Torture, apologies and counter terrorism

The announcement that Canada has reached a settlement with three citizens who claim that information shared by CSIS with Syria led to their arrest and torture is big news.  We don’t know, at least not yet, what this compensation amounts to but we do know that the Trudeau government  has apologised for “the role Canadian officials played in their torture in Syria and Egypt.”

There is a lot to take from this case, much that will remain secret, and a lot of ways to view what this means for CSIS and for Canada’s ability to carry out counter terrorism investigations, and not all of it is good.  It should come as a surprise to no one that I have a biased view on this, in light of my years as a CSIS intelligence analyst, but I will try to reflect a variety of perspectives in this short blog.

First and foremost, I believe, and I am confident that my colleagues at CSIS believe, that torture is abhorrent and should not be condoned or supported under any condition.  Period.  No member of CSIS or anyone in Canada for that matter should engage with a state when it is clear that it practices torture.

A much more difficult question is whether a government, or its security agencies, should ‘know’ that another state will use torture and therefore refuse to cooperate with that state.  Many have suggested that Canada should have ‘known’ that Syria was a habitual torturer and human rights abuser and that under no circumstances should we have sent questions to the Syrians to put to incarcerated Canadians.  Perhaps.

So what do we do then with a case like Maher Arar (held by the US and sent to Syria where he was allegedly tortured)?  The O’Connor commission concluded that information shared by the RCMP with the Americans played a role in Mr. Arar’s fate.  Some could argue that we should not share intelligence with the US as a consequence.  We could certainly do that and we would also certainly be much less safe as a country.  This example is not unreasonable.

What is missing in all this is the fundamental fact that CSIS must have had a justified interest in the three men just compensated (that they were never charged is irrelevant).  They were not ‘randomly’ investigated or investigated because they were ‘Muslim’.  CSIS needs reasonable grounds to suspect that a person constitutes a threat to the security of this country (that is verbatim from the CSIS Act) and is hence authorised to “collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence…”  Doing so requires working with other partners, domestic and foreign, and some of the latter may not share all of our traditions and cultures (NB I am NOT okaying the use of torture  by saying this).  As former CSIS Assistant Director Jack Hooper once famously said (I am paraphrasing): sometimes you have to choose the ugly girl at the dance. The world is a nasty place with some nasty people who mean us harm and we have to allow our protectors the room and flexibility to work in that world.

If we tell CSIS that it cannot work with anyone where there is the slightest sniff of mistreatment we put crippling chains on how that agency does what it does.  Yes, CSIS has to consider carefully whom it works with and yes it must opt not to share where there is a strong likelihood that human rights may be compromised, but this is not as simple as those in the peanut gallery say it is.  Life is shades of grey, not black and white.

Paying out compensation and issuing apologies set out dangerous precedents.  The lawyer for Omar Khadr  is clamouring for his client’s turn at the money trough.  And there will be more cases and some people will sue for large amounts of money for frivolous reasons (‘CSIS interviewed me and I got scared’).  We must stop this trend and stop it now.

We also have to stop applying what we know now to what we should have known then.  Hindsight is 20-20 but hindsight is not, by definition, available in the past.  Our security services were under tremendous pressure to act in the immediate post 9/11 period since no one knew if there were more attacks in the offing.  Were mistakes made?  Absolutely and lessons need to be drawn from those mistakes.  But it is wrong to say that people acted maliciously: they were doing their best under unimaginably difficult circumstances.

Lastly, these decisions are undoubtedly having a knock-on effect within CSIS. I would be surprised if everyone who works as an investigator is not now asking him- or herself what is legitimate practice and what is not.  I agree that CSIS employees must be held to a very high standard  in light of the powers we give them and that violations of practice and policy must be addressed.  But we cannot handcuff our protectors by questioning – and threatening to sue – every time they share with an ally or partner or conduct an interview.  There is room for oversight and there are bodies that conduct oversight functions.  This is overly unnecessary oversight and it will come back to bite us in the end.

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.

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