The department’s decision, outlined in newly released documents obtained by the Citizen, is the result of a test of the Access to Information law by two Ottawa lawyers, Paul Champ and Amir Attaran.
To see how far DND would go to prevent the release of information about captured Afghan insurgents, Attaran requested copies of photographs the military took of such individuals but asked that the faces of the prisoners be completely blacked out and that only the hairdos of the detainees shown.
Information Commissioner Suzanne Legault, the government watchdog for the Access law, also recommended DND release the heavily censored photos.
But the DND documents obtained by the Citizen through the Access law outline the department’s view: releasing the photographs of the hairdos of captured insurgents would violate their privacy rights and could hurt national security.
“National Defence will not follow the recommendation made by the Information Commissioner of Canada regarding disclosure of photographs covered by this file and is prepared to defend the decision in court if necessary,” Julie Jansen, head of DND’s Access to Information branch, wrote in the October 2010 briefing note.
Jansen argued the photographs constituted “personal information” of the insurgents and releasing images of their hairdos would “probably cause injuries related to national security.” She didn’t explain how the hairdo photos would harm Canada’s security.
In an attempt to determine if detainees had been tortured, Attaran had originally requested through the access law copies of photographs that DND had of captured individuals. The department, however, refused to release those.
That’s when he resorted to the request for just the images of the insurgent hairdos.
Attaran said DND’s claim it can’t release photos of hairdos because it must protect the privacy of the alleged insurgents is ludicrous. “The same government that says those detainees have no rights under the Charter of Rights and Freedoms now embraces the idea that detainees have rights under the Privacy Act,” he explained. “The government’s position is that these persons have privacy rights but no constitutional right to avoid torture.”
An email sent Friday by DND noted the decision to withhold the 28 photographs was based entirely on enforcing the privacy issue. It did not mention the earlier claim by Jansen that releasing photos of detainee hairdos would harm national security.
The email noted the Privacy Act protects the privacy of individuals with respect to the information held by the Canadian government about them.
Some legal specialists, however, have noted that Canada’s Privacy law applies only to Canadians and permanent residents.
Attaran pointed out the U.S. government released through that country’s Freedom of Information law the photos of Iraqis being tortured and abused at the Abu Ghraib prison, while in contrast the Canadian government and military have only put roadblocks in the way of releasing information on the detainee file. The fact that DND is willing to spend unlimited amounts of money preventing the release of censored photos reveals the lack of transparency, he noted.
“We were proving the point about this paranoid secrecy of don’t reveal or disclose anything,” added Champ.
The detainee issue has dogged the federal government for years after allegations that some prisoners had been tortured. Hearings were also held by the Military Police Complaints Commission into how investigations into such issues were handled by Canadian military police.
After diplomats and human rights groups raised such concerns the government altered its detainee transfer policies and worked to improve conditions at the Afghan prison in Kandahar. But various Conservative government ministers also accused those who raised questions about the alleged torture as being unpatriotic or Taliban sympathizers.
Attaran and Champ initially launched a legal challenge against DND’s refusal in the hairdo issue after the information commissioner declined to go to court on the matter.
But Attaran said that challenge will not proceed because of the cost and the fact he and Champ are involved in a more important legal challenge against excessive government secrecy.
That case involves the decision by the Conservative government to prevent the release of surveillance records produced by the RCMP from the 1930s to 1970s on former NDP leader Tommy Douglas, the father of Canada’s public health-care system.
Under the access law, personal files gathered by the RCMP’s intelligence branch could be released if the subject has been dead for more than two decades.
But the government has argued the release of the 75-year-old surveillance records, requested under the Access law by a Canadian Press journalist, would endanger Canada’s security and violate privacy.
Champ and Attaran’s legal attempts to force the release of the decades-old records was successful in August when the Federal Court ordered Library and Archives Canada to review its decision to withhold the documents.
The Conservative government, however, has refused to follow that decision and plans to appeal the ruling.
The ruling by Federal Court Justice Simon Noel also admonished the office of the Information Commissioner who supported the government in its claim the records could harm Canada. The court questioned whether the watchdog was properly doing its job, noting it was “surprising, if not worrisome” that the Information Commissioner accepted with little question the government’s claim that the release of the surveillance records on Tommy Douglas could harm national security.
“The evidence on the record, both public and confidential, does not establish that the Office of the Information Commissioner duly acquitted itself of its duties,” the ruling noted.
Original Article
Source: Ottawa Citizen
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