Tuesday, April 05, 2005

Captain's Quarters, the Adscam Scandel and the Canadian Publication Ban

Captain Ed over at Captain's Quarters has this piece on the Canadian Adscam Scandel and the Publication Ban. This is a background story on Captain Ed, his blog, Captain's Quarters, and why he views the Publication Ban such a farce:

G&M Shows Why Publication Ban Is A Farce

"Jane Taber reports in this morning's edition of the Globe and Mail on a second interview I gave her yesterday, when I had a moment and my voice could handle it. It's meant to give Canadian readers some background on me personally, and Taber does a fine job of presenting that information. However, more importantly -- perhaps for American readers -- it explains one of the reasons I found the publication ban so ridiculous.

One of my commenters last night asked why Americans should be so offended by a publication ban, considering that grand jury testimony is often kept secret here. However, grand jury testimony is truly held in camera, meaning closed off to the public. As Taber reports, that's hardly the case with the Gomery Inquiry:

His contact could be anyone as the commission hearings are open to the public. Indeed, the Brault testimony is an open secret in political Ottawa. Ask any political staffer or MP and they seem to know some, if not all, of the details of the testimony. The television feed from the commission can be picked up in some Ottawa newsrooms, and other information is being passed through e-mails, transcripts and phone calls.

Political leaders are being kept abreast of the story, with the exception of Bloc Québécois Leader Gilles Duceppe who asked his staff not to tell him anything for fear he will divulge information and run afoul of the ban.

Last week, the NDP dispatched their man, Pierre Ducasse, to the hearings when the publication ban was imposed. He reports the testimony back to the senior staff. Party leader Jack Layton, however, is briefed only on the "gist" of the information, his spokesman, Karl Bélanger, says. Again, it is to ensure that he doesn't let details slip.

In other words, every politician has access to the testimony, and even most reporters can get the transcript or at least hear it as the witnesses reveal their secrets. The only people whom the publication ban affects are the Canadian voters who elected these people and whose money got siphoned off. It has no analogy to grand juries whatsoever.

Others have pointed out that Justice Gomery wanted to keep the information private to keep the testimony from souring a jury pool for Jean Brault, Chuck Guité, and Paul Coffin. This sells Canadian citizens short, ethically and intellectually, and unfortunately this attitude exists in courtrooms south of the border as well. Jury selection these days apparently means finding twelve people who never read newspapers, books, or watch the news on television, and then putting someone's life into their hands. It's rubbish. Jurors take the job seriously enough that they can determine the validity of the evidence presented in court -- as opposed to the often-inaccurate information presented in the media -- and render a decision based on meeting a threshold based on reasonable doubt. When lawyers empanel the twelve most ignorant people they can find, we wind up with juries like the OJ Simpson jury: people who get manipulated by lawyers with sing-song slogans ... which is probably exactly what the lawyers on both sides wanted in the first place.

In order for a citizenry to remain at liberty, they have to know what their government is doing, and the press needs to report it without fear of government reprisal. The notion that Brault's rights had to be protected over the rights of all Canadian citizens is not only ludicrous but a false choice at its heart."

The Globe and Mail piece on Captain Ed is here.

And would have the government (Liberal Party) called an election before release of this information?

Can or will the press be intimidated, coerced and influenced in the world of the blog and internet?

Update #1

A Round-up of yesterday's commentary on the ban can be found over at Michelle Malkin's Blog:

More from Colby Cosh on the blogger-related consequences of Canada's publication ban on Jean Brault's testimony published by Captain Ed:

Any action taken against a webmaster who posted the content of Brault's testimony, or linked to it, or linked to a page that linked to it, would presumably be subject to a later judicial review with an unforeseeable outcome. I believe that this entry complies with the ban--but does it? On Saturday Instapundit linked to "Captain" Ed Morrissey's posting (which is the top hit returned by a Google search for "brault liberal") about the Brault testimony. Is it legal for me to tell you that if I don't link to Morrissey's site itself?

What about my three-year-old link to Instapundit.com--am I now obliged by the ban to remove it from my sidebar? If so, for how long? Must I monitor every site on the sidebar for content whose publication by me would constitute contempt of court? I don't believe any legally solid answer is available to these questions; the nature of a hyperlink as a "publication" just hasn't been nailed down.

Cosh has a request for bloggers outside Canada:

With due respect to the ban, which I consider myself to have observed herein, it would actively help free the hands of Canadian webloggers and reporters if our foreign cousins were to be aggressive about "publishing" the substance of the Brault testimony outside the reach of Canadian law.

More legal analysis at Mader Blog on whether and how the ban will affect the Canadian site, NealeNews, which first linked to Captain's Ed post.

More Canadian blogger commentary: Mike Brock, Norman's Spectator

Slashdot is covering the story, with some commenters defending the ban.

The Politicker and The Interocitor discuss the potential of blogs to bring down the Canadian government. Says Kevin Murphy at The Interocitor:

When the dam breaks, and it will, the Canadian Government may fall as completely as the Mulroney Conservatives did. Maybe worse, if the Quebec nationalists have their way -- Canada without Quebec would be a far different place.

The pen is mightier than the sword.

Ditto that.

Angry in the Great White North steps up and defies the ban.

Meanwhile, Captain Ed's original post reporting Brault's testimony is currently (as of 601pm EST) the top politics link on Technorati and the second-ranked link on BlogsNow (behind a quite related story on San Francisco's attempt to regulate blogging).

More coming from Ed tonight, he says. Stay tuned.

Update III: Just a quick thought. Remember when Jeff Jarvis noted during the Eason Jordan debacle that the "off the record" gate has fallen? Looks like the blogosphere might be threatening Canada's publication ban in the very same way.

Trenchant as always, Wretchard at The Belmont Club weighs in:

Like the Rathergate and Swiftvets story, the scene seems set for an invisible and unacknowledged meme to exert a powerful influence on mainstream news. One poster at Free Dominion said Canada was about to experience the power of the American blogosphere.

The idea of an 'American blogosphere' is a curious concept. One Canadian poster, who balked at relating what he knew about the Liberal Party scandal on the Free Dominion because of the publication ban, suggested he and his buddies continue their conversation at the FreeRepublic, like they were crossing the border and going from Windsor to Detroit. Whether that made it all nice and legal I'll leave to the lawyers but a certain amount of absurdity suggested itself in the situation.

This highlights the impact that Internet self-publishing has had in breaking down political systems, whether peaceably (as in the case of Canada and the US) or not-so-peaceably as exemplified by Iran. Because the exercise of authority consists largely of information control (rather than physical control) by the State, Internet self-publishing has effectively weakened large areas of state power by weakening those controls. As a practical matter, there is not a judge in the world that can realistically enforce a gag order unless he can a) prevent the source leak or b) force compliance on all continents and seas of the planet earth.

Update IV
: Captain Ed's latest report on Brault's testimony is up.

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