Photo: Matthew Berens

In order to prevent death and significant injury, the Trudeau government announced last month that it is willing to inflict death and significant injury via complicity in torture.

This barbaric decision — the kind smug Liberals would like to think is more appropriate to the Donald Trumps and Stephen Harpers of the world — is part of the Trudeau team’s efforts to pretty up the dangerous C-51 “anti-terrorism” act that they supported while in opposition. It also contradicts Trudeau’s October 25 public declaration that “nobody, ever, deserves to be tortured.” 

Readers may recall the infamous Harper-era torture memos of 2011 that allowed a range of government agencies, including the Canadian Security Intelligence Service (CSIS), the Royal Canadian Mounted Police (RCMP), Canadian Border Services Agency (CBSA), the Communications Security Establishment (CSE), and the War Dept. to trade information with torturers. Such memos placed the Canadian government in contravention of legally binding commitments against complicity in torture.

But in a classic Liberal “solution,” Public Safety Minister Ralph Goodale decided in September, via a series of new memos, to continue defying the absolute prohibition on torture. Instead, Goodale will continue to build on the concept of “torture controls,” which require the creation and maintenance of a bureaucratic torture infrastructure dedicated to determining who gets tortured, under what circumstances, and who is provided immunity for engaging in such illegality. In essence, by trading information with torturers, these bureaucrats become what is referred to by the International Commission of Jurists as “torture consumers.”

This is, of course, not new in Canada. The immigration bureaucracy, for example, with the aid of a dreadful Canadian Supreme Court decision from 2002, has long worked to deport individuals to torture employing the court’s undefined “exceptional circumstances” rationale. Ottawa’s Mohamed Harkat and Toronto’s Mohammad Mahjoub, for example, continue fighting Ottawa’s efforts to deport them to torture in Algeria and Egypt, respectively, under the secret, untested allegations contained in the so-called security certificate regime.

The “exceptional circumstances” clauses that open door to torture are included in the appendices of Goodale’s new memos, completely eviscerating any commitment to rule of law and human dignity that Goodale seeks to celebrate in his sunny ways announcement. While Goodale notes that Canada is a signatory to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), he neglects to mention that Article 2 of the CAT is unequivocal: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Cognitive dissonance on steroids

In language that will likely win Goodale a nomination in the 2017 Cognitive Dissonance Awards, Goodale declared in a September 25 statement that, “I have issued new Ministerial Directions on Avoiding Complicity in Mistreatment by Foreign Entities to Public Safety’s security and intelligence bodies. They replace the 2011 Ministerial Directions on Information-Sharing with Foreign Entities.”

Goodale went on to declare that, “the Directions provide substantial improvements over the previous ones under which these bodies have been lawfully operating.” Unfortunately, he fails to address the fact that in both the prior and new versions of the memos, all the agencies were acting — and will continue to operate — in defiance of the Convention Against Torture and the Criminal Code of Canada.

But avoiding something is not prohibiting it, and “torture” is replaced with the watered down “mistreatment.”

The new memos prohibit “the disclosure of information” or the “making of requests for information” that would “result in a substantial risk of mistreatment of an individual by a foreign entity.” But that is merely a legal quibble: what if, instead of a substantial risk, sharing information opens the door to a probable or likely risk of torture? Goodale says that, “in some cases, particularly where the risk is of severe harm,” the standard of probability may be applied. But this is completely missing the point: the risk of causing torture in ANY circumstances is prohibited, and it is not up to the well-meaning “desk torturers” sitting in Ottawa bunkers to make any other call.

Equally problematic is that the very same people who were complicit in the torture of a series of Canadians over the past 17 years remain either firmly ensconced in the agencies receiving the “new” memos, or have parachuted into private practice as “security consultants” and media flaks, whose soundbytes are eagerly and uncritically accepted by the likes of the CBC. Indeed, Michel Cabana, who played an active role in the decisions that led to the torture of a number of Canadians (as documented by two separate judicial inquiries), now works as a Deputy Superintendent of the RCMP.  

Sunny Ways Torture Rhetoric

The language through the rest of the memoranda is of the “you can feel bad if it makes you feel better” variety that makes up so much of Team Trudeau’s messaging on every single issue that crosses its desk. The Sunny Ways rhetoric continues to shine, even while the implementation of the Harper agenda continues unabated.

For example, the Goodale memo also prohibits “certain uses” of information gleaned from torture, but not “all uses” of said information. The minister would prefer us to enjoy his statement that “Torture and other cruel, inhuman, or degrading treatment or punishment represent affronts to Canadian values. The Government of Canada opposes in the strongest possible terms their use, including in responding to threats to national security.”

But it doesn’t exactly oppose torture in the strongest terms when, for example, the memo states that “CSIS must avoid knowingly contributing to mistreatment by foreign entities.” Such a statement undermines the findings of two judicial inquiries into the torture of four Canadian citizens — Maher Arar, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin — in which agents of CSIS, the RCMP, the Justice Department, and other Canadian agencies often simply refused to recognize or acknowledge that they knew sending questions to be asked of these men while in Syrian and Egyptian detention would lead to their torture. Pleading ignorance, or willful blindness, has been standard operating procedure when it comes to seeking accountability with these agencies.

But even when it is clear that Canadian actions will led to torture, recent history shows which preferential option state agencies will choose. In one instance documented by the O’Connor Inquiry into the torture of Maher Arar, a letter drafted in Global Affairs on the issue of sending questions that Syrian torturers could put to Abdullah Almalki pointed out that a number of their departments “have pointed out to the RCMP that if such questioning is carried out by the Syrian security services, there is a credible risk that it would involve torture.” A subsequent memo declared that, “The RCMP are aware of this but have nonetheless decided to send their request.”

No Accountability

Goodale assures Canadians that there will be accountability in how CSIS trades information with torturers because it will produce a secret report annually that will be presented to the Security Intelligence Review Committee (a body that produces normally sympathetic reviews in looking at some CSIS activities). Some pre-approved contents of that report may also be shared with the National Security and Intelligence Committee of Parliamentarians, another new toothless body the Liberals are creating to provide the misleading guise of accountability.

But the problem here is readily apparent. Even assuming these bodies (SIRC and the Parliamentary committee) have a remotely important role in preventing torture, they cannot exercise that mandate, despite being sworn to secrecy, because they will only find out about the torture after it has occurred. Indeed, the memorandum states that “information relating directly to an ongoing investigation carried out by a law enforcement agency may be provided to the Committee when the investigation is no longer ongoing.”

Thus, if someone is undergoing electric shock at this moment in an Egyptian dungeon because of questions being emailed by CSIS and the RCMP to the torture-soaked Egyptian intelligence agencies, that cruel act of illegality will not be shared with the review bodies because it is part of an ongoing investigation. They will only learn about this when loved ones bring it to their attention or if the individual is lucky enough to escape the clutches of their torturers. In any event, the state security bodies will refuse comment in the interests of “security.”

After the filters of SIRC and the Parliamentary committee, the public may see a redacted version of the report as well. But the idea that anything of substance will be shared with the public is limited, as witnessed by the 2016 public report of SIRC.

In a bizarre report called Maintaining Momentum, SIRC refused to condemn the illegal complicity in torture that CSIS had been authorized to engage in with the 2011 Harper memos (and which is also authorized under the notorious C-51). 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 sympathetic reporting).

Legitimizing unspeakable crimes

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. Although it is plainly illegal for CSIS to determine what is “appropriate” or “permissible,” it’s review body will not test its inquiries against the Convention Against Torture’s absolute prohibitions.

Needless to day, these problems are wholly unaddressed in the Goodale Torture Memos.

Ultimately, the agencies who are subject to the updated torture memos have never shown one iota of concern for human rights, and there is no indication how, despite all of the public documentation of their racist bias and callous disregard of certain human lives, they will change.

Our challenge is to rise above the lowered expectations that ask us to accept “reasonable” limits on state violence. We have seen the disaster that emerged when the language regarding abolition of war and its instruments devolved from disarmament to “arms control” and “monitoring of export permits” and “weapons registries.” Canada has long supported the notion that instead of ending the production and distribution of weapons of mass murder, companies should be registered with the appropriate arms control body before selling machine guns that can wipe out a village by firing 4,000 rounds a minute.

And so it goes with Canada’s ongoing approach to torture. As long as we accept  “limitations” on unspeakable crimes, we enter a realm of debasement that legitimizes the unspeakable and allows for its toxic growth.

Photo: Matthew Behrens

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Matthew Behrens

Matthew Behrens is a freelance writer and social justice advocate who coordinates the Homes not Bombs non-violent direct action network. His column “Taking Liberties” examines connections...