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shared information under its national laws “ a direct reversal of the

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presumption of openness “ and also agreed that disputes over dis-
closure would never “be referred to any third party or tribunal for
resolution.”21
These general agreements on the sharing of defense information
may also be accompanied by bilateral agreements on information
sharing that are tied to speci¬c projects. Since 2001, the Bush admin-
istration has undertaken negotiations with at least three countries22
on agreements to protect information relating to the development of
its controversial ballistic missile defense program. The information-
sharing agreement with the United Kingdom was ¬nalized in 2003;
however, the British government refused requests made by opposition
legislators under its own open government code to make the docu-
ment public. A leaked copy of the agreement showed that British
of¬cials had committed to taking “all lawful steps” to avoid disclo-
sure of classi¬ed and unclassi¬ed information, and promised to give
immediate notice to U.S. authorities if it became probable that the
British government would be compelled to disclose the information “
presumably so that American of¬cials could ask for the return of the
disputed information before it was released.23
The restructuring of American defense relationships in the post-
Cold War years has also had other consequences in Europe. The
European Union™s decision to begin cooperation among its mem-
ber states on defense matters “ a step often justi¬ed as a way of
counterbalancing U.S. dominance after the fall of the Soviet Union “
resulted in the adoption of similarly restrictive information-sharing
rules. In July 2000, the Council of the European Union executed
what critics called a “summertime coup” against transparency by
adding severe limits to its own right-to-information code. It was
not publicly known until later that the Council had signed a SOIA
with NATO on the same day; the Council™s revisions were intended
to provide assurances to NATO that shared information would be
protected from disclosure. (Similar restrictions were included in
an overhauled right-to-information policy adopted by the European
Union the following year.) In 2001, the European Union adopted
new rules to govern the sharing of sensitive information among
its own member states that barred any government from mak-
ing an independent decision about the disclosure of shared infor-
mation. The EU also considered requiring its member states to


134
Opaque Networks


establish criminal penalties for the unauthorized disclosure of shared
information.24


International intelligence networks
Relationships among national intelligence agencies have also become
more complex in the post-Cold War era. Canadian intelligence agen-
cies, as relatively small players in the global intelligence commu-
nity, have been particularly sensitive to changes in the structure
of that community and the constraints those changes appear to
impose. Canadian intelligence professionals have spoken about the
emergence of a “New Intelligence Order” characterized by a deeper
¬‚ow of information among a much larger network of national
agencies.
In a con¬dential internal memo written in May 2001, senior Cana-
dian of¬cials explained that:

The end of the Cold War heralded changes in intelligence activities
and targeting. This had concurrent effects on intelligence relation-
ships. . . . One impact has been the development of more bilateral
relationships, and arguably, a more complex set of sensitivities
regarding the protection of information provided in con¬dence.25

In February 2004, the former head of Canada™s Security and Intel-
ligence Service explained the new realities in more concrete terms.
Giving evidence before a public inquiry into the conduct of the intel-
ligence community, Canada™s former intelligence chief explained that
the Service now had about 250 information-sharing arrangements
with foreign intelligence services “ compared to only ¬fty in the late
1980s. An exact accounting of the change is complicated by the infor-
mality of some arrangements and the practice of keeping the details of
all arrangements con¬dential.26 (American of¬cials have also refused
to release details about the full extent of their agreements with other
intelligence services.)
This trend was in place well before the terror attacks of September
2001. In the eyes of Canadian intelligence staff, it also created a grow-
ing tension with Canada™s own transparency laws. Under Canada™s
Access to Information Act, there is no obligation to disclose informa-
tion received in con¬dence from other governments. However, of¬-
cials are expected to ask other governments whether they will consent


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to disclosure, and also to release parts of documents that are not cov-
ered by the promise of con¬dentiality.27 Canadian of¬cials argued that
it was becoming increasingly dif¬cult to honor these obligations, for
several reasons: There was more shared information; it was harder
to disentangle the sources of information that had been combined in
some analyses; and many of Canada™s new partners did not share its
own “open government values.”28
Even before September 2001, Canadian intelligence staff had
concrete ideas on how to deal with these concerns. Internal docu-
ments from April 2001 suggested that the public™s right to informa-
tion should be loosened by eliminating the government™s obligation
to release domestic information that had been mixed in documents
with foreign government information, or to consult with other gov-
ernments if the act of consultation would itself “affect the relationship
of trust.”29
Months later, intelligence of¬cials had an opportunity to address
these concerns. The Anti-Terrorism Act adopted by the Canadian gov-
ernment in the wake of the September 11th attacks included a pow-
erful new restriction on the right to information. Under the new law,
Canada™s Attorney General is permitted to issue certi¬cates that con-
clusively bar the disclosure of information obtained from other gov-
ernments in the name of national security. The nation™s independent
Information Commissioner is prevented from investigating cases in
which certi¬cates are issued.30 “One gathers intelligence, one shares
intelligence,” the Justice Minister told Canada™s Parliament in 2001.
“Unless we can guarantee to our allies that this type of limited, excep-
tionally sensitive information will not be subject to public disclosure,
we will not get that information.”31
Two years later, Canada™s Arar Inquiry provided a harsh illustra-
tion of the “New Intelligence Order” at work. Maher Arar was born
in Syria but immigrated with his family to Canada as a teenager. He
acquired Canadian citizenship and worked as a technology consul-
tant in Ottawa. In September 2002, Arar vacationed with his family
in Tunisia, and took a return ¬‚ight to Canada that required a change
of planes at New York™s Kennedy Airport. When he landed at Kennedy
Airport, Arar was detained by American authorities, held for ten days,
and deported “ not to Canada, but to Syria, where he was imprisoned
for ten months and tortured by Syrian military intelligence. American


136
Opaque Networks


authorities defended their decision by alleging that Arar was a mem-
ber of al Qaeda; Arar said that he had been targeted because of an
innocent connection to other Syrian-Canadians who had aroused the
suspicion of security agencies. Growing popular protests in Canada
led to Arar™s release in October 2003, and to the set-up of a special
inquiry into the role of Canadian security of¬cials in Arar™s deporta-
tion and imprisonment.
The inquiry hinged largely on information-sharing practices
among intelligence and security agencies. Canadian of¬cials con-
ceded that after the September 2001 attacks they had worked to
assure “open information sharing” and “a climate of trust and
cooperation” with security organizations in other countries.32 They
boasted in particular about the “seamless exchange” of information
with U.S. security agencies.33 Leaks to Canadian media also made
clear that Canadian of¬cials had exchanged information with Syrian
intelligence.34 Arar™s lawyers wanted to know whether information
sharing had made Canadian security agencies complicitous in his
mistreatment: Did information received from other security services
lead Canadian of¬cials to make Arar a target of investigation? What
information did Canadian authorities provide to U.S. of¬cials prior
to their decision to detain and deport Arar? Did information received
later from other services predispose Canadian of¬cials against help-
ing Arar once he was in American and Syrian custody?
The inquiry, still underway in 2005, was hobbled by the reluctance
of Canadian security agencies to reveal details of their information-
sharing practices. Security of¬cials insisted that any disclosure of
information received from other security forces would lead to a dam-
aging “loss of credibility.”35 “Con¬dentiality is a fundamental and
necessary characteristic of sharing information,” Canada™s Attorney
General told the inquiry. “Any perceptions of a relative weaken-
ing in Canada™s ability to ensure protection of information” threat-
ened to undermine critical security partnerships.36 Looming over
the investigation was the possibility that the Canadian government
might invoke the new powers to withhold information contained in
the Anti-Terrorism Act of 2001. The judge running the investigation
complained that these new powers “do not appear to sit well with
the whole idea of a public inquiry.”37 In December 2004, govern-
ment of¬cials refused to allow the publication of evidence that the


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commission said “could not conceivably relate to national security
con¬dentiality”; a few months later, a commission advisor warned
that the commission™s report “may never see the light of day because
of continued national security claims.”38 (A parallel effort by Mahar™s
lawyers to obtain documents from the American government was
also stymied in 2005 when the U.S. Attorney General invoked its
“state secrets privilege” to “protect the intelligence, foreign policy and
national security interests of the United States.”39 )

Law enforcement
Collaboration is also deepening among national law enforcement
agencies. One of the key markers of this trend is the proliferation
of multilateral legal assistance treaties (MLATs) that de¬ne the terms
on which law enforcement agencies will work with one another. The
United States signed its ¬rst major MLAT with Switzerland in 1973;
by 2002, the number of bilateral agreements to which it was party
had increased to forty-eight. In 2003, the United States added new
MLATs with the European Union, covering all of its member states,
and also with Japan, India, Russia, and three other countries.40
(The European Union has also developed its own understandings on
cooperation among EU member states, recently codi¬ed in the 2000
Convention on Mutual Assistance in Criminal Matters.)
The growth in the number of MLATs is the product of a sustained
effort to improve governments™ ability to ¬ght transnational crime “
an effort that again predated the collapse of the Cold War but gained
new momentum afterward. In 1988, forty-three countries signed a
new United Nations convention that committed them to closer coop-
eration in ¬ghting drug traf¬cking and encouraged governments to
negotiate bilateral MLATs.41 In 1989, the G-7 countries set up a spe-
cial task force on money-laundering that also encouraged the nego-
tiation of new agreements.42 (The task force also publishes a list of
“non-cooperative” states.) In 2000, U.S. Attorney General Janet Reno
said that the Clinton administration was attempting to build up an
“effective matrix” of MLATs to combat transnational criminal rings
engaged in software and music piracy.43 After 2001, the Bush admin-
istration identi¬ed terrorism as its foremost reason for negotiating
more MLATs.44
The sharing of information between law enforcement agencies
creates special challenges, because shared information might have

138
Opaque Networks


to be publicly disclosed as part of a criminal prosecution. Neverthe-
less, MLATs are often drafted to minimize the probability that shared
information will be revealed. An agency that is asked to provide infor-
mation needed by investigators in another country can request that
the records they provide be kept con¬dential. (Those investigators can
also ask for the request itself to be kept con¬dential.) If investigators
anticipate that they may be required to disclose information as part
of a criminal prosecution, they must warn the agency providing the
information. The agency then has the option of refusing to cooperate
if doing so would prejudice the country™s “sovereignty, security, public
order or other essential interests.”45


A new security architecture
Amitai Etzioni has argued that patterns of cooperation among secu-
rity and intelligence agencies born out of the “global war on ter-
rorism” are now so routine and institutionalized that they can be
described as “a new global architecture, . . . a de facto Global Antiter-
rorism Authority, formed, led, managed and largely ¬nanced by the
superpower.”46 Etzioni is probably mistaken to put so much empha-
sis on the in¬‚uence of the “war on terror”; there is good evidence
that the movement toward this new “Authority” began soon after the
collapse of the Soviet Union. But there undoubtedly is a new global
architecture “ a new set of networks among national security and
intelligence agencies “ and this architecture includes a set of rules
on the exchange of information that is intended to ensure that work
within the networks cannot be easily observed by people or orga-
nizations outside the networks. Transparency within the network is
matched by opacity without.
There is also an aspect to this emerging “security architecture”
that is overlooked by Etzioni. This architecture does not consist only
of a thickening web of relationships between the security and intelli-
gence agencies of different countries. There is a domestic component
as well. Within national borders, new networks are being formed that
connect national and subnational security agencies “ and that rely on
equally problematic rules about the handling of shared information.
In the United States, the emergence of these domestic networks
has clearly been spurred by the new concern for homeland security.
Their growth is a product of the widely held view that the terror

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