New PM, same old Liberal arrogance
by Robert Fulford

(The National Post, 22 January 2004)

Deep inside Ottawa's security services, one helpful but anonymous public servant has lately been trying to reveal precisely what lies behind the bizarre case of Maher Arar, a story that has been baffling the country for months. Most of us should be grateful to that person for telling Juliet O'Neill of the Ottawa Citizen why Arar was suspected of terrorist connections in the first place.

Official Ottawa, unfortunately, does not share our gratitude. Yesterday it demonstrated that it badly wants to identify and punish that source -- so badly that it hideously embarrassed itself by sending RCMP officers to make unprecedented raids on O'Neill's home and office.

When was the last time a newspaper reporter's house was searched? It sounds like a colossal case of overkill.

The government has been treating the Arar case as a fire that should be put out before it spreads further. But surely yesterday's raid, smelling as it did of police-state methodology, will have the opposite result.

Suddenly the story of Arar and his alleged connections to international terrorism seems bigger than it did 24 hours ago. By revealing their own level of hysteria, the senior security people have demonstrated that this is potentially a more damaging incident than anyone has till now understood.

Yesterday was, beyond question, one of the stranger days in the history of freedom in Canada, specifically the freedom of journalists to inform the public. On the one hand, police in Ottawa justified the O'Neill search by arguing that they were simply investigating a crime; the leak to her may have violated the Security of Information Act. But even as they were carting boxes of paper out of her house, Justice Mary Lou Benotto of the Ontario Superior Court was issuing a ruling that went a long distance in precisely the opposite direction. While the police in Ottawa were searching for O'Neill's informant, Justice Benotto in Toronto was defending, in a most emphatic way, the right of another reporter to keep secret the identity of another source.

The National Post was before Justice Benotto to oppose a warrant granted earlier that would have compelled the Post to hand over documents relating to stories Andrew McIntosh wrote about Prime Minister Jean Chretien's possible financial connection to the Grand-Mere Golf Club in St. Maurice.

The possibility of a forged document was raised, but the central issue in the Benotto decision was McIntosh's promise to keep secret the name of the man who made this material available to him.

To comply with the warrant, he and his editors would have had to violate that promise. Such a violation might sometimes be necessary, Justice Benotto acknowledged, but in this case the Crown presented no evidence of compelling need. On balance, the rights of the journalist took precedence.

"To compel a journalist to break a promise of confidentiality would do serious harm to the constitutional entrenched right of the media to gather and disseminate information," she wrote -- an opinion seldom heard in a Canadian court, and for that reason likely to be quoted for many years to come. She in turn quoted what Lord Denning wrote in England in 1981. He said that if the law compels journalists to identify those who give them information, then "Their sources would dry up .... Misdeeds in the corridors of power, in companies or in government departments, would never be known."

Which brings us back to Ottawa, O'Neill, and Arar. By his own account, Arar was innocent of all wrongdoing, an ordinary Syrian-born Canadian citizen, a software engineer living in Ottawa with his wife and children. He was arrested by American authorities at JFK airport in New York, questioned about alleged ties to al-Qaeda terrorists, then shipped off to Syria, where he says he was tortured and forced to sign false confessions before finally being released. He believes that the RCMP and CSIS steered the Americans to him. He has depicted himself as the victim of bungling and over-zealous Canadian policemen. He wants them investigated.

Last Nov. 8, O'Neill reported that the RCMP first encountered Arar while investigating what they considered an al-Qaeda support group in Ottawa. Their main target was a man named Abdullah Almalki, who is now in a Syrian prison. The detectives grew suspicious when they saw Arar and Almalki talking together. They were standing outside in the pouring rain, apparently to foil eavesdroppers. Arar has said that he knew Almalki only through business. He now disowns the detailed stories that the Syrians claim he told them, about having a code name and about military training in Afghanistan. But the O'Neill story, while even-handed, included by implication a defence of the RCMP's suspicions.

In the Arar case, now also the O'Neill case, yesterday's spectacular use of arbitrary power may well bring us closer to the public inquiry that the government has so far refused to hold. Meanwhile, it appears to demonstrate that while the prime minister changes and the Cabinet ministers change, Liberal arrogance, and the belief that the public should be told as little as possible, continue to dominate Ottawa's approach to the crucial subject of terrorism.

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