year, and had only one under way by early 2009. “We had hoped when it was brought into force that the office would be proactive,” New Democrat MP Paul Dewar said in July, “and that it wouldn’t be like the Maytag repairman and sit back and say, ‘Well, everything seems to be fine.’”

Ideally, federal civil servants would be able to expose wrongdoing without fear of reprisal. But again, critics point to Canada’s weak legislation, which leaves whistleblowers to rely on a commissioner rather than the courts to resolve their complaints. As conceived in the new legislation, the office of the commissioner has no real power—at best, she can report cases of wrongdoing to Parliament or refer reprisal cases to a tribunal of senior judges. And not once has she done either.

CHICKEN DINNERS AND FAKE SMILES

Surf through government websites in the two countries, and the long-term payoff of a culture that values transparency becomes obvious. Traditionally secretive organizations such as the Central Intelligence Agency and the Federal Bureau of Investigation, for instance, pre-emptively post reams of documents in electronic reading rooms on their websites. Contra Orwell, the fbi even posts information known to have been collected for dubious reasons. “What do Jackie Kennedy, the Beatles, Albert Einstein, Gracie Allen, Thurgood Marshall, and Walter Winchell have in common? Give up? ” the site asks, boasting, “They are all part of historical fbi records.”

That the rcmp has no similar site is not for want of material. Our national force amassed some 800,000 files on Canadians, some of which were disclosed thanks to ati requests. Singer Rita MacNeil was among those monitored during the ’70s, in her case for participating in Canada’s feminist movement. The rcmp also spied on Tommy Douglas, the first leader of the ndp and the father of Canadian medicare, because of his opposition to nuclear weapons and UN policy on Korea. Other subversives targeted by the force included Pierre Berton and Peter Gzowski.

Perhaps the most striking example of the differences in commitment to transparency are the two governments’ websites on stimulus spending. In keeping with Barack Obama’s disclosure initiatives, the US government has a site that allows Americans to download detailed databases offering basic project information, including locations, dollar figures, and the names of contracted companies. In Canada, meanwhile, journalists and citizens wishing to track, say, whether more money is being spent in Conservative ridings than in Liberal ones are directed to a website that, as this magazine went to press, showed pop-ups with a picture of the prime minister over areas receiving stimulus funds, but no precise dollar figures. In a column titled “Ottawa Is Sending Me into a Black Rage,” reporter Stephen Maher of Halifax’s Chronicle-Herald detailed his struggles to get a list of projects from the Prime Minister’s Office. After three weeks of repeated requests, Maher wrote, the pmo told him to “stop bothering them.”

Charles Lewis, founder and former executive director of the Center for Public Integrity—the investigative outfit where I worked in DC—saw that impulse repeatedly during Washington’s plague period. “I get sick of seeing politicians at chicken dinners with fake smiles on their faces,” he says, “when behind closed doors they clamp down on openness while making decisions that only a tiny percentage of the population can benefit from.” He speaks to the need for strong institutions and laws to combat this impulse, pointing out that “it is not in the dna of the human animal to put out information detrimental to itself.”

Indeed, the public inquiry into the detainee scandal all but ground to a halt this year, with Ottawa insisting that it be conducted mostly behind closed doors, excluding key witnesses and allowing others to receive questions in writing first. Equally troubling, in October justice minister Rob Nicholson rejected the recommendation of a House of Commons committee that Canada’s access to information laws undergo a long-needed overhaul.

A cultural shift, if it is to come, will likely have to begin with local initiatives and public pressure. The cities of Vancouver and Toronto, for their part, have launched open data initiatives, while ChangeCamps designed to foster open government are being held by citizens’ groups countrywide. And organizations such as Democracy Watch and the Canadian Association of Journalists continue to press the Conservatives on transparency issues. For it to become an article of governance, in a country in which a Privy Council grants access to information, that the public deserves genuine and timely disclosure of government activities, more will be required.

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman,” Supreme Court justice Louis Brandeis famously wrote in Harper’s Weekly in 1913. The ever-prosaic Joe Clark expanded on the sentiment decades later, in 1978. “Real power,” he proclaimed on the floor of Parliament, “is limited to those who have facts.”