“Of course, there’s an important difference in the two situations: the Nazis are no longer with us, whereas today’s practitioners of torture are very much in action, in countries around the world. It is legitimate to be concerned that Canada’s willingness to use the information they produce would, in effect, create a “demand” for torture (though I rather doubt the supply would dry up in our absence) or indeed open the door to the sort of nod-and-wink outsourcing of brutality we have seen before. That would certainly be a concern if it were generally the practice to use such information, but it cannot be ruled out even in the more circumscribed policy the government has adopted.
Still, unless we are prepared to say that, having received word of a plot to, say, blow up a plane over Montreal tomorrow, we would do nothing with it on the off chance that it might have been obtained through torture, I think we have to live with that possibility.”
- Coyne: Walking the moral high wire between terrorism and torture, By Andrew Coyne, Postmedia News February 10, 2012
When dealing with policy there is only one truth: History is your best teacher. For, we can look at policy tools used throughout written history to weigh the validity of a new approach. For example, in Medieval Europe, if one was charged with a crime, one would often face a “Trial by Ordeal”. An ordeal would be faced and each varied. Fire, combat, water and boiling water were just a few of the trials offered and they worked on a simple basis: “Judicium Dei”. In English, this means that if an accused was innocent, God would protect them.
These trials become less common the closer that one gets to the Renaissance. They were abandoned for other trials: “Trial by Judges” and “Trial by Juries”. A part of the reason for that was simple: the King and the bureaucracy often victimized others. For evidence of this truth just look at Chapter 39 of the Magna Carta. It reads as follows: “No free man shall be arrested or imprisoned or disseised or outlawed or exiled or any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.” As far back as 1215, attempts were being to limit the ability of the Crown to use torture as a public policy tool.
More evidence of this is available should it be required. One could read a website called “phoenixandturtle.net”. Or one could read a book. In 1836, David Jardine wrote “On the Use of Torture in Criminal Law in England Previously to the Commonwealth”. Through these sources, I found many examples. In 1580, warrants were sent out for a number of men including Harte, Bosgrave, and Pascal. They were sent to the Tower of London. So was Alexander Briant in 1581. In fact, in his case, instructions were given that would shock us today. If he did not confess, Ms. Briant was to be shown the tools of torture that were to be used on him to “terrorize him with a sight of the means of torture at the Tower”. If he remained obstinate, he was to be put “to torture.”
Or one can read, David Hume. In his book, History of England, Mr. Hume noted the Star Chamber “possessed an unlimited discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offenses, contempts, and disorders, that lay not within reach of the common law.”
However, one does not have to go to distance history. Agnes Macphail – a Canadian MP – fought in the 1920’s to eliminate physical punishment from Canadian jails. For even that was being abused. Our history tells us that governments tend to abuse its ability to inflict physical punishment. So how can a government be expected to use torture in any sort of judicious manner.
For, Torture does two things. Firstly, as Mr. Coyne noted, it allows the torturer to get all sorts of information from the victim. Some of it is real, some of it is fabricated and other bits are likely propaganda or misinformation.
However, the second most important thing about torture is that is reinforces the torturer’s perspective. In 2000, Sasha Abramsky wrote a piece called Trial by Torture. In it she documented a single brutal unit of the Chicago Police Department that allegedly tortured confessions out of dozens of suspects, including 10 who are now on death row. These events supposedly took place over a two decade time frame. Or put differently, torturers can bend the truth to fit their perspectives, opinions and “story”. Therefore, torture can drive one further from the truth and not towards the truth. If one listens to Congressional Investigations various aspects of the War on Terror, this truth is repeated. The techniques of the FBI are often far better than those of the CIA, DIA and other clandestine agencies. The FBI’s techniques were simple: they were banned from using “enhanced” interrogation techniques. They just used tried and true civilian policing practices – just questioning and evidence.
This institutional blindness is not a new phenomenon. Canada is home to a group called the “Association in Defence of the Wrongly Convicted”. The group’s mission is to defend people that the system has found guilty. Or put differently, these Wrongly Convicted people have been accused of a crime by Society as a whole including Police Officers, Crown Attorneys and Judges. Those being accused are innocent. If we take the same logic to torture, it is likely that Torturers will “taint” the evidence that they are trying to find. That is why torture is inadmissible in our modern legal system. This is why we do not use torture.
So, if evidence is derived from torture, it is questionable because it could be tainted – either by the torture’s biases, the victims fabrication’s or attempts at misinformation. Therefore, why would CSIS want to use it? For, it will likely cloud a picture that is already clouded. Consequently, it will likely lead one to the wrong answer.
With this being said, some might argue that Mr. Coyne was not in favour of torturing individuals, he was just in favour of using information already obtained by torture. Or put in other words, as long as CSIS or the RCMP do not torture, we are okay. We would be just using information from other coutnries that do torture inmates, terrorists or suspected terrorists. Fair enough, so let us give everyone a reason for excluding questionable evidence from the process altogether: Canadians Governments or Security Agencies may ask others to do what they cannot do themselves. Take the example of Maher Arar. He is a Canadian who was detained in the US and sent to Syria. While in Syria, he was tortured. We know that his ordeal started because someone in the Canadian Security Apparatus added his name to a “list”. Given that he received a formal apology for his “terrible ordeal” and $10.5 million, one cannot say that the Canadian Government was not responsible for the subsequent events. While, the events in Arar’s case seem to be accidental or unintended in nature, one cannot say that a future government could not be more “aggressive” in the pursuit of the “truth”. Without a definitive legislative framework, the descent down a slippery slope is possible.
Being a multicultural and multiethnic country, many of us travel through countries that do not have the same respect for Human Rights that Canadians do. Imagine if one of us were added to a list. Henk Tepper does not have to imagine it, he is living the experience. He is a Canadian jailed by the Lebanese government at the request of the Algerian Government. Henk has no ancestral links to Algeria or Lebanon. We are not sure if he is committed a crime. The only thing that we know is that a shipment of his arrived in Algeria and might have been contaminated with a bacterium. He has been in jail since February 2011. His story has run in a number of Canadian newspapers. He has not been formally charged and he is waiting for someone to resolve his situation. Imagine if Henk had been arrested in Iraq, Iran, Afghanistan or China and his name had been on a list provided by Canadians. What would happen to this man?
From a Canadian perspective, not much would happen. Reporting for the Toronto Star, Tonda MacCharles wrote the following: “The federal Conservative government cannot be forced to ask the United States to return Omar Khadr to Canada, even though the young Khadr’s Charter rights were violated in Guantanamo Bay, the Supreme Court of Canada declared today.”
Abousfian Abdelrazik also ran into trouble. Mr. Abdelrazik claims that he was tortured in Sudan. Given Human Rights Watches reports (including Sudan: How Human Rights Abuses Caused the Disaster” and “Africa Watch Letters Protest Abuses of Human Rights by All Parties to the Conflict in Southern Sudan”), one could say that Mr. Abdelrazik was likely telling the truth. What is most interesting is that the Canadian government has admitted in court submissions that two CSIS agents interrogated him while he was in Sudanese custody. Furthermore, as Paul Koring noted in his piece,“Abdelrazik deserves no compensation, Ottawa argues”, (Globe and Mail, October 14, 2010), let us not forget that Mr. Abdelrazik was returned to Canada because “ a federal court judge ruled the Harper government had violated his rights and ordered him flown home.”
Taken together those three cases paint a damning picture of what our government has done. The Canadian Government does not have to torture its own citizens. It can have other countries do it. Given that Britain’s MI-6 and the American CIA have rendition programmes, one cannot be said to be safe in Europe. If you don’t believe me, please note the following report from the NY Times:
“In a landmark ruling, an Italian judge on Wednesday convicted a base chief for the Central Intelligence Agency and 22 other Americans, almost all C.I.A. operatives, of kidnapping a Muslim cleric from the streets of Milan in 2003.” (NY Times, RACHEL DONADIO, November 4, 2009, Italy Convicts 23 Americans for C.I.A. Renditions)
So if the British and American Governments do this, why should a future Canadian not follow? Or put differently, if Canadian Security services are allowed to use information derived by torture even in extreme circumstances, what is to stop Canadian Security Services from dropping hints to other agencies?
This is why a strict policy and legislative framework is needed. Our politicians must be on the record as to their feeling about torture.
Much of my passion for comes from my own self-interest. As a travelling Canadian, I have been through the US, Jamaica, Barbados, France, Belgium, the Netherlands, Russia, Finland and the Bahamas. While leaving Russia, I was pulled aside in 1998 for no particular reason. My passport was taken away for what felt like 30 minutes, while my travelling companions looked on. What would have happened to me if I had been on a list? Consequently, this is why I argue that CSIS should not use information which might have been derived from torture. For, wrongly or rightly, I may be the next person who is asked for information in a foreign country where the Canadian Charter of Rights and Freedoms will not protect me. So in memory of Martin Niemöller, I will speak up for the Other, before there is no one left to speak for me.