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.

The Unsnuffable Fire

Oh yeah, I am mad. After watching Tibetan monks get clubbed on Al-Jazeera, hearing about gay activists being jailed for being, well, gay activists (most notable Hu Jia), and hearing ad nauseam about Chinese labour conditions, the other day I came to the jumping conclusion that perhaps the time of the Olympics had passed.