Torture and Public Policy

Torture is not a country specific phenomenon. It is far too comfortable to say that Syria, or China or Saudi Arabia or Cuba or Bulgaria can be labeled as states that use torture routinely as part of their national policies. As recent history has demonstrated, the fellow travelers on the torture road are numerous and are found in the best of company.

Today, of course, we are far wiser than we were years ago when, torture, like a deranged relative was relegated to the attic and not discussed in polite company.The attacks of 911 is often used as the seminal date for the resort to torture by the government of the United States on the argument of necessity and use it to justify our collective slide into hysteria and madness. Large enemies, and particularly, successful ones, have always occasioned the lowering of standards by democratic governments and societies. Equally in the fact of large enemies there is the assertion of the belief that citizens of democracies must forgo some of their basic rights in order to ensure collective security. There have been no shortage of leaders who when faced with enemies they little understand see the diminution of their own citizens rights and freedoms as an answer. Unfortunately, again as we have seen, that approach finds considerable support among the affected people.

In this I would argue, that torture in all of its manifestations in places like Canada is not a policy in and of itself. Rather it is a consequence of other policies and decisions when combined leads to a lowering of our morality, and our political and human rights standards. It reflects a willingness to use means to achieve a political objective irrespective of whether or not the means are either appropriate or workable. But most importantly, torture in any of its manifestations corrodes the very basic premises of our societies. In our efforts to stamp out torture in our modern world, all too often we concentrate on those who carry out the acts themselves in the shadows as the former vice president was often quoted as saying. All too often we ignore the political leadership that is behind its use and who give it political legitimacy.

In the United States, in the aftermath of the September 11, 2001 attacks, the American executive arm of government with the cooperation of the Congress and for a period, the courts, created, sanctioned, and permitted the use of torture with the elusive objective of obtaining information to prevent future attacks. Equally it was a demonstration by a government that nothing was sacrosanct in its “war on terrorism.”

Everyone in this room will have seen the photographs from the kindergarten class in Florida on the morning of September 11, 2001 where President Bush was meeting with children. The entry of an aide and the whispering into the ear of the President of information on the attacks provides a historical image that will live on forever. The television camera is unrelenting in reporting the bewilderment on the face of the President, and for many of us who saw those pictures there was a small gasp of understanding that the American world had dramatically changed. And as commentators constantly remind us, when the world of the United States dramatically changes we are all affected by every twitch and sense of outrage.

We are only now beginning to understand how significant those changes were. Central to those changes was the willingness of the United States government to remove torture from the shadows and place it at the centre of American policy. The creation of Guantanamo; the construction of its equivalent at Bagram air force base, north of Kabul; the use of “black prison sites” in Poland, Romania, Lithuania and Bulgaria and in other countries still to be identified; the kidnappings on the streets of foreign cities by the CIA; and the off loading through renditions, extraordinary and otherwise, of interrogations to Jordan, Egypt, Morocco, Syria and Saudi Arabia; were all manifestations in the use of torture. And this by a country that throughout the last two hundred years provided the world with a unwavering beacon of liberty, freedom and the primacy of the rule of law. It was no longer the “city upon the hill” but rather the purveyor of political darkness that is still with us. It should be stressed that sadly there were no shortage of allies for the United States in these nefarious activities.

Canada was not immune to these forces. We were never a place where political and human rights trumped our collective needs. Peace, order and good government remains a mainstay of our daily lives in spite of the Charter of Rights and Freedom and various other initiatives to give the citizen some measure of protection against the overweening powers of the state. The recent decision by the Supreme Court on Omar Khadr provides sad evidence of how little progress has been made in Canada. Then the Supreme Court bowed to the archaic and illiberal authority of crown prerogative for foreign affairs rather than to redress a Section VII Charter violation of Mr Khadr’s rights. If ever a Canadian court, and especially the Supreme Court, bowed to the will of the executive, this was it. And surprisingly, there was little if any, moral or legal outrage. The sins of the father when visited on their sons finds modern acceptance within our Supreme Court and the country at large.

Equally outrageous is the continued use of preventative detention by the Canadian government and its sanction by the courts. It is a modern reflection of our willingness to intern Ukrainian Canadians during the First World War and Japanese Canadians during the Second. Today, even more pernicious if that is possible, the victims of our preventative detention law are non Canadians with their imprisonment based on the secret testimony of security officials whose judgement and knowledge has been found impaired by at least three commissions of inquiry and numerous court decisions.

What is particularly egregious about this law is that it classified residents of Canada into two categories: one for citizens and another for non-citizens. Yet most Canadians find that distinction completely acceptable. Not so many years ago, similar detentions were made in their thousands in the United States based on little more than place of birth. Subsequent information found that none were charged or were found to be involved in any aspect of terrorism.

I mention these two examples because they are the handmaidens of torture. They create in the minds of many the belief that in times of crisis it is appropriate to use discriminatory tools of secret information, denial of rights long understood to belong to all and to create a climate in which harsh interrogations in foreign countries are acceptable. Justice in the best of times is an elusive objective. In times of crisis it, along with truth, is a very early casualty. Unfortunately, many of our citizens find that acceptable and there is little inclination for change by governments.

The inquiries of Justice Dennis O’Connor and Justice Frank Iacobucci detail the willingness of Canadian police and security organizations to sanction torture in order to obtain information. However, in the reports from the O’Connor and Iacobucci inquiries there is ample evidence of the transgressions of both the RCMP and CSIS. But what is not made clear in these reports is the fact that political direction and oversight of the two organizations was completely absent.

Reading the two reports is to assume that both organizations operated in a time and space in which there was no one willing to stand out or up against the hidden powers available to our security and policy organization. There was no one who would say that it was morally wrong or contrary to the laws of Canada. Since 2001 there have been six different ministers in charge of the RCMP and CSIS and from the reports it is clear that none of them exercised any sense of direction or involvement in the work of these organizations. Equally, prior to 2001 there was a steady stream of inept ministers in charge of this area of government which in many countries is considered one of the most important and significant.

It was this laissez-faire atmosphere that made it impossible to obtain a consensus within government when there was a sense or understanding that torture or the possibility of torture was evident from the treatment of a Canadian in a foreign prison. Both CSIS and the RCMP with support from the PCO were not prepared to engage in collective action in support of the detained Canadians. This was amply demonstrated by Justice O’Connor in his report dealing with the attempt for a “one voice” letter to the Syrian government in support of Maher Arar. Rather both CSIS and RCMP tried with malice aforethought to deride the effort by even changing their characterization of Mr Arar. Once the effort was underway, they stated that he was the subject of a national security investigation. As Justice O’Connor succinctly wrote “He was not.”

Even more telling of this atmosphere are the contents of Justice Iacobucci’s supplementary report issued three weeks ago. The need for a supplementary report was necessary when the government refused permission for certain information to be published in his main report which was released in October 2008. The government argued that the information in question was injurious “to international relations, national defence or national security” in accordance to Section 38 of the Canada Evidence Act.

What was this “injurious information? Interrogation and investigatory techniques? Personal information? Not at all. The information was nothing more than an assertion by members of the RCMP and CSIS that “[i]t was not the responsibility of intelligence or law enforcement officials to be concerned about human rights of a Canadian detainee.” There are many problems with the main Iacobucci report but his ability to fight to get this assertion on the public record mitigates some of those problems. For our security and law enforcement officials to ignore concerns about the human rights of Canadians in foreign detention should be regarded as one of the most chilling admissions by officials of our most important institutions of government.

One aspect of the torture issue that is overlooked is the role of lawyers representing the government. We are all familiar with Shakespeare’s ringing phrase “Kill all the lawyers.” But with many such quotations, a very important preamble is dropped. The original phrase, from Henry VI, part 2, is “If you plan large crimes, first kill all the lawyers.” If he wrote today, Shakespeare might be inclined to say that you “first co-opt the lawyers.”

Unfortunately, large crimes and serious policy errors have occurred in recent years and lawyers for governments have been co-opted in the circumvention of the rights of citizens. Some of us who have laboured in government in these years have seen the role played by lawyers and some have been victims. Unfortunately, in Canada there has not been an examination of the role of lawyers in this nor are there examples of when lawyers for the government have exercise collective morality when they play a central role in such activities.

Lawyers have a preferred and honourable role in our societies. Their profession is self regulated and more than other employees of the state there are norms of behaviour and activity that support a large measure of independence for lawyers. However, in the passion to find the terrorists in our midst independence of thought and action by lawyers acting for the government has been foregone. In 1985 the Supreme Court of Canada had something to say about independence of thought by employees of the government of Canada. It has special relevance for those who are charged with the application of the laws of Canada:

In some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if,for example, the Government were engaged in illegal acts, of it its policies jeopardized the life, health or safety of public servants or others, of it the public servant’s criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.”

These are wise words anytime but particularly so when there are unfounded concerns of the presence of large enemies.

In the United States this issue has received much attention. Jay S Bybee and John C Yoo, both lawyers in the Department of Justice were the authors of an opinion in 2002 that gave legal authority for the aggressive interrogation of Abu Zubaydah, suspected of being an operative for al Qaeda. In an earlier report the lawyers in the Office of Professional Responsibility had concluded that both lawyers had demonstrated “professional misconduct.” A more recent report by a Department of Justice lawyer rejected that conclusion. Rather the new report stated that there was only “flawed legal reasoning” but that the two lawyers were not guilty of “professional misconduct.” The reasoning for this new conclusion: “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost.”

The legacy of Nuremberg gone on the altars of urgency and necessity. Least any think that is the end of the story, it should be known that Mr. Bybee is today a federal judge and Mr. Yoo is a professor of law at the University of California in Berkeley. In all of this, it is easy to take the easy road of condemnation and outrage when torture is discussed. Saudi Arabia and Syria are easy to condemn. But today the enemies of political and national morality are closer to home and in the words of Pogo, the great philosopher from the last century, “we have met the enemy and he is us.”