Intelligence-Sharing and Complicity in Torture

Ten years ago the Canadian government launched a public inquiry to look into whether the actions of Canadian officials had contributed to the torture and other grave human rights violations that a Canadian citizen, Maher Arar, had experienced while he was illegally imprisoned in Syria for a year in 2002 and 2003. How deeply disappointing, therefore, that ten years on we seem to be losing ground in addressing one of the most distressing revelations coming out of that inquiry: the insidious connection between shoddy, even unlawful, intelligence-sharing practices and torture.

Maher Arar had been arrested in September 2002 by US officials when he changed planes at New York’s JFK Airport while travelling home to Canada from a family holiday in Tunisia. Two weeks later he was unlawfully sent off to Syria in the middle of the night; a victim of extraordinary rendition. The torture began almost immediately and continued frequently during the first weeks of his imprisonment in Syria; a constant backdrop to interrogations set on getting him to confess to being a terrorist.

By the time Maher Arar was released and able to return to Canada in October 2003, troubling questions had mounted as to what had unleashed his human rights nightmare. Why was he considered to be suspicious? Who was saying what about him? And had Canadian officials played a role?

The public inquiry that was set up to look at those questions is perhaps the most exhaustive legal probe of a single person in Canadian history. The inquiry went on for two years and its reports are voluminous. The Commissioner, Ontario Court of Appeal Justice Dennis O’Connor, found that Mr. Arar did not constitute a security threat and there was no evidence implicating him in terrorist-activities or any offence. He also concluded that Canadian officials had shared unfounded, unverified and inaccurate information with foreign intelligence agencies, setting off the chain of events that ended with him being tortured in a Syrian jail cell.

That is why Justice O’Connor recommended the following in his report, issued in the fall of 2006:

Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture. Policies should include specific directions aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.

It shouldn’t even have been necessary to make the recommendation. Not necessary because sharing information in circumstances where it is apparent that it is likely to cause torture will almost always constitute a criminal act, under both international law and Canadian law. No matter the context; for nothing justifies or excuses torture. But the detailed examination of what went wrong in Maher Arar’s case made it clear that such a recommendation was in fact absolutely needed; a strong reminder that complicity in torture is both morally repugnant and criminal.

Maher Arar’s case and the cases of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, who were the subject of a subsequent judicial inquiry conducted by former Supreme Court of Canada Justice Frank Iacobucci, also uncovered problems with intelligence information flowing in the other direction: into Canada from foreign sources. Canadian law enforcement and security agencies had made use of information obtained from abroad even when it should have been obvious that the information had very likely been obtained through torture.

That too runs afoul of international human rights norms. Giving a wink and a nudge when torture-tainted intelligence arrives in a brown manila envelope is clearly counter to Canada’s binding obligations to confront and reject all torture and to ensure that all torturers are held accountable for their crimes.

The Iacobucci Inquiry reported in the fall of 2008. With two weighty reports from two highly respected jurists both pointing to similar, serious human rights concerns Canadians then waited for the government to respond. What legal and policy changes would be instituted to ensure that intelligence information would not be shared in circumstances likely to lead to torture; and that information from abroad that was probably obtained through torture would be rejected?

The answer to that question was, to say the least, not particularly forthcoming. In fact it has only emerged, in slow dribs and drabs, by virtue of dogged Access to Information requests filed by Canadian Press reporter Jim Bronskill.

And what he has uncovered is disturbing. Rather than remedy the human rights shortcomings revealed by the two inquiries, government policy, by way of Ministerial Directions on Information Sharing with Foreign Entities, has institutionalized and even obligated the very practices that contributed to the overseas torture of these four men.

These Directions, we now know, were issued to CSIS, the RCMP, the Canadian Border Services Agency, Communications Security Establishment Canada and the Department of National Defence over a period of several months in 2011. They are limited to situations involving a serious risk of loss of life, injury, or substantial damage or destruction of property. In such cases officials are authorized to make use of foreign information that may have been obtained through torture; and also to share information with others even when there is a serious risk that doing so will cause torture.

In other words, what was a shadowy, unacknowledged and unauthorized practice over a decade ago, when Maher Arar, Abdullah Almalki, Ahmad Abou Elmaati and Muayyed Nureddin were tortured in Syrian (and in Mr. Elmaati’s case, Egyptian) jail cells; is now official. To put it harshly, but accurately, complicity in torture is government policy.

In 2012 the UN Committee against Torture conducted one of its regular reviews of Canada’s record of compliance with the UN Convention against Torture; the first since 2005. Committee Members were obviously alarmed when they learned of the new Ministerial Directions. They urged Canada to amend the policy to bring it into conformity with international norms. And rather than wait several years for the next review to hear back from Canada on that; they imposed an exceptional one year reporting requirement. But when Canada did report back in 2013, it was evident that there would be no budging on this. The government told the Committee that the Ministerial Directions “represent a principled and proportionate response to terrorism and other threats to national security.”

There is nothing principled or proportionate about violating the essential and unconditional international legal prohibition on torture.

Encouraging, causing, countenancing, or benefiting from torture is wrong – both legally and morally. And it is wrongheaded to imagine that it is the route to a more secure world. Quite the contrary. Torture shatters lives, terrorizes communities and fosters the resentment, marginalization and divisions that are, if anything, likely to provoke more insecurity, instability and even terrorism.

The principled and proportionate response to terrorism and other threats to national security should and must lie in rejecting torture and shunning the torturer at every turn. These Ministerial Directions will almost certainly be challenged one day in Court. But why must it come to that? They are unlawful and should be changed; now.