How Journalists Have Spiked NATO's Secrecy Guns

Essay by Aidan White, IFJ General Secretary

OVER the past three months a fierce battle has been fought within the European Union as military chiefs on both sides of the Atlantic try to stem the movement towards greater open government.
Next year European Union leaders face a deadline set by the Treaty of Amsterdam in 1977 to put in place a procedure and policy to guarantee citizens' rights of access to documents of the European Parliament, the Council of Ministers and the Commission. But the co-decision process to agree a new code strengthening peoples' right to know is in chaos.

There have been allegations of skullduggery, threats of court action are in the air and a range of proposals now before the Parliament reflect a failure to reach any sensible consensus on how to break the culture of secrecy that still rules in Brussels.

The security chiefs of Europe (and NATO) have woken up to the fact that freedom of information is on the European Union agenda and, belatedly, they have plunged into the debate with an uncompromising approach that threatens to halt the march towards open government and may even signal a retreat from an openness policy first agreed seven years ago.

But NATO's attempts to shut the door on the peoples' right to know, while increasingly desperate and comic, are still likely to fail.

The security establishment began their campaign with a "summertime coup" on 14 August, while parliaments and journalists were on holiday, when the Council of Ministers unilaterally amended its own rules of procedure to deny access to certain documents under a new system of classification. For good measure they also excluded access to any category of other documents that might allow someone to deduce the fact a classified document exists.

This approach not only torpedoes the traditions of a number of Member States, it undermines the core principle of freedom of information and makes a mockery of efforts to agree a new procedure, by May 2001, which is meant to "enshrine" the citizen's right of access to documents under Article 255 of the Amsterdam Treaty.

The arrogance of the Council, led by Foreign Policy Chief and former NATO Secretary General Javier Solana, is touched with farce given the response to a request by Statewatch who asked for the papers upon which the decision was taken. They were told that access to a document "could fuel public discussion". Another request for documents, by the European Citizens Advice Service, received a blanket refusal, even though the papers concerned were already in the public domain.

But the reality is that NATO's actions are almost certain to founder following the action taken by journalists in Sweden a few years ago who demonstrated that national law guaranteeing access to documents take precedence over the charmed circle of privileged access to information in Brussels.

The Journalists Union of Sweden in May 1995 challenged the Council of Ministers over access to Council documents relating to Europol activities. At that time the Swedish Union asked for 20 documents from the Council and under Swedish Law asked for the same documents from the Swedish Government.

The Council handed over just two documents, but in Sweden some 18 documents were released in line with the country's long-standing legal commitment to make access the rule of government rather than the exception. The Swedish Union mounted a legal challenge to the Council's and won their case at the Court of First Instance in Luxembourg.

In its judgement on June 17th 1998 the Court set out the important principles:

First that according to the 1993 European Union code, access to documents must be the rule;
Second, any restrictions on access must be narrowly interpreted;
Third, every document should be tried or examined on its own when deciding if it should be released;
Fourth, if a document is refused there should be real harm to the interests concerned.
All of these principles are, under NATO's guiding hand, being challenged by the European Union Council of Ministers.
Meanwhile, in the United States security chiefs have put before the Senate a proposal to enact an "official secrets act" that will make it a criminal offence to leak classified information to the press. Although Congress has struck down such proposals in the past as unconstitutional, the latest effort, like the action by the Council of Ministers, has been taken without any public debate or review of the proposal.

Any security service worthy of the name knows that secrecy rules within the European Union are constantly under threat from ambush at national level. As the Swedish case proves, national legal traditions can subvert Codes drawn up in Brussels. The benchmark for openness in Europe is not what Brussels can enforce, but the limits of transparency as defined by those countries with the highest levels of access to documents.

The Council of Ministers, and NATO, will have to recognise, sooner or later, that there are different traditions at work here and, in line with the Amsterdam Treaty commitments, it only makes sense to harmonise openness rules up to the levels of access that operate at the highest level nationally.

The alternative will be to attack the openness rules that apply in a number of national states - the Netherlands and the Nordic countries, in particular. That may happen, but if it does, journalists, like those in Sweden, or John Carvel at The Guardian or Steve Peers at Statewatch, who have also challenged secrecy in Europe, will be among the first to take to the barricades.

by Aidan White
International Federation of Journalists