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?
Illustration by Tamara Shopsin

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.

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6 comment(s)

AnonymousDecember 10, 2009 11:06 EST

How the hell does UGG Bailey Button get comments here???
Let's clean it up Walrus!

AnonymousDecember 10, 2009 11:08 EST

London hotels - what exactly are you trying to say?

Duff ConacherDecember 12, 2009 12:14 EST

Dear The Walrus,

In contrast to the claim made in your article, the actual overall record of public access to government documents is no worse under the federal Conservatives than under any previous government — it is just as bad as it has always been, as the Information Commissioner's annual reports dating back to 1984 make clear (The Dark Country - Jan/Feb 2010).

The Conservatives' Accountability Act made the positive change of extending coverage of the federal Access to Information Act to dozens of government institutions that were not covered before, but also made the negative change of prohibiting the release of draft audit and other internal reports until the final report is completed.

As your article points out, Democracy Watch and its Open Government Coalition is pushing the Conservatives to make further positive changes, but we are also pushing all the federal parties.

In the current minority federal government situation, the opposition parties could at any time work together to pass an open government bill that makes the key changes of extending coverage of the Act to every federal government and federal-government funded institution, requiring everyone in all of those institutions to create a record of every action and decision, and empowering the Information Commissioner to order the release of any record that is in public interest if the release will not result in physical or unjustifiable harm to anyone or any organization (which are the key changes the Conservatives promised to make to the Act during the 2006 federal election).

Canadians deserve better actions and decisions on open government from all the federal political parties (and, by the way, also from provincial, territorial and municipal politicians).

Duff Conacher, Coordinator
Democracy Watch

P.O. Box 821, Stn. B
Ottawa, Canada
K1P 5P9
Tel: (613) 241-5179
Fax: (613) 241-4758

Since 1993, making governments and corporations more accountable to you, and making Canada the world's leading democracy

PathrikDecember 18, 2009 10:51 EST

On thing the article only partially addresses is the impact of specific privacy legislation (such as PIPEDA and other acts). These acts work like sledgehammers cracking a peanut- they were sold to voters as necessary to protect consumers and citizens from certain types of personal information being used for bad purposes by people or entities. While this is what governments claim they have done the facts do not demonstrate that data stored within governments are safer today than in past years. Read auditor general reports on the lack of management controls and security protocols in data repositories within governments. You could pretty much drive a mac truck through the loopholes in certain cases!

What these pieces of legislation were truly designed to do was to give government officials the 'moral high ground' argument involving FOI requests- which has stripping away the concept of the right to know. Government officials routinely describe restricting all kinds of information on moral grounds, specifically relating to privacy.

Aviation TutorJanuary 22, 2010 16:59 EST

Why would they allow this in Canada, people cant always let things go

SteveSeptember 16, 2010 05:28 EST

Freedom of information? Why would any of the parties support that? You seem to be under the impression we were still a democracy; think again. This country is becoming a police state.....look a little closer. It is the boiling frog syndrome......slowly change the rules, slowly change the constitution, and the people won't notice. It has been going on since Diefenbaker, if not further back. Most of the media is controlled by the few……they even want to bring “Fox North” to Canada…..God help us all!

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