Surveillance, Intimidation, Arrest: When Law Enforcement Targets Journalists in North America

Wednesday, August 10, 2016
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By Nathan Munn

Joel-Denis Bellavance and Gilles Toupin had no idea they were being followed.

It was August 2007. The two veteran reporters for Montreal-based newspaper La Presse had written a series of articles about an alleged terrorist plot involving Adil Charkaoui, a Canadian citizen who had been arrested under the provisions of a government security certificate in 2003. At the time, both Charkaoui’s arrest and the use of security certificates—which have since been ruled unconstitutional by the Supreme Court—were highly controversial.

Security certificates were prepared by the Canadian Security Intelligence Service (CSIS) and allowed people to be arrested and detained without charge, based entirely on secret evidence. Typically, individuals arrested using security certificates were described as threats to national security but never charged with a crime. A similar legal tool used today is the ‘peace bond’, which allows police to arrest citizens who have not yet but ‘may commit’ offences ranging from participating in a terrorist group to advocating or promoting terrorism. It essentially allows Canadian law enforcement to act with impunity.

This is what happened to Charkaoui, who appealed his imprisonment four times before finally being released on bail in 2005 after nearly two years in prison. So when an official CSIS document with details about the government’s case against Charkaoui was leaked to La Presse in 2007, Bellavance and Toupin wasted no time publishing stories about it. The leak was big news, but what happened next would become an even bigger story nine years later and provide an example of the risks that come with being a journalist in North America in the era of the ‘war on terror’.

In 2016, it was revealed that after the stories citing the leaked CSIS document were published, a rogue team of RCMP officers began a completely unauthorized campaign of physical surveillance on Bellavance and Toupin in an attempt to find the source of the document leak.

The team spied on the reporters for nine days, at which point the officers decided to ask their superiors for retroactive permission to conduct the surveillance campaign. After being denied authorization, they asked again; denied a second time and reprimanded in writing, they asked yet again. Finally, the team was granted partial permission by RCMP assistant commissioner Bob Paulson to conduct “limited surveillance” on the journalists.

The fact that a rogue group of federal police officers would conduct illegal surveillance of professional journalists at the behest of Canada’s national spy agency is profoundly disturbing. Unfortunately, the Bellavance and Toupin incident represents just one example of the harassment, surveillance, intimidation and punishment that journalists across North America are suffering regularly in the present day, simply for doing their jobs.

Journalism Under Attack After 9/11

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Since the terrorist attacks on September 11, 2001, journalists and news organizations around the world have faced pressure from law enforcement agencies, politicians and pundits alike to disavow the responsibility to press freedom that journalism holds sacred, replacing it with a subservience to political pandering in the name of ‘patriotism’ or a misguided sense of propriety. This anti-intellectual crusade has denigrated the quality of political and cultural discourse in general, but it has had devastating consequences for journalists and free speech advocates in particular.

In Canada, the ‘new normal’ for journalists became crystal clear on January 21, 2004, when RCMP officers raided the home of Juliet O’Neill, a journalist for the Ottawa Citizen. O’Neill had reported on documents related to the case of Maher Arar, a Canadian engineer who was detained by U.S. authorities and unlawfully deported to Syria on the basis of suspected ties to terrorism. (Arar was ultimately cleared of any wrongdoing and awarded $10.5 million in a settlement from the Canadian government for the torture he endured.) O’Neill, whose notebooks, computer files and personal diaries were seized during the raid, was never charged with a crime. In 2006, an Ontario provincial court ruled that three provisions of the secrecy law used to justify the raid on the journalist’s home were unconstitutional, and criticized the RCMP for intimidating O’Neill.

Despite the ruling, some police in Canada have continued to display antagonism toward journalists, especially those who shed light on subjects or events that the government would prefer to avoid publicizing.

Montreal Protests

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In Montreal, the assault and detention of journalists by police during street protests became so commonplace in recent years that CJFE and the Canadian Association of Journalists (CAJ) reached out directly to Montreal’s chief of police and mayor to open a dialogue about the problem. Fortunately, the response was positive and in 2015 CJFE moderated a meeting between police and independent journalists to work out a policy of cooperation during protest situations. CJFE Executive Director Tom Henheffer went to the 2016 May Day protests in Montreal to see the results of this agreement firsthand and reported that there were improvements on the part of the police in terms of how they treated journalists during the heated demonstrations.

Despite these positive steps, it remains to be seen just how deep the Montreal police’s newfound respect for journalism runs; Henheffer noted that the police still have no problem with preventing journalists from doing their jobs. While public protests undoubtedly present unique challenges for city authorities, civil servants—especially police, with their powers of arrest and detention—need to be reminded that they are employed by and mandated to act in service of the public, not to prevent citizens from expressing their rights and freedoms. Moreover, the right and responsibility of journalists to do their jobs, particularly in volatile and unpredictable situations, needs to be protected, not hampered, by police.

RCMP vs. VICE News

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One of the most recent examples of law enforcement overreach in response to lawful journalism in Canada occurred in 2015, when the RCMP served a production order to VICE News reporter Ben Makuch, requiring him to hand over all records of his communications with Farah Shirdon. Shirdon, a Canadian man from Calgary who is alleged to have travelled to Syria to join Daesh (ISIS), had been the subject of an article by Makuch. The RCMP was also granted a request for a gag order on the case, preventing VICE News from reporting on the production order they received.

When the order expired in 2016 and VICE News was free to report on the situation, the public reaction was swift. Civil liberty and press freedom organizations condemned the ruling for setting a dangerous precedent regarding the right of journalists to protect their sources in the pursuit of stories that serve the public interest. The idea that journalists could be treated as de facto extensions of law enforcement disturbed even Canada’s more politically conservative media outlets.

Revealingly, after the production order became public, the text of the order made it clear that the RCMP knew just how problematic their targeting of a journalist could be for the news organization that employed the reporter. The authors noted that “[i]t is a reasonable inference that [VICE News] would not be able to stage this kind of interview with a purported member of a terrorist group if they had a reputation for immediately handing original evidence to the police.”

Makuch and VICE News have appealed the court’s decision, the outcome of which will be influential in determining the nature of the relationship between media and law enforcement in Canada.  

Ferguson, MO

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The weeks of unrest in Ferguson, Missouri, that were sparked by the killing of unarmed teenager Michael Brown by police officer Darren Wilson in 2014 showcased the threatening new environment faced by journalists in America. On August 13, as demonstrations roiled Ferguson’s streets, Washington Post reporter Wesley Lowery was confronted by heavily-armed police inside a McDonald’s restaurant where he and other journalists were charging their phones and filing stories. According to Lowery, when an officer told him and Huffington Post reporter Ryan Reilly that they had to leave the premises, Lowery began recording video with his phone.

Lowery stood up for his rights when told to stop reporting: “Do I not have the right to record you?” he asked.

After a few moments of conflicting instructions from the police, an officer said: “Okay, let’s take him.” Grabbed by several officers, Lowery said that he tried to allow them to arrest him, saying repeatedly, “I’m not resisting.” An officer disagreed and replied: “You’re resisting. Stop resisting.” Lowery alleges that he was then slammed into a vending machine before being taken to the ground and handcuffed.

After being taken into custody and loaded into a police van, Lowery was informed that he was being arrested for trespassing in the McDonald’s. “I hope you’re happy with yourself,” an officer reportedly said.

“[This story] is going to be on the front page of the Washington Post tomorrow,” said Lowery, to which the officer replied, “Yeah, well you’re going to be in my jail cell tonight.”

Lowery, Reilly, and CTV News Los Angeles Bureau Chief Tom Walters were charged almost a full year after being arrested while covering the protests in Ferguson.

This is what intimidation of journalists looks like, sounds like and feels like. It is what police acting with total impunity looks like, sounds like and feels like. It is the use of physical force and legal repercussions by the state to suppress the same rights it claims to uphold, namely free speech and press freedom.

Ferguson is just one example of the trampling of journalistic freedom that is underway in the United States. Journalists have been arrested while covering protests during the Occupy and Black Lives Matter movements, and some have even been prevented from entering the United States based on their country of birth.

Despite the currently deplorable state of affairs for journalists in the United States, things may be about to get even worse. Depending on the outcome of the 2016 Presidential election, Americans may find themselves living in a country led by one of the most outspoken opponents of a free press ever to pursue public office: Donald Trump.

Donald Trump and the Media

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CC BY | Gage Skidmore

Ever since the Watergate scandal, politicians of all stripes have rightfully feared and respected the power of the free press. The realization that dogged, determined reporting by two journalists could bring down a sitting U.S. President and lead to criminal charges against top political figures rattled even the most cavalier public officials. It also reminded those in power that they hold their positions solely at the discretion of the public, who can rescind their privileges at will, and reminded the nation that no one—not even a lawmaker—is above the law.

Since 2001, however, officials and institutions inside government have been attacking the freedom of the press with increasing regularity. Beginning with the general disdain for the media demonstrated by the George W. Bush White House through to the merciless persecution of whistleblowers by President Barack Obama, public officials in America are adopting a new hard-line approach to those who pursue hard news. This includes state and municipal politicians, who are increasingly at ease taking on journalists, satirists and other members of the media.

The trend of politicians antagonizing the media seems to be reaching a shocking apotheosis with the rise of Republican Presidential nominee Donald Trump.

In the course of a year, Trump has “revoked” the press credentials of the Washington Post and one of its reporters banned from a Trump-Pence rally even as a private citizen, calling the newspaper “phony and dishonest;” he has said that he wants to “open up” libel laws to make it easier to sue media outlets; and he openly heckles reporters who ask him questions. He has mocked a disabled reporter without a second thought. Referring to the media, he has declared that “a good percentage is really a terrible group of people.” He has launched personal, public attacks against dozens of journalists and commentators, as well as organizations including CNN, the Wall Street Journal, Univision, the Huffington Post, Telemundo and many others. The incendiary language and atmosphere of the Trump campaign is contagious: at a rally in Virginia, a Secret Service agent violently assaulted a Time magazine photographer who dared to set foot outside of the designated “press pen.”

The fact that Donald Trump is running for public office—ostensibly to become the most powerful diplomat in the world—and is enjoying success while acting in such a way speaks to just how much has changed for journalists in recent years. Indeed, it shows a Presidential nominee systematizing a culture of impunity against the American press.

But while the tension for journalists may be rising at an unprecedented rate in Canada and the United States, it would be irresponsible to omit just how much more dangerous it is to be a reporter in other parts of the world. In South America, Africa, Europe and Mexico, journalists and free thinkers risk their lives on a daily basis and attacks, murders and disappearances are not at all rare.

This doesn’t mean that our struggles in North America are any less important than in other nations, however. The United States and Canada have historically represented the ideal environment for journalism to thrive: countries where strong legal protections for individual voices and a shared culture of radical transparency are used to push our societies forward, not regress into fear and censorship.

It is the job of journalists to protect these shared rights and freedoms, especially when they are threatened by authoritarianism and impunity. 

George Orwell said that “[i]n a time of universal deceit, telling the truth is a revolutionary act.” Ultimately, this is the role of the journalist in trying times: to tell the truth, even as the institutions that once supported their work turn against them.

Orwell also said that “[j]ournalism is printing what someone else does not want printed; everything else is public relations.”

Both are fitting maxims for times like these—times that courageous storytellers embrace with vigour and solemnity.

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Nathan Munn is an editor and content marketing specialist with Mediagrif Interactive Technologies. He lives in Montreal, Quebec.

 

 

 

 

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