Canada's torture consumers and the faux national security consultation

Anyone following discussions on the ultimate disposition of the Harper regime's C-51 "anti-terror" legislation -- which received crucial Liberal support during a 2015 Parliamentary vote -- will soon be hearing a lot about "SIRC." The acronym will be bandied about as various professors, lawyers and terrorism industry "experts" bloviate on what they think will "improve" a law that is so fundamentally flawed and dangerous that taking anything short of an abolitionist position is to be complicit in the human rights abuses C-51 authorizes.

SIRC stands for the Security Intelligence Review Committee, a body that produces annual reports on some of the workings of Canada's torture-complicit spy agency, the Canadian Security Intelligence Service (CSIS). It also handles complaints about CSIS misbehaviour. Run on a relative shoestring, SIRC has in the past produced some good reports on CSIS malfeasance, but its recommendations are not binding. As the organization has evolved over the past 32 years, however, it has, by its own admission, moved from being a strong critic of CSIS to a body that essentially shares the spy agency's values and mission. In many respects, they are now more of a cheerleader for CSIS -- gently prodding them along in an annual catalogue of errors -- than the kind of objective, investigative body that is so sorely needed.

SIRC's latest annual report repeats the standard pablum about their "assurance" that CSIS "investigates and reports on threats to national security in a manner that respects the law and the rights of Canadians." They also state that they look forward to being part of an expanded, integrated effort to "strengthen accountability and public confidence in Canada's national security organizations." But isn't building such confidence supposed to be the work of those agencies themselves, as opposed to the arms-length groups that require objective perspectives about the true nature of their operations?

Nonetheless, accommodationists who are willing to sacrifice human rights in the name of "making C-51 work" are at the forefront of efforts to produce a "Super SIRC" that would extend SIRC-like review to all of Ottawa's state security apparatus. This window-dressing would be the bone the Trudeau government throws to divide opposition and win what it considers enough acceptance to keep most of C-51 intact. But the danger of the SIRC model, despite its successes, was revealed in its bizarrely titled 2015/16 Report, "Maintaining Momentum" (for what, exactly?).

SIRC legitimizes torture

With this report, SIRC itself has stepped into dangerous legal territory by granting legitimacy to a series of illegal Harper-era memos that invited a variety of government agencies to trade in torture-gleaned information or to provide information that might lead to torture. While it is no surprise that agencies of the Canadian government regularly engage in such reprehensible and illegal practices -- this was confirmed by two judicial inquiries into the torture of Canadian citizens Abdullah Almalki, Maher Arar, Ahmad El Maati and Muayyed Nureddin, as well as judicial findings of torture in the cases of Omar Khadr and Abousfian Abdelrazik -- SIRC now finds itself on the spectrum of complicity in torture by determining how CSIS was handling its tortured intelligence (rather than properly declaring the practice patently illegal).

The International Commission of Jurists (ICJ), one of the most eminent legal groups on the planet (which in the past has included Canadian judges), released a report in 2009 (Assessing Damage, Urging Action), noting its serious concern that:

"States have publicly claimed that they are entitled to rely on information that has been derived from the illegal practices of others; in so doing they become 'consumers' of torture and implicitly legitimize, and indeed encourage, such practices by creating a 'market' for the resultant intelligence. In the language of criminal law, States are 'aiding and abetting' serious human rights violations by others."

The ICJ notes that the practice of trading in such torture-tainted information "undermines the absolute prohibition on torture which entails a continuum of obligations -- not to torture, not to acquiesce in torture, and not to validate the results of torture and other cruel, inhuman or degrading treatment."

But this is exactly what the Harper torture memos continue to do under a Trudeau government that has allowed them to stand as is. CSIS, the RCMP, the Canadian Border Services Agency, the Communications Security Establishment, and the War Dept. were all authorized by the torture memos to become illegal consumers of torture, and SIRC's "Maintaining Momentum" simply reviews how the consumption of torture is being digested. SIRC, despite all of its talk about respect for rights and the law, utterly fails in its own mission by refusing to state the obvious legal conclusion: that the memos violate the absolute, no-exceptions-allowed ban on torture and complicity in torture, and as such should be abolished immediately. Instead, SIRC decided to determine whether CSIS was acting within the illegal parameters set out in its ministerial memo, which it says "established a process for determining when it may be possible to exchange information even when it may not be possible to mitigate a substantial risk of maltreatment."

SIRC concluded that CSIS handled its consumption of torture in an appropriate manner, giving them gold stars for holding substantive discussions. However, they found that these secretive meetings discussing the fruits of torture or whether to send information that could lead to torture required "recording of the decision-making process, especially at the management level." They note CSIS has developed its own internal criteria for consuming torture -- or setting someone up for torture -- while "CSIS elaborated a clear course of action for determining when it may be permissible to exchange information, even when it may not be possible to mitigate a substantial risk of mistreatment," (mistreatment being the more pleasant term for torture in SIRC's reporting).

This is the kind of siloed "legal" thinking that led to the Bush torture memos and Nazi atrocities, among many other similar crimes. When you don't like the legal structure that imposes limits on your activities, you simply create your own little world, justify it with lots of balderdash about torture "mitigation," and get your "review" body to rubberstamp it, with the odd suggestion thrown in to properly bureaucratize and sanitize the work of Canada's desk torturers. It is plainly illegal for CSIS to determine what is "appropriate" or "permissible" in this area when the Convention Against Torture to which Canada is a legally binding signatory explicitly states that any such acts are prohibited in any and all circumstances.

SIRC then goes on to recommend better record-keeping and documentation of these illegal deliberations, as well as better criteria on the use of "assurances" from torturers that information provided will not be used to torture someone, or that inbound information will not be coming from someone whose testicles are being crushed. Such "assurances" have been roundly condemned by international human rights bodies as one more blatant legitimization of torture.

SIRC's complete failure to recognize its complicity in torture should be a cautionary note for those who hear its name praised by the respectable experts who will soon be appearing before Parliamentary committees examining Canada's state security practices.

A faux consultation

Those Parliamentary hearings will serve as a follow-up to a faux public consultation which invites participants to share their thoughts in online surveys (which, despite apparent anonymity, can be easily tracked by Canada's spy agencies). The starting point for the "consultation" is a Green Paper that is full of unsupported assumptions that must be accepted to properly participate. Its repeated bald statements, leading questions, and scare-mongering are designed to produce the kind of results the government wants to hear: that a few tweaks to existing laws can keep us safe and allow our super spies to do their fine work.

Indeed, the Green Paper's framework is premised on the wearing of rose-coloured glasses: "National security institutions in Canada are professional, responsible and effective in the work they do. They work within a well-defined set of legal authorities and respect Canadian law." For those not currently laughing, consider the recent case of the RCMP-initiated terrorism plot in B.C., in addition to the abovementioned complicity in torture, not to mention the sexual assault crisis within the Mounties acknowledged last week by its top Commissioner.

Typical of the Trudeau era of surface-only sensitivity, Muslims and Islam are not mentioned once in the Green Paper. But then again, they don't have to be, because in the state security "scenarios" it asks us to imagine, every single discriminatory narrative and media trope about dangerous, radicalized Muslims is clearly outlined in all but name, from the "charismatic speaker" to the "online radicalization" to the "extremist traveller" with anti-Western" views.

For example, the Green Paper explains a situation in which CSIS would not need a warrant to ruin someone's reputation and chances for future employment:

"Mr. C, a Canadian citizen, attends Mr. A's weekly meetings. He has even voiced support for terrorist activity in Canada in response to terrorist propaganda encouraging attacks in the West. Mr. C is seeking employment as a guard for a firm that provides security at major concerts and other events. CSIS approaches the firm and provides information about Mr. C. Once aware of Mr. C's support for terrorist activity, the firm launches an investigation and decides to restrict Mr. C's work. As a result, Mr. C does not gain privileged access to major events where he could pose a security threat."

But given the highly elastic definition of what constitutes terrorist action, and CSIS' history of falsely naming individuals as security threats -- especially Muslims -- such practices open the door to serious abuses. Yet this is what the Trudeau government, as a starting point for its consultation, considers perfectly legitimate behaviour. 

Muslims still the target

Ultimately, no one who reads this 80-page report will conclude that it is aimed at stopping the work of white nationalists who shoot down RCMP officers or neo-Nazi groups who set fire to mosques or burn Alberta hotels owned by Sikhs.

Tellingly, its priority is in the title: "Our Security, Our Rights" (not the other way around). It is also full of the kind of paranoia and hyperbole that renders meaningful dialogue impossible. "Since the start of the Syrian conflict in 2011, many Canadians have travelled to Syria and Iraq" to join Daesh, the report states. And yet the standard definition of many ("constituting or forming a large number") is not backed up, even by the government's own statistics, which tends to hover around 150 overseas individuals, with 50 returnees. But the government's record-keeping on such numbers is off-limits to scrutiny and verification: are individuals counted upon leaving and returning? Do they include women and children noncombatants as well as those who travel to join "legitimate" anti-Assad forces? Even assuming the government's figures are accurate, what percentage of the 1 million Canadian Muslims (the community which remains the primary target for Mountie/CSIS surveillance) has travelled overseas? The answer: 0.00015 per cent. Hardly "many" Canadians.

The report warns that those who return represent "trained and connected terrorist actors in Canada." This revives the old Communist cell paranoia of the Red Scare, ticking time bombs waiting to be activated by Moscow. It also plays into the false "once a suspect, always a suspect" idea that these are irredeemable individuals as opposed to people who may have come back because they saw no sense in being there or disagree with what they saw.

The Green Paper also starts from the presumption that rights will have to be eroded. Acknowledging in a backhanded manner that government actions "can" impact rights, the paper asks: "what is an appropriate and reasonable impact?" In other words: your rights will be violated in any event, so which ones would you prefer to be interfered with, and how deeply? That's why the report's title clearly places rights in a secondary position after security. After all, it points out, the Charter of Rights and Freedoms states that these values "are not absolute and that at times they may justifiably be limited." Translation: get used to the civil liberties clampdown.

Anyone concerned about privacy rights will also face frustration here, as the report baldly states: "It is difficult to hold an informed public debate about whether privacy impacts are appropriate. In part, this is because revealing some details about national security operations can undermine their effectiveness." But as we learned last summer, the Communications Security Establishment, which scoops up emails and phone calls by the billions, was revealed to have increased its interception of our private communications 26-fold in the past year. Why is it difficult to hold informed debate about such privacy intrusions?

Clouding the issues

The Green Paper is also meant to cloud issues, not clarify them. While stating that Canada must fight terrorism to be in compliance with its international obligations, it fails to mention that Canada must respect such international human rights obligations as the Convention Against Torture. While the paper references a series of judicial inquiries at one point, it does not mention that they were grounded in Canada's failure to respect the anti-torture treaty.

The endless scenarios presented in the report are annoying, as is the self-congratulatory tone about law enforcement looking out for our own good. While we are informed that the spies and secret agents are here "to support individuals at risk of radicalization to violence" -- as if they will hand out blankets and provide free hugs to conflicted folks -- they fail to mention that many of those individuals are coerced into spying on their community, threatened with jail or terrorism peace bonds, or set up to take the fall for RCMP-initiated bomb plots, as a B.C. judge recently concluded happened in the Nuttall case.

The leading questions continue, building on the sense of imminent danger: "What information and other tools do you need to help you prevent and respond to radicalization to violence in your community?" This is the kind of question that leads to Barbaric Cultural Practices hotlines and anonymous snooping on the new Syrian refugees who have arrived in your community. It generates suspicion and fear, creating the impression that Canadians are subject to an all-pervasive community affliction, with strong parental invocations beginning each family dinner: "Children, did you hear anything about rejecting Western values and freedoms and our fantastic way of life today while you were in school or at the mosque or over at Ahmad's house?" Again, with no evidence to back up the question, readers are asked: "Given the nature of the threats facing Canada, what scope should CSIS have to reduce these threats?"

Meantime, the government assures us that CSIS and the RCMP will not spy on and harass those engaged in protest activities, as long as they do not involve violence. But what is violence? Anyone who has ever attended a nonviolent direct action training workshop -- and goodness knows, plenty of undercover police spies have sat through these -- knows the difficulty in defining the term, which could include anything from blood pourings and spiking trees to calling a strike-breaker a scab. To underscore their point, the Green Paper uses another scenario, in which:

"A national park is located near a natural gas pipeline, a critical infrastructure site. An official at the park notices a group gathering to protest near the pipeline. Even though this information deals with critical infrastructure, the official cannot disclose this information … because protest, advocacy, dissent, and artistic expression are explicitly excluded from the definition of 'activity that undermines the security of Canada.'"

But long before C-51, we learned, unsurprisingly, that the RCMP and CSIS had been monitoring environmental groups appearing before the National Energy Board hearings on proposed pipelines. The two agencies gathered information on groups and individual members not just from newspapers and Internet postings but from "confidential sources" (informants and undercover officers attending meetings), and then shared that information with oil companies appearing before the hearings, as well as with members of the NEB itself. Needless to say, then-environment minister Joe Oliver had been referring to environmentalists as "extremists" and "radicalized" as well.

However, Trudeau's Green Paper would have you believe that they have "made a commitment to ensure that Canadians are not limited from lawful protest and advocacy." 

Dire warnings

For those who make it to the end of the Green Paper, dire warnings about the inability of spies to protect us are fired off in all directions, especially when it comes to issues like encryption and the ability of police to access our private information. The basic message is clear: if we do not make it easier for police to monitor our online activity, access our basic subscriber information, and intrude on other private material, "key evidence may be lost and opportunities to prevent a crime from happening missed."

In conclusion, we are told, "Canadians expect the Government to keep them safe." Yet what threatens people in their daily lives? Public opinion polls, as well as common sense, would seem to indicate it would be catastrophic climate change, oil spill ruptures, filthy air and water, an epidemic of violence against women, a lack of affordable housing, income inequality and high rates of poverty, a mental health crisis with nowhere near the services needed to meet it, an economic system that adds untold stress to most people's lives, reckless decision-makers in the immigration bureaucracy, spy agencies that run roughshod over individual and collective rights, a refusal of the Trudeau government to respect the UN Declaration on the Rights of Indigenous Peoples, and corporate concentration of a media that rarely covers these issues. 

None of these are considered in Canada's so-called national security strategy, which, like all of the Trudeau consultations, is simply the superficial appearance of a democratic dialogue that will later be used to justify its rubber-stamping of a pre-determined course of action. Playing along within these parameters dooms us to accepting their agenda: confronting the bigger questions and demanding nothing less than abolition of C-51 and significant rollback of similar legislation, along with honest discussion on what truly constitutes human security, seems the only honest way of responding.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. 'national security' profiling for many years.

Photo: Kent Lins/flickr

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