There are few people, I imagine, that condone the use of torture. Well, except those countries or governments who engage in it I suppose. The list of those actors is one that most would find obvious: Syria, Iraq, Afghanistan. And yet Amnesty International finds that torture is practiced in 141 nations, i.e three quarters of the world’s states. In other words, there are many more countries that use torture than don’t. That is a chilling figure.
Canada and Canadians take torture seriously and regularly speak out against it. This nation does not engage in barbaric practices and even compensates citizens abused by other states. This latter practice is tied to intelligence gathering, what I want to focus on here, so it needs a bit more analysis.
To date the Canadian government has paid out over $50 million to five individuals tortured (allegedly) at the hands of the Syrian, Egyptian and US governments (more on the US later). After lengthy commissions of inquiry it was determined that Canadian agencies, namely the RCMP and CSIS, did not do enough to prevent citizens from enduring ill treatment or refrain from sending questions to those individuals’ captors with a view to getting intelligence linked to terrorism investigations. Many Canadians applaud these findings (and many do not) and we have probably now established enough legal precedent to govern future cases (and, trust me, there will be many,many more to come).
Now Public Safety Minister Ralph Goodale has issued directives to the Canadian military, CSE (the electronic eavesdropping agency) and Global Affairs Canada to refrain from ‘using or passing along information that may have been obtained by torture”. There is an apparent exception: when it is “absolutely necessary to prevent loss of life or significant personal injury” and that the person involved is “someone is about to commit a terrorist act.” These new marching orders are similar to those given to the RCMP and CSIS back in September.
Three cheers for the Canadian government! How can anyone find anything to object to in this decision? Well, there are several problems with these moves and each will complicate how we gather and use intelligence.
a) who decides what a ‘loss of life or significant personal injury is’? Is there a standard out there?
b) who decides what constitutes torture? Is there a standard out there?
c) who decides which countries are ‘known’ to use torture? Do we use the Amnesty International list? Recall that Omar Khadr received $10.5 million for treatment he received in Guantanamo Bay at the hands of the US, which just happens to be our most important intelligence partner. So, we should not share with the US then, right?
While we can all agree that torture is abhorrent and that no government agency should knowingly participate in, stand by, or ignore ongoing torture it is not clear how those agencies are to act moving forward. Do we expect them to predict when and where torture is used? Sure, dealing with Syria is off the table for the indefinite future, but beyond that? What impact will these rules have on both the ability of our spy and police agencies to collect information and to determine threat level? Besides, is it not already illegal to engage in torture? Do we need new rules or are these a knee-jerk reaction to the recent – flawed – multi-million dollar settlements? I suspect that the latter is playing a big role here.
I have no intention of belittling the cruelty of torture and I reject it without qualification. To my mind, though, there is a lot of uncertainty what constitutes torture and forcing our security intelligence and law enforcement agencies to make that determination is unfair. We will have to watch and see what this means for our safety.