What new Canadian torture directives will mean for intelligence gathering and sharing

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.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

5 replies on “What new Canadian torture directives will mean for intelligence gathering and sharing”

“I have no intention of belittling the cruelty of torture and I reject it without qualification.”

No, you don’t. That entire blog post was an extended qualification. What you’re arguing for here is for Canada to use evidence obtained by torture… as long as it’s torture obscured by the legal obfuscations that, for example, the United States has used through the last 15 years. (Case in point, methods of interrogation described as torture by the US State Department when used by other countries, but as ‘enhanced interrogation’ when used by American intelligence agencies.) Now that Trump’s in office, I’m sure that the torturers have crawled back out from under their rocks, and that Canada will be confronted with this issue again.

I am not certain you actually read the blog. What I tried, apparently unsuccessfully, to say was that determining what is and what is not torture is not easy and these guidelines will make intelligence sharing hard. Where are the ‘legal obfuscations’ you mention? I stand by my belief that the payment to Cdns is wrong because at no point did Canada torture, ask Cdns to be tortured or encourage other states to torture Cdns. I have no respect for the Trump adm either but do not ascribe words or ideas to me that I did not write.

As I said, legal obfuscations including the use of methods of interrogation described as torture by the US State Department when used by other countries, but as ‘enhanced interrogation’ when used by American intelligence agencies. Waterboarding and sleep deprivation come to mind: these were specifically described as torture in State Department Human Rights Reports at the same time as they were being justified in John Yoo’s torture memos. At a minimum, I’d say that if one branch of government uses a definition of torture that encompasses particular techniques, we might expect that that definition would be applicable to other branches of the same government.

The reason I object so strongly to your claim that this is all very complicated is because such claims have routinely been used to open up the spaces in which torture has in fact been used by Western countries. Such claims have also allowed non-torturing countries to turn a blind eye to such techniques, because after all, we need US intelligence information and might have to forego such information if it was obtained through torture – and so that can’t be torture, right?

As for Omar Khadr, I suggest that you take your claim up with the Supreme Court – because they disagree with what you say about the actions of the Canadian government of the time. That was the basis of the civil suit and its conclusion.

Regardless of your certainty it is complicated. I cannot speak for what the US gvt does or does not do as I am not an American and have never worked for US intelligence. As for Omar Khadr, the Supreme Court erred in its judgment – that too happens unless you are of the opinion that judges and juries are perfect

If you want to consume US intelligence output and have any concern about torture, you had better develop some background on what the US government does or does not do.

And sorry, but sweeping claims like ‘the Supreme Court erred in its judgement’ are a dime a dozen. There was a reason for that payout by the Canadian government, and that involved those nine somewhat experienced jurists in Ottawa who disagreed with your position on this.

Leave a Reply