The Book

This blog comments on Canadian (and occasionally comparative) national security law to update the book.


Faculty of Law
Common Law Section

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By Craig Forcese

Vice Dean &
Associate Professor
Faculty of Law
(Common Law Section)
University of Ottawa

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Friday
Feb102012

Vic Toews, Kant and Mill: Torture Again

Back in the news: The question of how in-bound intelligence information that may be the product of torture by a foreign intelligence service may be used.  At issue is a ministerial directive by Public Safety Minister Vic Toews which reads, in part:

I wish to reiterate my direction to the Service, as expressed to you verbally following my appointment as Minister of Public Safety, regarding the handling of intelligence received from or given to foreign agencies. This letter expands on the guidance contained in the Ministerial Direction to CSIS on "Information Sharing with Foreign Agencies" of 14 May 2009, which states that CSIS must not knowingly rely upon information which is derived from torture, and have in place reasonable and appropriate measures to identify information that is likely to have been derived from the use of torture.

In exceptional circumstances where there exists a threat to human life or public safety, urgent operational imperatives may require CSIS to discharge its responsibility 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 is understood that it may not always be possible to determine how a froreign agency obtained the information that may be relevant to addressing a threat. It is also understood 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. The final decision to investigate and analyze information that may have been obtained via methods condemned by the Government of Canada is to be made by the CSIS Director, or the Deputy Director Operations; this decision shall be made only in accordance with Canada's legal obligations. Consistent with the 2008 Ministerial Direction to CSIS on "Operations." I further expect to be notified of any such decision as appropriate.

The directive was obtained by one of the best reporters on the national security beat, Jim Bronskill.  The minister's note has provoked outrage and consternation among opposition parties and the human rights community.  Because I never learn, I have tried to inject a voice of caution in too sweeping and absolute a condemnation of the policy (with the usual consequences in terms of my email inbox).

In so doing, I am guided by a) the actual law on this issue (as opposed to norm entrepreneurship), b) the Ottawa Principles on Human Rights and Antiterrorism (a document drafted by a host of persons, including those with indisputable human rights pedigrees) and c) the logic laid out in prior posts such as this one.  And to be clear, we are not talking here about Canada aiding and abetting, inducing or facilitating torture -- the discussion is about passive consumption.

I won't repeat my analysis and readers may refer to the above-noted post and to art. 4.3.2 of Ottawa Principles on Anti-terrorism and Human Rights (far from an absolutist ban on acting on tips derived from torture).

Instead, I will simply propose a variant of the same question that I pose to my students in my national security law class every year.  (And in using this hypothetical, I don't mean to imply that events even close to these actually took place in the Air India case or to impugn or disrespect anyone touched by that tragedy.  I use the real life context to make the point that there are dangerous people in this world that would do us harm.)

On June 22, 1985, while working at CSIS, you receive a telex from a liaison with the Indian police that, summarized to its essence, reads: "We have a member of a Sikh militant group in our custody and we've given him our usual treatment and he's told us there is a bomb in the baggage of Air India Flight 182, scheduled for departure soon from Vancouver".  You know and are right that torture is practiced by the Indian police of the era and that the "usual treatment" in this missive is a euphemism for torture.

Question: Do you tip off the RCMP and airport security officials to search the baggage for Air India Flight 182 again?

There is no law that governs this situation, domestic or international (and no, Art. 15 of the Torture Convention simply does not reach this far).

If you answer "no", then like Immanuel Kant, you believe in absolutes and walk with the angels.  That certainty should fortify your conscience.  But the fact is that 329 people die when the bomb explodes over the Atlantic near Ireland.  And laws are likely tightened and new security powers created in response, and civil liberties diminished.  But at least you did not create a "marketplace" for tortured information by using it in any way.  You acted on the (pious) hope that by ignoring the Indian police tip off, the next time torturers somewhere decide whether they will torture, they will stay their hand, because the Canadians don't torture and they will ignore torture information.  Because the torturer cares about all this, after all.

If you answer "yes", then you are like me and the vast majority of law student in every class to whom I have posed this dilemma (there are always a few who like Kant).  You are unprepared to cry "let justice be done and the world perish". Or more specifically, you are unwilling to gamble someone else's life for your absolute principles.  You grew up reading John Stuart Mill, not Kant.  (Yes, I know, I'm dumbing down both Mill and Kant for effect).  You "use" tortured evidence in these "exceptional circumstances", where "a serious risk to public safety exists, and where lives may be at stake" (to cite to the ministerial directive).  You advise that the baggage be searched.  You violate no laws in doing so.  And maybe it makes a difference.

There are inevitable counterarguments.  First, torture intelligence is unreliable.  It certainly is, generally.  There's a whole literature on this point, as discussed in part in NSL, ch. 15.  And that unreliability is hugely problematic if on the basis of a tortured tip, huge swathes of resources are poured into chasing false leads.  But we needn't always follow that slippery slope.  Redoing a search of baggage on Flight 182 doesn't fall into this category of "resource intensive".

Second, critics contend that the "ticking time bomb" type scenarios of the sort I paint above don't happen.  And they are probably mostly right when we talk about the sort of extreme ticking time bomb scenarios portrayed in TV shows like "24" -- instances of extreme urgency where Jack Bauer is led inexorably by piled implausibility upon implausibility to shoot someone in the knee cap.  But the reality is that sometimes tainted information does point to actual peril.  Yuval Ginbar worked (and maybe still works) for Amnesty International and he wrote Why Not Torture Terrorists? Moral, Practical, and Legal Aspects of the “Ticking Time Bomb” Justification for Torture  (Oxford University Press, 2008).  He is strongly opposed to torture -- that is what is book it about. But he acknowledges (however briefly) empirical evidence of cases that appear to satisfy the ticking time bomb’s premises. 

All of this is to say that the conversation about what to do with tips from torturing states should not be about "never".  Instead, it should be about what the "extraordinary circumstances" are that Minister Toews speaks about, and what then can be done with the information.  "Yes" to a search of Flight 182's baggage.  "No" to deporting someone on the strength of problematic information.  Where to draw the line?  In essence, that is the dilemma with which the Ottawa Principles try to grapple.

As for Minister Toew's directive: Where I fault the directive is in its lack of precision: what does it mean by extraordinary circumstances, and what then can happen to the information.  Where can it creep?  A little Ottawa Principles-like language would be preferred. 

But more generally, to this point, CSIS policies have made earnest (and unrealistic and unfulfilled) promises about non-use of doubtful intelligence.  Toews's directive no longer leaves it in the hands of the person on the end of the telex in 1985 to decide "what do I do".  It no longer expects CSIS to protect us and wear the consequences of both doing and failing to doing so when the telex comes through.  Put another way, Minister Toews' directive is politically courageous, in the manner intended by Sir Humphrey Appleby in "Yes Minister".  He takes political responsibility for the difficult dilemma.  I doubt Minister Toews numbers me among his fan club.  But I find it difficult to fault him for tackling this issue.