On intelligence leaks, the media, and the law

Part 1, A cautionary tale

Someone (probably plural someones) has been leaking highly classified intelligence reports to select Canadian media outlets about Chinese election interference. The leaks are being investigated by both CSIS and the RCMP. My purpose with this column is neither to express outrage or to cheer-lead for the leaker(s). It is rather to consider what is known about the phenomenon of leaking, partly based on a past Canadian episode, including thoughts on the motivations of leakers, reflections on the role and responsibilities of the media, and the status of the law around leaking. This is Part 1 of a two-part story.

There is a long list of what we don’t know about the leaker(s). The list includes identity, motivation, access, document retention, current employment status, methods for contacting the media, and the totality of documentation provided to the media. There will be more on the motivational dimension in Part 2.

The leaker(s) are not whistleblowers in so far as they have chosen anonymity (at least for now) and have not used sanctioned procedures for bringing alleged wrongdoing or problems to the attention of authorities (so far as we know).

Media outlets that have been given access to the leaks—the Globe and Mail and Global News—have protected the identity of their sources. They have not provided any information to readers about their protocols for scrutinizing the leaks, about how decisions are made to publish excerpts, about efforts to seek corroboration, about any imposed self-censorship in the interests of protecting sensitive information, or about any agreements reached with the leaker(s). This ain’t the Pentagon Papers.

Where does Canadian law stand on leaking? You might be wondering whether media organizations that have been reporting on this leaked material face any threat of prosecution. There is a section of the Security of Information Act (SOIA) that is still on the books that criminalizes “wrongful communication,” “receipt,” and “retention” of a secret thing ( I say thing because the law refers to secret code words, passwords, sketches, plans, models, articles, notes, documents, or information—yes, its a little old fashioned). In theory, a media organization that comes into the possession of any such secret thing could be subject to prosecution. Fortunately, the relevant sections of the SOIA (s4) were found to be unconstitutional and struck down in Ontario Superior Court by Justice Ratushny in 2006 in a case brought by then Ottawa Citizen reporter, Juliet O’Neill. Justice Ratushny found that the s4 provisions were overbroad and in contravention of the Charter. Her key finding was that the SOIA provisions “arbitrarily and unfairly and with a blunt club of criminal sanction restrict freedom of expression including freedom of the press.” There is more to the ruling, and you can read it here:

https://www.ontariocourts.ca/search-canlii/scj/scj-en.htm

For those of you who do not remember the O’Neill case (!), it stemmed from an RCMP investigation into leaks of classified information about Maher Arar. Ms. O’Neill was the recipient of some of those leaks, which were designed to cast aspersions on Arar’s innocence. Arar, a Canadian citizen and engineer, had been detained at a New York airport on a trip home to Canada following a family vacation in Tunisia. After several days in detention he was sent through a secret process known as ‘extraordinary rendition’ by US authorities to Syria in September 2002 where he was imprisoned without charge in a Syrian military intelligence jail and tortured. He was eventually released back to Canada a year later, after an intervention by the Prime Minister. The RCMP had provided to US counterparts wholesale access to Canadian security databases that included allegations, that proved to be completely unfounded, that he was a senior Al Qaeda terrorist and had undergone training in Afghanistan. The whole affair was eventually the subject of a major judicial inquiry led by Justice Dennis O’Connor, which reported in 2006, finding Mr. Arar innocent, the RCMP complicit in the mistreatment of Mr. Arar, and urging changes to the RCMP’s handling of terrorist cases.

The O’Connor report, formally the Commission of Inquiry into the Actions of Canadian Officials with regard to Maher Arar, has to be hunted down online. Its volumes can be found here:

Volume One, Factual Background: http://www.sirc-csars.gc.ca/pdfs/cm_arar_bgv1-eng.pdf

Volume Two, Factual Background: https://ccrjustice.org/sites/default/files/attach/2015/05/ARAR_Vol_II_English.pdf

Analysis and Recommendations:

https://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/07-09-13/www.ararcommission.ca/eng/AR_English.pdf

For Ms. O’Neill’s part, she published a story based on the leaked material in the Ottawa Citizen, entitled “Canada’s dossier on Maher Arar,” on November 8, 2003. The RCMP obtained search warrants for Ms. O’Neill’s home and her office, which it executed on January 21, 2004, alleging she had contravened s4 of the SOIA by receiving and retaining secret information. It was one dramatic moment in the early years of the ‘war on terror.’

While the s4 provisions remain in the law (the government hasn’t gotten around to revising the Act) they are effectively of no force. Whew.

But while the O’Neill case was unique in terms of an RCMP warranted search and threats of arrest, it was part of a broader and deeply disturbing pattern of official leaks to the media. This is my cautionary tale.

The story of the Arar leaks is laid out in full detail in Justice O’Connor’s report. Justice O’Connor stated that “the evidence shows that over an extended period of time classified information about Mr. Arar was selectively leaked to the media by Canadian officials.” (vol. 2, p. 485). The leak campaign lasted for two years, from July 2003 to July 2005, and even involved material leaked from in camera hearings before the O’Connor inquiry.

I will try to fairly summarize this very ugly story here.

But before I do, I am going to add a personal story. I am not a journalist but I, too, was a target for an aspect of the leaks. My source was a Cabinet Minister who voluntarily informed me (as my memory serves) that Arar was a bad guy and that there was much more known about him by the security services than could ever be told. Presumably he was telling me this because he thought I was some kind of influencer. This was reckless and inappropriate behaviour by the Minister, but I can only presume that he sincerely believed the account he was conveying, on the basis of listening to what some senior officials had told him. I didn’t make any use of this information, or even write down a record, but I can attest to the wow factor. Had I been a journalist I can fully appreciate the impact such a leak would have.

So, back to the main story.

The leaks began even before Mr. Arar was returned to Canada. The leak campaign was orchestrated and broadcast to several media organizations. It involved character assassination, allegations of terrorist ties, and efforts to throw doubt on his story of torture while held in Syria. In retrospect the clear intent of this leak campaign was to cause the Canadian public to doubt Mr. Arar’s innocence, to stir up fears of terrorism in Canada, to defend the reputation of the security agencies and their investigations, and to try to fend off any public inquiry.

The leak campaign intensified once Arar was back on Canadian soil and speaking about his ordeal to the media, beginning with a press conference which he held on November 4, 2003. At that press conference he described being tortured, denied all ties to terrorism, and called for a public inquiry into his case.

Justice O’Connor describes the story published by Juliet O’Neill on November 8, 2003, as involving “the most notorious of the Arar leaks.” (Analysis and Recommendations, p. 259). The O’Neill front page story relied on anonymous leaks from an intelligence dossier about what Mr. Arar had allegedly said during interrogation by Syrian military intelligence and cited a confidential source explaining that the reason the Government was opposed to any public inquiry was that it would interfere with the sensitive investigation of an Al Qaeda support cell based in Ottawa.

Many of the journalists who were caught up in this leak campaign have since retired.—it was 20 years ago, after all. But Justice O’Connor’s report singles out one who remains active and prominent today—Robert Fife, currently the Globe and Mail’s Ottawa Bureau Chief. As readers of the Globe will know, Mr. Fife has been a leading reporter covering the recent leaks of intelligence from anonymous sources regarding Chinese election interference. His role in the Arar leak affair cannot escape notice, though he was only one, among many, Canadian journalists who published stories based on leaks. But his accounts were high profile, high-impact stories. I do not recount a summary of Mr. Fife’s role, drawn from Justice O’Connor’s account, to impugn his reputation. He is a well-respected journalist. I recount it because it is a cautionary tale with cautionary echoes that reach into the Chinese election interference coverage.

Mr. Fife, who at the time worked for CanWest News, dived in early on the Arar story, publishing a front page story in the Ottawa Citizen on July 24, 2003, citing an essay by Seymour Hersh for the New Yorker about an alleged Syrian intelligence operation that helped foil a suspected attacks against an American target in Ottawa and referring to an official, unnamed source who told him that Arar is a “very bad guy who apparently received military training at an al Qaeda base.” (Vol. 2, p. 485) Arar’s wife, Sonia Mazigh, tried to fight back by publishing a letter in the National Post denouncing Fife’s use of “unnamed sources” and their “unsubstantiated claims.” But the leaks kept coming to multiple recipients in the press, suggesting that Arar had been “roughed up” but not tortured in Syria and that he had provided information to Syrian intelligence about al Qaeda, the Muslim Brotherhood and terrorist cells operating in Canada. This Syrian confession was allegedly provided to CSIS.

More stories by Mr. Fife based on anonymous sources were published in the Ottawa Citizen on December 30, 2003 and January 23, 2004, as recounted by Justice O’Connor. In the December 30 story, Fife quoted an unnamed “senior Canadian intelligence source” as stating that “[if’] the Americans were ever to declassify the stuff [on Arar] there would be some hair standing on end.” It included allegations, drawn supposedly from a secret intelligence file on Arar, that he had travelled to Pakistan in the early 1990s and gone to train at the notorious Khalden camp in Afghanistan. (Vol. 2, p. 489). Fife’s January 23, 2004 article contained insider accounts of discussions between RCMP officials and US authorities about how to handle Arar after his detention in New York.

Later in January, 2004, the Deputy Prime Minister announced the decision to hold a public inquiry into the actions of Canadian officials in relation to Maher Arar. The tenor of the leaks was a major factor forcing the government’s hand to hold a public inquiry, which the government was initially reluctant to call (sound familiar?). The RCMP search and threat of arrest of Juliet O’Neill was a tipping point. The leaks also ultimately failed in their objectives: to tarnish Arar and sidetrack any public inquiry.

As Justice O’Connor indicates, investigations by multiple departments and agencies into the sources of the leaks to the media led nowhere. When his report was released in 2006 he was a pessimistic that the investigations would lead anywhere, and they ultimately didn’t. No leakers were ever identified and no charges ever laid. He decried this failure, noting that it removed a possible deterrent effect in future and could have an adverse impact on the willingness of allies to share intelligence with Canada. (Analysis and Recommendations, p. 261)

Justice O’Connor concluded that the orchestrated campaign of leaks about Arar by some government officials, over an extended period of time, “used the media to put a spin on an affair and damage a person’s reputation.” (Analysis and Recommendations, p. 257). He further noted an important aspect of leaks in national security matters. His words bear reflection:

“government authorities with access to classified or confidential information are in a position to sway public opinion by selectively divulging information to the media. Because the public cannot know the full picture, leaks of selected information can be misleading and unfair to individuals who may be subjects of the investigation or persons of interest to the investigation. This is especially so when the leaker adds a spin to the leaked information to get his or her message out.” (Analysis and Recommendations, p. 256)

There are some uncomfortable analogies between this historical case of leaking to the media and the current leaks on Chinese election interference. They involve anonymous sources providing selective material to chosen media outlets. They involve the media citing unnamed sources and selectively quoting from them. There was a clear intent behind the Arar leaks; and there is a clear intent behind the Chinese election meddling leaks. Both were designed to have a political impact and to sway public opinion.

The difference may be that, unlike the Arar leaks, the Chinese election interference leaks are substantially true and that, in reporting them, the media is not being spun and gulled. On balance, I would say that the leaks about Chinese election interference have much more substance, which points to greater truth content. But greater truth content is not the same thing as full truth.

The cautionary tale is this. Leakers don’t provide the full picture. Leakers have agendas. And the media, no matter how careful, can be swept away by the drama of leaks, especially when they highlight known national security threats, lend weight to fears and a climate of national insecurity, and support pre-conceived ideas. The media is, still, and thankfully, human. It is also in the business of selling stories.

The very purpose of reporting leaks by the media is to hold a government to account. That’s a noble purpose and important in a democracy. But there is a paradox. The media will call for greater transparency in response to the content of leaks known to them alone. Their calls will be taken up in the political arena. But they do not practice much transparency themselves.

In part this is for obvious good reason. The media must protect the identity of their sources. The only circumstance in which that ceases to be a binding obligation is if it is discovered that a source was lying or actually wants to reveal his or her identity.

But the media is also asking the public to trust its reporting, especially if no access is provided to the leaked documents. That is a big ask.

Is there something that can be done, especially in the context of the current wave of Chinese election interference leaks? Are there elements of greater transparency that the media could or should adopt.

Should the media provide published answers to some, or all, of the following?

How many leaked records (a running tally) have come into the possession of the media

What is the date range of leaked material

Whether leaks are coming from singular or multiple sources, and from current or former officials

Whether the leaks are coming from Canadian officials only, or from foreign sources

What attempts have been made to corroborate the leaked information and what internal protocols were used to determine reporting based on the leaks

Whether a media organization has engaged in any self-censorship to protect sensitive intelligence

What arrangements, if any, have been made with leak sources

Whether leak sources were sought out or came to media outlets unbidden

What the media would do if they determined the contents of reports based on leaks were false

I pose these as questions. I don’t know the right answers. But I do feel that when a series of reports based on leaks comes to have major consequences for public opinion, political debate, and government policy, as is the case with stories of Chinese election interference, more media transparency has to be the flip side of using leaks. More media transparency might ensure greater rigour within media organizations and might assist the public in coming to its own determination regarding news stories based on leaks.