our torture memos
The Canadian Civil Liberties Association reminds us:
“Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror.”
Kofi Annan, then Secretary General, United Nations, December 10, 2005
The prohibition against torture in Canadian and international law is absolute. It is considered a peremptory norm of international law from which there can be no derogation, even in times of emergency. The absolute prohibition against torture is found in Canada’s constitutional obligations, in the International Covenant on Civil and Political Rights, in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in international humanitarian law including the 1949 Geneva Conventions and the 1977 Additional Protocols, and the Rome Statute of the International Criminal Court.
A component of the absolute prohibition against torture is the principle of non-refoulement. This principle prohibits the return, transfer, extradition or deportation of an individual to a State where that individual faces the risk of torture, cruel, inhuman or degrading treatment. The principle of non-refoulement is a legal obligation binding upon Canada in our domestic law and in international refugee law, in international human rights law, and in international humanitarian law.
In February 2012 Canadian Press Access to Information requests brought to light a letter written earlier – just a month after Omar Khadr’s Guantanamo plea bargain. On December 7, 2010, Public Service Minister Vic Toews wrote to Canadian Security Intelligence Service director Richard Fadden advising him of a new policy:
[under] exceptional circumstances where there exists a threat to human life or public safety, urgent operational imperatives may require CSIS to discharge its responsibility to share the most complete information available . . . with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment.[i]
Ignoring the long-established view that torture yields unreliable confessions, the letter assures CSIS they are not obliged to release information about whether or not the information had been obtained through third-party torture.
This contradicts Canada’s formal commitment since 1984 to the UN Convention Against Torture which states: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
On February 11, 2012, a few days after the release of his torture letter, Vic Toews clarified his position in a letter to The Globe and Mail,[ii] Toews first affirms that Canadian policy condemns torture: “Canada does not condone torture. We most certainly do not engage in it. This is a fundamentally abhorrent practice, diametrically opposed to Canada’s reputation as a protector of human rights.” He then contradicts himself by assuring readers “we” should be unencumbered by second thoughts in guaranteeing a citizen’s absolute security: “What we also do not condone is dithering in the face of threats to the lives of Canadians.” Toew’s is an unflinching omnipotent Rambo-style Canada. Only the “ditherer” – a derisive term used to dismiss former Liberal Prime Minister Paul Martin defeated by Stephen Harper in the 2006 election – stumbles on the niceties of laws or human rights when confronted with evidence obtained by torture that might guarantee the illusion of total control.
Toews appeals to us – if only we would grasp his point – “Let’s be clear as to what we are talking about. This sort of intelligence would not be used in court and it would not be held against the individual by Canadian authorities.” But this is misleading: evidence gathered through third-party torture by the US military was used in the Guantanamo military trials that condemned Omar Khadr, and this “mark of torture” continues to shape the government’s response to Khadr, just as it did in the case of Maher Arar, Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin, all tortured by the Syrian government.[iii]
The government position was formalized in another document released a few weeks later: the four-page directive written by Vic Toews on July 11, 2011 to CSIS director Fadden, reaffirms and elaborates on Canada’s commitment to third-party torture. Toews advises that CSIS should release information to foreign governments even when torture is a “substantial risk.” [iv]
In mid-March 2012 as this book goes to press, Omar Khadr awaits his transfer to Canada from Guantanamo. It is up to Canadian Public Safety Minister to consider the application for Omar Khadr’s transfer. A spokesman for Vic Toews assures us, “When an application for transfer is received, the minister considers the fact of each case and bases his decision solely on those facts.” If we sanction evidence obtained through third-party torture in ticking time bomb scenarios, forgive me for my skepticism of what constitutes “facts.”
We are assured by Vic Toews that evidence obtained through torture will only “be used in an operational context in order to protect Canadian life and property.” The cost of this operation that grants us the illusion of absolute security is high: cruel and inhuman treatment is borne on the bodies of our fellow citizens and all of us are deformed like the tortured.[v]
[i] Bradley Bouzane, “CSIS may use information from torture in ‘exceptional’ cases: Vic Toews,” Postmedia News , 7 February, 2012, http://news.nationalpost.com/2012/02/07/csis-torture-exceptional-cases/ .
[ii] “Torture, rights,” Letter to the Editor, The Globe & Mail, 11 February, 2011, http://www.theglobeandmail.com/news/opinions/letters-to-the-editor/feb-11-letters-to-the-editor/article2334646/ .
[iii] And we know that Canadian officials provided questions to the Syrian government in the case of Canadian Citizen Abdullah Amalki who was also tortured and imprisoned for more than a year Syria after 9/11. In his inquiry, former Supreme Court judge Frank Iacobucci found that Canadian officials shared information with foreign intelligence and police that led to the torture of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin in Syria after Sept. 11. In outlining his racist treatment by the RCMP, Almalki succinctly defines its effects: “Racism blinds people, impairs their judgment, shrinks their cognitive abilities, and diminishes moral values. Racism stinks and stings.”quoted in Matthew Behrens, “Taking liberties: Three years after finding Canadian complicity in torture, silence lingers in Ottawa,” rabble.ca, 21 November, 2011 http://rabble.ca/columnists/2011/11/taking-liberties-three-years-after-finding-canadian-complicity-torture-silence-li .
[iv] Canadian Press, “CSIS OK’d to share data despite torture risk,” CBC News, 2 March, 2012 http://www.cbc.ca/news/canada/story/2012/03/02/csis-torture-information-directive.html .
[v] “to become cruel and inhumane…is a price too high to pay for such an illusion” of security writes Ronald L. Grimes in his “Introduction” to Ronald L. Grimes, Ute Hüsken, Udo Simon, Eric Venbrux, eds. Ritual, Media, and Conflict , New York: Oxford UP, 2011: 28. Included in this volume is an essay “What’s at Stake in Torture,” by Werner Binder, Thomas Driver, and Barry Stephenson. They write: “In torture, the power of the torturer in relation to the tortured approaches the absolute. Whether all power corrupts, as Edmund Burke famously said, we hold that the power at play in torture is malignant on multiple levels. Rooted in our capacity for cruelty, in the perverse pleasure that often accompanies the ability to arouse fear in the other, in the desire for political hegemony—torture is a reprehensible, unjustifiable act that deforms the individuals who enact as well as suffer it, and also the societies that ignore or allow it to take place.” http://barrystephenson.ca/?p=182