Legal and spatial reaction(s) to terrorism: information secrecy v. public information... in courts and other public infrastructures.

Student: Peter Timusk B.Math, third year undergraduate Law and Geography minor in ethics of technology.

CARLETON UNIVERSITY CRIMINAL JUSTICE AND SOCIAL POLICY SUMMER SCHOOL 2004 MAY 17 TO JUNE 25

Human Rights and (Over) Reaction in a Security Conscious World

Course: LAWS 4701A

Title: Sovereignty & Security: Balance in an Unbalanced World

Instructor: Chris McNaught

Acknowledgments: Thanks to Khadija Uddin from the Paul Menton Centre and Megan in the Writing Tutorial Service for their astute proof reading help. Without their help my arguments would not be as clear as they now seem. All errors remain mine

Web Publishing Note: this essay will be web published after it is graded at the author's legal studies essays web page < http://www3.sympatico.ca/ptimusk/law.html>.

Introduction

There are two competing agendas we will examine in this paper; both pull on information. The one agenda is the law trying to suppress and keep information secret. The other agenda is the community at large, defendants and their lawyers, free speech advocates, and security agents, trying to disseminate information and make it available to the public. The government and the law also in some cases want information to be made public. These agendas about information disclosure obviously clash. In the case of terrorism the clash is very loud.

Legal responses to terrorism

The law does not always want to keep information secret. We will examine the case of intelligence information used as evidence in certain criminal cases that the government does not want to expose. So when is government immune from disclosure? When can the government keep its case against a criminal secret? When can the government use information in court at trial and not expose the information in public?

In an organization a secret meeting is called a meeting ‘in camera’. The meeting is closed to the media and the public. We want to examine a very serious form of information though, intelligence information. If the information were less serious, as it might be in a city hall meeting or lesser crime than terrorism, the information would perhaps only be heard in provincial court.

Disclosure

Disclosure of the prosecution's case in court to the defence is a part of the rules of evidence. Although D.M. Paciocco & L. Stuesser in their legal text, The Law of Evidence, say that “Carey v. Ontario¹ is the leading case on the common law approach to public interest immunity”,² whereby governments can protect information from disclosure, this applies to only provincial courts where Carey is the standard. The authors of this legal text continue to describe the changes to the Canada Evidence Act, (1985),³ amended by the Anti-Terrorism Act, (2001),⁴ concerning all courts where disclosure of security information is controlled by statute, not common law.

“ The common law position, whereby the courts have the ultimate say over all types of government claims of protection, can now be compared to the immunity under statute because of the Anti-Terrorism Act, (2001). Sections 36.1 to 39 of the Canada Evidence Act apply.” ⁵

That is to say that the Anti-terrorism Act, (2001) has amended the Canada Evidence Act, (1985) so that the Canada Evidence Act, is now a statute that prescribes limits to courts and the common law concerning disclosure of government information. This act now protects government intelligence information from exposure. Particularly Section 37 which covers “specified public interest”⁶ and Section 38 which covers “sensitive information” or “potentially injurious information” were amended.⁷ Thus government can apply sections of the Canada Evidence Act, (1985) to information used as evidence in court to protect this intelligence information from disclosure.

To protect the intelligence community or intelligence information used to convict terrorists, the government would keep this information secret. Information could be claimed to be ‘sensitive’ or ‘injurious’ if exposed to public view. The law here would be working to help the government protect the collective freedom and security of the nation. This action would be labeled ‘in the interests of national security’ or as it is expressed in the clause in section 38, it would be to protect the exposure of information that would be defined as sensitive to exposure, or information that could cause injury if exposed. If court evidence was made secret then it would not be disclosed. This decision to keep the information secret could be appealed by the defense. The appeal to non-disclosure of evidence would be decided by a judge in a federal court or provincial court of appeal in these cases of serious crimes like terrorism.⁸ The information is made secret by the attorney general or other court or public official.⁹ The judge would be responsible for deciding the sensitive or injurious nature of the information if exposed. The judge would decide this in the original trial, and then a different judge could decide this if the secrecy was appealed in a Federal court or provincial court of appeal. All this is prescribed by the new sections of the Canada Evidence Act, (1985). In usual non court matters concerning the classification of information, as sensitive or injurious if exposed, a security officer, possibly someone from the Canadian Security Intelligence Service, (CSIS) would have classified the information as protected, confidential or secret.

So there are three possible classification's of information in the government: protected, confidential and secret. Each of these classifications has layers A and B. Thus protected A is most information where the threat of injury or sensitive nature after exposure is minimal or actually non existent. Thus most information that is provided about government activities is classified protected A. Even the press or someone using the Access to Information Act, (1985),¹⁰ would only access this first type of information. Protected B might be information which causes the government embarrassment but no real harm.

Then there is the confidential classification level for information. Confidential information at the A layer or B layer would rarely leave itself open to exposure. Confidential B might be information about someone's health records such as a doctors record or an OHIP file. Confidential B information might also be employment information or human resource files.

The final secret level also includes layers A and B. Secret A would include secrets that could be injurious or sensitive, or could affect national security. While secret B would be top secret and would be almost all military or intelligence information. The government will go to great effort to stop Secret B information from being exposed.¹¹ This is a classification system the government has used in the past.

By protecting intelligence information the government will be protecting the methods and agents of its intelligence services. The idea of protecting national security and foreign intelligence services who aid Canada, according to Kent Roach university of Toronto law professor suggests, is a reason, that the courts will not strike down the new Anti-terrorism Act as unconstitutional by the Charter of Rights and Freedoms.¹² The courts have tended to protect the nations security services as evidenced, Roach points out in Ruby v. Canada 2002 SCC 75.^{13 14} In Ruby, the Supreme Court ruled, because of national security concerns, against disclosing information that CSIS had collected about Mr. Ruby to Mr. Ruby, a trial lawyer who had taken up controversial cases and was trying to access his security file using the Access to Information Act, (1985). Roach feels that the courts will find the new provisions generally to be balanced and justified by the needs of the democratic society as against the needs of an individual accused. But this will be a balance using the standard Oakes test,¹⁵ but different because of the element of national security.¹⁶ In the Oakes test, this limit on disclosure maybe justified in a free and open society to protect against terrorism which is the new disclosure law’s purpose. While Roach may not agree with this result he has reported that this is how the courts will most probably respond to Charter challenges of the Anti-terrorism Act.¹⁷

Perhaps this is right; that intelligence services and their sources should not be disclosed in these cases. In the context of terrorism, the information can be thought of as needing protection from falling into the wrong hands, just as guns should not be in the hands of children or dangerous offenders. But of course, Roach states correctly based on criminal law principles, that without fair disclosure, innocent people will not be able to defend themselves.¹⁸

Also federal judges will now have to determine national security issues. Besides the heated civil liberties debate of who defines and what defines national security, judges do not have the international espionage knowledge they need to do this task. Also, the judges may not be able to determine intelligence matters.

Law Professor Kent Roach analyses Bill C-36 which became the Anti-terrorism Act, (2001) in his book September 11^th : Consequences for Canada.¹⁹ He describes various areas of the new law. In each area he examines the voices that attempted to change the bill including “civil society”, the criminal law bar and various other groups including the government itself.²⁰ He suggests that the criminal law is being reformed to react to “horrific events”,²¹ and in this process it is losing its basis in fundamental justice, and the principles of criminal law.²² He sees this as a modern trend in reform.²³ He describes the process of legislating the new Anti-terrorism Act and its various subsections as these became the law, and how changes and differences from the previous criminal law reflect recent trends in criminal law reform.²⁴ He examines how this new law will hold up to Charter challenges.²⁵ He describes the difference in traditional disclosure laws and evidence laws and the new laws that are a result of the new Anti-terrorism Act, (2001).²⁶ Taking a lead from Canadian physicist and pacifist Ursula Franklin, and the American National Research Council’s report on September 11^th, Law Professor Kent Roach concludes his book...

...a disaster-based approach that relies on technology, better emergency responses, and the control of weapons and other hazardous substances also poses less of a threat to liberty, privacy, and equality than one that relies on criminal investigations and prosecutions. It may also avoid some of the threats to human security that are caused by the use of war as a blunt and bloody instrument against terrorism.²⁷

Thus we may want, if we follow this argument, information or technology to solve problems but may also want to control information, such as keeping information secret, as though, information were a weapon to control and guard.

Spatial and technological responses

The spatial responses we will examine include control of Geographic Information Systems (GIS) and public data, as well as, surveillance of cities and ‘designing out’ terrorism by using architecture. We will also cover some of the more vague definitional concepts of terrorism. This will lead into a discussion of the problems with technology as a solution. Showing that there is a different scale on the map to anti-terrorism in the post-modern world might support arguments for or against the military involvement in anti-terrorism. We will examine other smaller scale spatial responses in this section by examining writing on the design of anti-terrorist architecture and surveillance and this will take us back to the theme of information secrecy. So this section will go from computer screen maps and public information to boundaries and scales of conflict into technological solutions and then examine ‘designing out’ terrorism with changes to buildings and street architecture in London, England. We will then close by looking at video cameras in New York City. For this we will draw on the work of the New York City Surveillance Camera Players. We will tie in the Japanese Aum terror group and the Irish Republican Army (IRA) to this broadly geographic section.

Geographic Information Systems

“A GIS is a combination of computer hardware and software.”²⁸ There is a vast amount of collected data in our world(s) these days. Much of the data collected geographers argue has a place, in other words it is spatially located data. When the Canadian census is recorded the answers come from a person or family with an street address. The data can be associated in a computer database with this street address. Each demographic variable can be placed at the point on the map of the street address. Using a GIS the data can be placed on a map on a computer screen. One can access the data by placing one's mouse over the computer map and then querying the database. Also data can be seen proximately. For example, an emergency shelter can be ‘seen’ to be close to an emergency event and routing can occur efficiently.²⁹

But what is an open GIS and what is a closed GIS? And what is public architecture and what is private architecture? What is public knowledge or public information? These questions come to light in this section. Much information about space and geography is now being hidden in response to terrorism.

In fact, even in issues involving our border with the USA certain utility structures, such as a specific hydro dam on our border, are no longer public structures. In fact, employees are no longer allowed to discuss their work at the dam. Public tours of the dam have been suspended. Also maps, or perhaps a GIS, are no longer allowed to show in detail the buildings that comprise this utility structure.³⁰

A booked titled The Geographic Dimensions of Terrorism is full of GIS ideas for responding to terrorism.³¹ It was written by professional geographers after the September 11^th, 2001 attacks. Often though these technological solutions are impractical and in some sense are pipe dreams. There are doubts that we can all become aware of the powers of GIS technology and that first responders, in particular, will be able to use these technologies effectively in emergencies. It is improbable that we will be able protect every building, in every city in the USA, by three dimensionally mapping the buildings in computer simulations.³² But this is what Mei Po Kwan suggests in his article for this book.³³ As well as, that impracticality, that picture doesn't take into account the possible protection of every building in the world.

This geographic information is also being kept secret and classified. Following the attacks of September 11^th, public information in map form was taken out of circulation by the government.³⁴ There is a discourse these days where information's sensitivity is judged by its potential misuse, if disclosed to terrorists.

Enlarging the Scale of Anti-terrorism Activities

Meanwhile anti-terrorism is now being practiced at a larger scale in fact the campaign against terrorism is no longer confined to a state police or even interstate police effort. It has grown in scale. The terrorism problem is proving to be a global problem with attacks occurring wherever and whenever, thus causing global instability for the new world order.³⁵ Hit and run guerrilla warfare tactics practiced by states at war and crimes of mass murder by non-state actors are both to be defined as terrorism, by Canadian defense policy history writers Douglas L. Bland and Sean M. Maloney in their book Campaigns for International Security.³⁶ Military responses to terrorism are new and according to these authors started in 1990.³⁷ There is definitely a blurring of views and scales at work.

Certainly the militaries of the world should be held on account for killing innocent lives. This would also show balanced criminal law enforcement in the face of more deadly killing technology. Some scholars like Chris Hables Gray, say we are seeing the end of war because our technologies of war are now too dangerous.³⁸ They see that war is too destructive to be fought any longer and because wars are used to build nations, nations are now slipping away from the landscape of political expression. The end of war is the end of the nation state at least in the case of the USA where wars must continue to be fought to support the state's existence.

Technology as a Solution

Also professor Gray suggests information and technology’s usefulness in warfare is an illusion. Between the building of knowledge from raw information,³⁹ which is what all these technology and information responses to terrorism attempt, and ‘future shock’ change, and information overload, information technology will not prove useful in warfare. Instead, it will be useful for extending military budgets without providing more security and peace.⁴⁰

Professor Gray further examines high technology solutions to high technology terrorism specifically in his book cyborg citizen⁴¹,

Technoscience has gifted us with incredible destructive powers. What do we do when they are used by small groups of clever nuts who have been driven insane by society’s rapid transitions?....The Aum group from Japan, famous around the world for its nerve gas attacks, was in many ways the first cyborg death cult....members had totally embraced the idea that they were cyborg supermen....The danger of groups like Aum is real. But perhaps the “cure” for such terrorism is as dangerous as the disease. Using high technology to combat the threat of high-tech terrorism has tremendously corrosive effects on our freedoms, especially from government coercion and surveillance. Video systems have proliferated.⁴²

Surveillance Cameras

Video cameras provide information to the person watching the camera. These also gather information and save it for access on video tape at a later date. Thus a crime recorded on a video tape from one these cameras can be used in evidence at court trial. The City of London Police use video cameras against the Irish Republican Army ( IRA).

The British have experience with the IRA and their terrorism. Jon Coaffee studies and writes about anti-terrorist architecture in London.⁴³ The architecture of London England has changed to keep the city a global business centre. The city has rebuilt 33% of itself “in the mid-1980’s to early 1990’s”,⁴⁴ because of “competition from other financial centres.” At the same time, Coaffee claims the city has changed to protect itself from terrorist bombs under the influence of dominant voices.⁴⁵ These voices were the City of London Police and the Insurance companies. Traffic has come under control in the name of traffic calming and environmental traffic measures but at the same time, a police and security agenda has suggested these changes to the urban landscape.⁴⁶ Insurance companies have also pushed for these changes.⁴⁷ Private building owners were encouraged to place Closed Circuit Television (CCTV) cameras and take other measures such as employing private security guards.⁴⁸ These guards control access to buildings and also patrol the exterior.⁴⁹ In one case at least guards actually stopped a bombing. Although they did this with a routine search of a car not a camera.⁵⁰

The use of surveillance cameras is not going unnoticed by radicals and academics nor by police officers. The New York City Surveillance Camera Players are exposing the locations of surveillance cameras in New York City. They are mapping the locations and giving walking tours of the cameras to supplement performances they give in front of the cameras. NYCSPC argue the gathering of surveillance information needs to be limited to private property and not allowed into public space. According to one of their founders Bill Brown there are 4 million video cameras in England with many in London and this number is doubling or tripling every year. He suspects that the number of cameras in New York will also grow at this rate. His group estimated there were 2397 cameras viewing public space in Manhattan in 1999.⁵¹

In Peck v. the United Kingdom, [2003], the European Court of Human Rights found that there were insufficient safe guards to prevent disclosure of information taken from CCTV cameras.⁵² The R.C.M.P Commissioner Guiliano Zaccardelli, has also said we need standards before Canada uses more cameras.⁵³

Yet security agents need these cameras to reduce terrorism and crime. In London the use of urban design against terrorism included traffic stops and searches as well as cameras. Coaffee quotes the Commissioner of the City of London Police from their annual report in 1994 as saying “camera technology...was exceptionally successful”.⁵⁴

Conclusion

Information needs to be exposed to the government or security agents about the activities of terrorists. However information about targets and the intelligence community needs to be kept secret from terrorists. This places the concept of information at a place of multiple meanings and ambivalence that perhaps only post-modern scholars will be able to study. The only absolute possible with the concept of information is ‘us v. them’.

At this point in this paper, one might be wondering about information warfare or cyber-terrorism as a possible consequence of the dialectic of information’s openness/closeness. Maybe information can be the target of terrorism? Certainly computer security scholars can write about information warfare and warfare, in terms of information technology.⁵⁵

Even a Canadian psychologist, Marc Rogers has written about the dangers of cyber-terrorism.⁵⁶ But there has been no cyber-terrorism. He says it will occur shortly. In the same article, he says that the terrorist’s psychological time line is to look to the future where the government will change, or the homeland will be restored.⁵⁷ Yet, are we not also looking to the future in preparing ourselves for the cyber-terrorist or to be worried about possible cyber-terrorist attacks on our computers? Who is social policy being created for, the future view of the terrorist, or the anti-terrorist? And who is planning for this future? Again, to view terrorism absolutely we must see it is an ‘us v. them’ problem. This view of ‘us v. them’ has never been a healthy one for a human society. But terrorism has never been a healthy situation for a society either.

We need instead of speculating about cyber-terrorism, to see the dialectic of the openness and closeness of information that comes from terrorism’s threat. Then we need to take a firm stance on information, adjusting the secrecy of the public and publicized information in appropriate cases. We must be certain that terrorists do not have information and and we comfortably have information needed in case of attack. This will require that someday we define ‘who we are’, and who the terrorists are, but that definition may like the information involved, be forever an ambivalent definition.

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