No means no, redux

Just when it looks like the ministerial directives at CSIS couldn’t get more troubling, Jim Bronskill and his Access to Information requests uncover ever more disturbing material.

As readers of these pages will recall, last month, Mr. Bronskill reported on a December 2010 ministerial directive in which Public Safety Minister Vic Toews apparently informed CSIS that the agency is expected to rely on information potentially obtained through torture in “exceptional circumstances.” That was distressing enough, given that relying on evidence derived from torture violates the universal and absolute prohibition against torture. But last week, Mr. Bronskill reported on another document obtained through the Access to Information Act, even more troubling than the December 2010 directive.

In a four-page directive issued in July 2011 to CSIS director Richard Fadden, Minister Toews outlines the procedures for sharing information with foreign agencies in cases where such cooperation carries “substantial risk” that someone will be tortured.

While Minister Toews’ parliamentary secretary has said that the directive is “in line” with Canada’s international human rights obligations, we respectfully disagree. That there is even a procedure in place to assess whether Canada should cooperate with foreign agencies if such cooperation would result in torture bespeaks a fundamental misunderstanding of what is permissible under the international human rights regime.

To be clear: the prohibition against torture isn’t simply a promise to not explicitly and directly engage in torture. In order for the prohibition against torture to have any meaning or efficacy, all activity associated with torture must be equally condemned. That certainly includes accepting and using evidence derived from torture, and in sharing intelligence with foreign partners with the knowledge that torture may well result.

Our colleagues at Amnesty International Canada have issued a terrific open letter to Minister Toews and Mr. Fadden. (Go read it!) They quote at length the recommendations of Justice O’Connor at the conclusion of his inquiry into Canada’s complicity in the rendition and torture of Maher Arar, and make the excellent observation that the July 2011 directive “in fact institutionalizes one of the serious shortcomings that led to the human rights violations” discovered during the Arar inquiry.

There is much to be learned from Justice O’Connor’s findings and recommendations, but the teaching that keeps coming to our minds is this: “Canada should not inflict torture, nor should it be complicit in the infliction of torture by others.” It’s something that cannot be repeated enough.


No means no

Jim Bronskill is reporting today on a December 2010 directive recently obtained under the Access to Information Act, in which Public Safety Minister Vic Toews has apparently informed CSIS that the spy agency is expected to rely on information possibly obtained through torture in “exceptional circumstances.” As per Jim Bronskill:

The latest directive says in “exceptional circumstances” where there is a threat to human life or public safety, urgency may require CSIS to “share the most complete information available at the time with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment.”

In such rare circumstances, it may not always be possible to determine how a foreign agency obtained the information, and that ignoring such information solely because of its source would represent “an unacceptable risk to public safety.”

“Therefore, in situations where a serious risk to public safety exists, and where lives may be at stake, I expect and thus direct CSIS to make the protection of life and property its overriding priority, and share the necessary information – properly described and qualified – with appropriate authorities.”

We fear that we’re beginning to sound like a bit of a broken record here at the National Security Blog, but some things seem to need repeating: The prohibition against torture is absolute and non-derogable. That means it allows no exceptions, and there are no “extraordinary” circumstances under which torture is acceptable. The UN Convention Against Torture cannot be more clear on this point: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Like the prohibitions against slavery and genocide, the prohibition against torture is widely recognized as a peremptory norm of customary international law. Saying that there are exceptional circumstances where torture is acceptable is akin to saying that there are exceptional circumstances where slavery or genocide are acceptable. Under customary international law, Canada has an affirmative obligation to prevent torture. So it is not enough for Canada to say that it is not itself engaging in torture, because it has a legal responsibility to ensure that its actions don’t make it complicit in torture, or condoning of torture.

And using information derived from torture (or even potentially derived from torture) condones torture and abuse. As per usual, we can’t put it any better than Alex Neve, Secretary General of Amnesty International Canada:

“The bottom line is that as long as torturers continue to find a market for the fruit of their crimes, torture will continue,” he said.

Canada cannot become a market for torturers and their information. While the government has at various times insisted that it does not rely on information obtained through torture, this most recent report does little to assuage concerns that Canada is running seriously afoul of its international obligations and its own commitment to the most basic of human rights.

As the Supreme Court of Canada has observed, “torture is an instrument of terror and not of justice.” There can be no place for torture in Canadian society.

No exceptions.

Whispers and innuendo

Today, the BCCLA wrote to the Minister of Justice and the Minister of Public Safety about a recent government leak of purported intelligence information implicating two Canadians in a terrorist plot. The contents of the leak, the timing of it, and the government’s public statements in response to the whole affair all raise serious concerns, including whether the Canadian public can truly be informed via selective leaking of cherry-picked information.

In August, La Presse, a Montreal newspaper, published an article describing an alleged conspiracy between Adil Charkaoui and Abousfian Abdelrazik to place an explosive device on an aircraft. The alleged conspiracy was outlined in a document leaked to La Presse, which purported to be a 2004 report from CSIS summarizing conversation reportedly intercepted in 2000.

Messrs Charkaoui and Abdelrazik should be familiar to readers of these pages. Mr. Charkaoui spent six years living under a security certificate, during which time he was subjected to detention, house arrest, and constant surveillance. The security certificate against him eventually collapsed because the government refused to provide either him or the court with sufficient evidence to justify the certificate. Mr. Abdelrazik is a Canadian citizen who was arrested in Sudan at the request of the Canadian government, and whose efforts at returning home to Canada were repeatedly stymied by the government until a Federal Court declared that Canada was violating Mr. Abdelrazik’s constitutional rights. Neither man has ever been charged with any terrorism-related offences.

The allegations in the La Presse article were quickly seized upon and reported by the national media. And in response to these reports, Immigration Minister Jason Kenney stated:

I read the protected confidential dossiers on such individuals, and I can tell you that, without commenting on any one individual, some of this intelligence makes the hair stand up on the back of your neck. I just think people should be patient and thoughtful and give the government and its agencies the benefit of the doubt.

Thus, having failed (for years) to make out a case against either Mr. Charkaoui or Mr. Abdelrazik in the courts, government is now seizing on the selective leaking of decade-old intelligence information to make its case against these men in the media.

Our letter goes into considerable detail about our various and serious concerns, which we won’t repeat here, but we do make one point that bears re-emphasizing: Leaks of this sort — decontextualized and selective — do little by way of providing a complete and truthful account of events. Instead, selective disclosure only leads to concerns that the story is actually being manipulated.

Read the entirety of our letter here. We also commend you to some very thoughtful commentary on this leak. Professor Reg Whitaker provides an informative account of previous similar leaks in his analysis. Professor Craig Forcese thinks that this leak raises some interesting questions that the government should be asking.

The potential negative consequences cannot be overstated

Last week, Jim Bronskill with the Canadian Press reported on the findings in an annual review conducted by the CSIS inspector general, which he obtained via the Access to Information Act. According to that annual review (published in November 2010), CSIS has continued to fail in ensuring the accountability standards set by the Supreme Court of Canada in 2008 in Charkaoui v. Canada (Citizenship and Immigration), (2008) 2 S.C.R (“Charkaoui II”) are met. Under the Court’s ruling in Charkaoui II, the agency is required to, inter alia, “retain all operational notes, electronic intercepts, and other investigative material”. As reported by the Canadian Press:

During her review, CSIS inspector general Eva Plunkett asked the service for original, hard-copy notes cited in agency reports.

“In a number of cases the service was unable to locate hard copies of the operational notes,” Plunkett wrote.

After further examination, CSIS determined that its own reports were wrong and that no notes had been taken to support the information in them, she found.

The spy service also had trouble figuring out the process for referring to original notes — a problem Plunkett considered “significant.”

“One must know where to look to determine whether operational notes exist and where to find them for retrieval and future reference,” says her review.

Disturbingly, Plunkett found problems relating not only to record-keeping but reporting as well, and noted that “the rate of errors continues to grow”. Again, from the Canadian Press:

Once errors — even small ones such as incorrect interview dates — are introduced, it can result in wrong information being shared or forming the basis for operational decisions, her review says.

“The potential negative consequences that errors of this type could have on service investigations, and on individuals affected by the use of service information, cannot be overstated.” 

Plunkett says accuracy is essential if CSIS is to make fair and balanced use of the information it collects.

“When errors of this nature do come to light, they have a highly detrimental effect on the service’s credibility both with Canadians, the judicial system and with other intelligence agencies.”

This report comes as troubling news to the BCCLA. As we discussed in our most recent post, mistakes made by CSIS can have devastating consequences for individual Canadians. Given the highly secretive nature of intelligence gathering and sharing, Canadians need to have confidence that CSIS is doing its job carefully, accurately, and in an accountable fashion. Accuracy in data collection and document retention is crucial in ensuring accountability, as we saw in the Almrei security certificate case. In light of the intensive intelligence-sharing between CSIS and foreign governments, it goes without saying that there is a great need for CSIS to exercise caution and care in carrying out its duties.

CSIS plays an important role in protecting our national security, but its work must be accomplished in a responsible and scrupulously careful manner. The inspector general’s review serves to remind us that concerns regarding the agency’s practices are still active and require attention.