Free Speech Hysteria: Does Anyone Smell a Rat?

Studied outrage over the tribulations of Mark Steyn and Maclean’s before various human rights commissions continued this last week, with editorials appearing in both the National Post and Maclean’s.  Granted, the complaints were an abuse of process, and means need to be found to prevent the frivolous and vexatious from reaching the tribunals.  Freedom of speech ought to be absolute, no matter how odious the subject.  But at the same time, I find myself unmoved by the suppression of free speech the complaints supposedly produced.  In point of fact no one’s speech was actually curtailed.  As much as some might have wished,  the authorities have not sequestered and burnt the original Maclean’s article in any figurative or literal public square.  Mark Steyn continues to issue his screeds from his New Hampshire redoubt, unmolested.  No agents in the name of state security have hauled him to a nameless gulag.  A cursory glance at the magazine rack indicates Maclean’s still publishes openly, its reduction to the status of samizdat postponed to the indefinite future.  At the end of the fuss, it’s rather unclear as to whether Maclean’s et al. are outraged over attempts to limit their speech by a few law students, or whether someone had the audacity to challenge the received wisdom on Islam and the West.

To be sure, the importance of freedom of speech cannot be underestimated, and the complaints, where they have been adjudicated, have been rightly tossed out.  My sourness at this triumph of freedom of expression resides in the generally parlous state of civil liberties in general: the subtle contempt for notions of human rights and due process by the present government, the replacement of open and fair trials by arbitrary justice, accusation treated as evidence for determining guilt or innocence, the implicit endorsement of torture as state policy, even if we do not condone it on our own soil, the endless intrusions on individual privacy by a government already bloated with information, “no-fly” lists, and the gaping void of secrecy which obscures all of these activities  — all in the name of national security against a nebulous enemy whose strength the public cannot begin to gauge, because that too is secret.  While Maclean’s, The National Post and other organs of the free press fret away countless pails of ink on the real and imagined dangers to free speech, the erosion continues, unchecked and unremarked upon by the right-wing press (and the media in general), in this country and abroad. 

Examples of undereporting are numerous. If you believe this is because civil liberties in Canada are intact, think again.  For example, in April 2007 The International Commission of Jurists held public hearings in Toronto and Ottawa to investigate the impact of counter terrorism legislation on civil liberties. I quote part of its report at length:

The definition of terrorism and related offences under the Anti-Terrorism Act (ATA)

  • Concerns were expressed about the speed with which ATA was enacted and in particular about the broad definition of “terrorist activity” contained in the Act and the risk that the clause requiring that the act be committed “in whole or in part for a political, religious or ideological purpose, objective or cause” leads to discrimination against the Muslim and Arab communities. Many witnesses, including representatives of Arab and Muslim communities drew attention to a widespread belief within these communities that the implementation of the Act is directed against Muslims and Arabs resulting in their stigmatization and a sense of insecurity. In this context, some participants welcomed the October 2006 ruling of the Superior Court of Ontario in the Khawaja case striking down the motivation requirement provision for being a violation of the rights to freedom of religion, expression and association while others expressed concern that the decision in fact broadens the definition. The Government representatives informed the Panel that they were aware of the concerns of the Muslim community and that positive action is taken to create a climate in which these concerns can be addressed and resolved. 
  • Concerns were raised about the breadth and imprecision of terminology used in the ATA, in particular the offence of “facilitating terrorist activities” and its potential implications for charities and persons.

Privacy

Concerns were raised about warrantless electronic surveillance of international communications introduced under ATA and the lack of adequate safeguards over collection, storage and sharing of the data. Participants expressed the view that an erosion of privacy within a free and democratic society could, in the long run, make the Canadian population less secure.

Secrecy

Growing secrecy surrounding national security measures was raised as a major issue of concern, in particular, the increasing reliance on untested intelligence information that becomes a substitute for evidence. In addition, concerns were expressed about cross-border sharing of intelligence information and about action taken on the basis of that intelligence that may have been obtained through torture and has often proven to be inaccurate. These actions are a matter of great concern when liberty is at stake as documented by the Maher Arar Commission of Inquiry. In light of these concerns, the introduction of a provision in Canada’s domestic legislation to clearly prohibit the use in all legal and administrative proceedings of evidence obtained by torture or cruel, inhuman or degrading treatment was proposed by some participants.

  • Concerns were raised also about the use of security certificates under the Immigration and Refugee Protection Act (IRPA) as a form of administrative detention against non-citizens suspected of being a security threat and that, in practice, has led to the detention for years without charge or trial of those subject to the certificates with very limited judicial review.
  • Concerns were expressed about the secrecy of the proceedings (ex parte and in camera) in security certificate cases where evidence is presented only to the judge in the absence of the suspect and his or her counsel who only receive an unclassified summary of those proceedings. 
  • Although almost all individuals subject to security certificates have been released as a result of the Charkaoui decision, strict conditions and limitations have been imposed on them affecting their freedom of movement and their right to privacy. These measures constitute a severe form of punishment for persons who have not been accused or convicted of any crime. Several participants have expressed scepticism about the possible resort to special advocates as used in the United Kingdom as this system also falls short of guaranteeing due process rights.

 Deportation on the basis of diplomatic assurances against torture

  • Serious concerns were raised about increasing reliance upon diplomatic assurances against torture to deport non-citizens suspected of involvement in terrorist activities. It was stressed that such deportation constitutes a major departure from the absolute prohibition in international law to send persons to countries where they face a risk of torture or ill-treatment.

This collection of particulars, from government invasion of privacy, to effectively imposing punishment on suspected terrorists without trial, to the use of immigration law as a tool to detain suspected security risks — an abuse of process if there ever was one — garnered exactly two references in the Canadian media, a Canadian Press story subsequently picked up by a Montreal radio station. In contrast, a quick Google News search on the Steyn complaint yields 398 returns. Bloggers in this case did a bit better: three posts referred to it.  The outrage was palpable, except it wasn’t.

Or we can talk about the larger international scandal of detainees in United States custody.  Sami al-Hajj, an Al Jazeera journalist was released from prison four days ago. If you haven’t heard of him, don’t be surprised: the likes of Maclean’s and Mark Steyn –or CBC, CTV, or CanWest Global– aren’t particularly interested in his plight.  He was one of the 275 faceless prisoners still remaining in American custody at Guantanamo Bay.  He was arrested in Pakistan after the Afghan invasion, despite being accredited with Al Jazeera, apparently for the crime of being Muslim, Sudanese, and a journalist all at once. He had obtained an interview with Osama bin Laden and between 1996 and 2000 he transferred money at the behest of his then employer to Islamic charities linked to terrorist activity.  He spent 78 months at Guantanamo as an “enemy combatant.”  No charges were ever laid. He was never tried.  His lawyer was prevented by law from seeing the evidence against him.  He went on a hunger strike, and for the last sixteen months he was force-fed by means of a naso-gastric tube twice daily, a procedure when administered against an unwilling person, is the very definition of torture. When finally released, one imagines a few hushed words of regret, a token offer of compensation, a handshake and the equivalent of a second-hand suit and a bus ticket.  There was none of that. Instead, he was blindfolded, handcuffed and chained to his seat on his flight home.  “In Guantanamo,” he says, “rats are treated with more humanity.” One can believe it.

Sami al Hajj’s treatment at the hands of U.S. authoities is not unusual.  The 275-odd prisoners still confined at Guantanamo are just the beginning.  Reprieve, one of the few organizations which will advocate for “enemy combatants” estimates that 14,000 men are imprisoned in secret American jails, caught in a Kafkaesque nightmare of bureaucratic doublespeak, without legal recourse or even simple hope, and in far worse conditions than Guantanamo. 

Which brings me back to Maclean’s, The National Post and other media organizations which tilt rightward.  How many column inches did the magazine, or any other media outlet in Canada devote to the story of Sami al-Hajj, or to any of the thousands languishing in secret prisons, or even on the concerted attack on civil rights in this country in the past year?  Instead we receive lengthly sermons on the supposed threat to individual liberty posed by those firebrand, authoritarian-minded human rights commissioners  — a danger that in any reasonable analysis is negligable and in any case easily fixed, at least compared to the hysterical morass of anti-terrorist measures. Free speech is integral to civil liberties.  But does anyone seriously think Mark Steyn’s right to free speech and Maclean’s right to publish this speech was ever in jeopardy?  There is a certain gap in credibility, where the rightwing press can mouth pieties about free speech while wilfully ignoring more egregious violations of human rights.  Apparently the rights of well-connected pundits and the corporate media are sacrosanct.  Everyone else can go rot.

One suspects under different circumstances the hue and cry might be different and–let’s say it softly–another agenda might be at work. Fulminations against the imposition of the War Measures Act in 1970 and the civil rights iniquities of Pierre Trudeau are still regular fodder for pundits even now, twenty-four years after Trudeau left office.  Under the present government, not to mention the Bush Administration, similar abuses of power, and worse, are given a pass.  It should not be forgotten either that human rights commissions have been intensely disliked by conservatives since their inception.  They interfered with property rights, said conservatives, or religious or personal belief , and  they even proposed the hackneyed arguments that more appropriate remedies were to be found in the market place or the civil courts. (Let pass that not so long ago racial and religious discrimination was justifed by Holy Writ, and that the poor and marginalized haven’t the money to buy their way out of discrimination or launch a lawsuit.)  However unjustified the proceedings against Steyn and Maclean’s, their cause has become a vehicle to attack the HRCs in general as inquisitional bodies hellbent on destroying individual liberty, whether the facts bear this interpretation or not. Lastly, can it be that the conservative media has bought the government’s position that the threat of Islamic terrorism is so overwhelming that the safety of all is worth the sacrifice of a few civil liberties and the notion of due process?  Subtext: the story is already done (though the abuses continue,) the debate is over, and who really cares if a few grubby Muslims are caught up in the net.

Complicity with the authoritarian’s eternal cry of safety trumping freedom or even silence becuase one has common cause with the ruling party’s ideology, is a dangerous game for the conservative press.  At best it exposes the rhetoric around freedom of speech for what it is — rubbishy cant.  In the long view, secrecy, arbitrary proceedings, extraordinary renditions and the rest of it are the antithesis of democratic society, for ultimately all of these are the root of corruption of power and the seeds of tyranny, where no accountibility is possible: a no man’s land where predators roam freely.  The contrast with the much-maligned human rights commissions, with their insistance on due process and open proceedings, accompanied by a vigourous debate on their purpose and relevance, could not be greater.  It is a contrast worth pondering.

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7 Responses

  1. A well written article! I must however take issue with the last paragraph- you have it exactly backwards. The complainants in the Macleans case argue that their “right of reply” (a new right seemingly conjured out of thin air) is essential for their security. Macleans isn’t fighting this battle for security reasons, or even freedom of speech. It is a property rights issue. Can any group force (or get a HRC to mandate) a private publication to publish their screed? The smart money in Canada would bet yes. Unfortunately, property rights are an “American value” and get pretty short shrift in Canada.

  2. Macleans hasn’t been shut down or anything but they have to waste resources answering frivolous complaints that violate their human rights at “human rights” commissions. That’s the problem. Pretty obvious really. Why would you use the word “hysteria” to describe people who object when their rights are violated?

    I smell a rat too: some people complain about “censorship” in Bill C-10, meanwhile Howard Stern was actually forced off the air and TV channels like Home Box Office are verboten in Canada. These are much clearer censorship issues.

  3. you completely missed the point of the Macleans case. The point is that people that are brought before these tribunals at there own cost as well as not being granted the right to defend themselves. The defendants cannot provide evidence, cannot cross-examine witnesses and are basically proclaimed guilty before a judge who may not even be a judge.
    As for Gitmo, I mean I have been hearing this liberal crap about human rights abuses for some time and there is NO evidence of human rights abuses. In fact most of these detainees have it better down in gitmo then they did back home as most of them have gained weight and are healthier down there. So a bunch of killers have to live in a caribean cell for the rest of their lives. Small price to pay for killers.

  4. I confess to being a little gobsmacked when after arriving home, I found (as I write) 552 people visited the blog so far today and 332 viewed this post.

    A good deal of this traffic has been directed in from Mark Steyn-related websites. The irony of this hasn’t escaped me.

    I draw two lessons. First, the Internets is a wonderful thing, and second, mentioning Mark Steyn is an easy way to draw traffic to your blog.

    I thank everyone for their comments. Keep ’em coming. I need the validation.

    Paul: Your point is taken, thank you. I was reading in The Economist today that Slovakia as passed a law mandating “right-of-reply” in the press if someone feels offended by anything published. Similar laws exist in other European countries as well. Nasty precedent, i think.

    Sporadicus and Robert: In case i wasn’t clear enough, though I said it a few times in the post, HRCs have no place judging what constitutes acceptable speech, and ought to be reformed. Free speech is an absolute value in a democracy. As for hysteria — well, given the thousands of column inches devoted to this story, when no one has actually been censored, I think I was moderate in my evaluation. As for Gitmo: being unjustly and arbitrarily imprisoned, even if one is well treated, healthy and eating sirloin every night, is still being unjustly and arbitrarily imprisoned. It’s a blot on on a nation that claims to have a fair and equitable justice system, and there is a ton of anecdotal evidence to suggest Gitmo has done a huge amount of damage to the cause of democracy in the Muslim world. If it is liberal crap to suggest the United States ought to live up to its ideals, then pass me the shovel.

  5. I think you totally miss the broader picture. While it is true that it appears free speech has not been stifled, the fact is when other publishers and writers see what this is costing Macleans and Mark Steyn they may be reluctant to publish articles related to this subject, and as a result, free speech has been affected. Intimidation can be a powerful force.

  6. I love this kind of argument: Mark Steyn hasn’t been arrested and sent to a gulag, therefore no censorship took place.
    The point is not that magazines are going to be shut down by the government and the editors and writers sent to a concentration camp if the HRCs are not reighed in. The point is that magazines, and radio stations, etc., especially those with shallower pockets than Macleans, won’t be able to afford touching any controversial issue under the constant threat of having their financial and manpower resources drained by frivolous complaints. With HRCs, the process is the punishment, regardless of the outcome.
    If this danger seems “negligible” and “easily fixed” to you, then your analysis might be in some abstract way reasonable but it is not very realistic.
    As for Gitmo, I wonder how did you managed to get access to all the relevant facts of their cases so that you can know for a fact that the detainees have been imprisoned “unjustly”.

  7. Your comments, as always, are welcome, and I thank you.

    Brenda: I agree, sort of. The broader picture I see are equally important rights relating to due process, rule of law, and so on, constitutionally enshrined, and in fact far older than the Charter of Rights being continually eroded. Conservatives who used to decry such assaults on civil liberties are now oddly silent.

    I think it is possible to be of conservative bent and be profoundly concerned about civil liberties and human rights, for everyone — indeed it should be a natural. I don’t see alot of evidence of this in the conservative press.

    Agnostic: I am not sure if your fears are actually founded in fact. Media organizations “with shallow pockets” (as you put it) — I’m thinking of local radio stations, newspapers etc are as about as likely to touch really controversial issues as the Toronto Star is likely to publish a paeon to S. Harper. (Not to say it doesn’t happen…) I think the danger of the editor of say, The Peterborough Examiner, spiking a story because of some vague fear of incurring the wrath of the OHRC is more apparent than real. Partly because of the fuss already incurred over the Maclean’s case (the issue has been tested and rejected), partly because the focus of local media are on issues of local interest, but mostly because in most localities, there is no “independent” media in any real sense: editorial content (and comment) is fixed by corporate headquarters, who are advertiser-wary and consequently adverse to real controversy.

    Re Guantanamo: I think the argument of apologists for this detention centre (and others like it) is that it operates under law duly scrutinized and passed by the US Congress and signed by the American president, therefore it does not operate outside the rule of law. This strikes me as legal sophistry of the worst kind, for it covers with a lawful figleaf what are clearly violations of US and international norms of justice.

    I think it is telling only this month the first of the prisoners is actually coming to trial. And even John McCain has called for the prison’s closure.

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