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“I HOPE THEY CATCH the sods who did it,” said the workman who was installing a new floor in my mother-in-law’s kitchen near London, England. “ It was July 7, 2005, just five short minutes after the first radio report of explosions on Underground railway trains, and he was already back to work. Fifty-two people were killed and around seven hundred injured in the attacks. But the response of the British public was calm and measured. Later that day, my sister-in-law received a phone call from friends who, unable to find a train home after work, had repaired to a pub instead. The next day, I received an e-mail confirming a lunch meeting a few days later near Tavis-tock Square, where one of the suicide bombers had destroyed a double-decker bus.
The reaction of the British government was also measured. The army was not called in. The police described their work as a criminal investigation. A G8 summit meeting continued at Gleneagles, Scotland, with Prime Minister Tony Blair back at the negotiating table after a quick trip home to London.
The British had been bombed before. At the height of the Blitz in September 1940, German aircraft dropped more than five thousand tons of explosives on London in just one month. Later that year, Coventry was hit by nearly nine hundred incendiary bombs during a single night. For three decades, the Irish Republican Army (IRA) maintained a terrorist campaign against London, claiming more than one hundred lives. In 1973 alone, thirty-six bombs were detonated in the British capital. I remember taking the Underground on February 9, 1996, the day that a truck bomb exploded at Canary Wharf, killing two people and destroying a six-storey building. Yet the foundations of British democracy remained unshaken. Catholics or people of Irish ancestry were not collectively blamed. The IRA taught the British an all-important lesson: if you are fighting to defend your way of life, you must not give up your way of life.
In contrast, our American neighbours had little experience with terrorism prior to September 11, 2001. Many aspects of their response were excessive. They detained U.S. citizens without charge or access to lawyers, conducted a widespread and illegal electronic surveillance program, produced spurious legal opinions justifying torture, then invaded an uninvolved sovereign country on the basis of trumped-up evidence. Much of the response was counterproductive, as George W. Bush finally admitted in May 2006. At the same time, the president expressed regret at his own choice of language—including the memorable “wanted dead or alive”—in the immediate aftermath of the attacks on the World Trade Center and the Pentagon.
In June 2006, almost five years after 9/11, the Canadian police and intelligence services arrested seventeen men and youths in Toronto who they alleged were conspiring to commit terrorist acts. In the public sphere, the response was a strange mix of American hysteria and British coolness. Right-wing commentators immediately began chortling “we told you so.” For them, the arrests were proof positive that radical Islamic terrorists were targeting all Western democracies, a situation that demanded unwavering support for U.S. foreign policy, stronger anti-terrorism laws and tighter security, including much closer scrutiny of Canadian Muslims. The following excerpt from a National Post column by Andrew Coyne is typical of what many said and wrote that week:
The Canadian Security and Intelligence Service currently has on its watchlist at least 50 other terrorist cells in Canada, similar to the one alleged in the present case: young Muslim men who subscribe to an extreme interpretation of Islam, coupled with an even more extreme agenda of apocalyptic mayhem. For every cell the security forces know about, they estimate there are another 10 they do not know about.
Everyone is talking about how this case is a “wake-up call.” But if we are led to believe that, because this particular (alleged) attack was thwarted, the danger is past—or that it is possible to prevent all future attacks—we are little further ahead. The chances that the authorities can detect every last one of these plots in time to defuse them are remote. We can “harden the targets,” we can lengthen the odds, but the likelihood approaches certainty that some time, somewhere, one of them will break through.
What then? Rather ask: What now? We are about to undergo one of the greatest tests our society has yet had to endure— that is, whether we can remain a coherent society, different social groups sheltering under the same broad set of beliefs, in the face of an existential threat originating from within one particular group.
For a week or so, it seemed as if I were living in the United States again, with Canadian media outlets having morphed into imitations of Fox News, the Washington Times and freerepublic.com. Fortunately, the Canadian people exhibited considerably more restraint. In one poll conducted by Ipsos-Reid for CanWest Global just ten days after the arrests, 66 per cent of Canadians said they lacked sufficient information to tell whether the suspects were guilty or not. It seemed as if, having watched Americans overreact to 9/11, most Canadians were not about to jump to conclusions. The foiled plot was disturbing, but there was as much reason to feel secure as there was to worry; after all, the police and intelligence services had done their jobs. Prime Minister Stephen Harper, who undoubtedly reads the polls, wisely chose not to exploit the arrests as the basis for a major speech or policy change.
There is no disputing that terrorism—commonly defined as any action intended to cause death or serious injury to civilians in order to intimidate a population or compel its government to act—is a bad thing. The police and intelligence services deserve our thanks for having identified and arrested the alleged plotters before they posed a danger to anyone. Moreover, Coyne is correct to assert that Canada will likely suffer a terrorist attack at some point. Eighty-eight Australians died in October 2002 when a car bomb blew up outside a nightclub in Bali, Indonesia. Nearly two hundred Spaniards died in March 2004 when bombs exploded on four commuter trains in Madrid. The attacks on the London Underground followed one year later. It would be surprising if Australian, Spanish and British involvement in the U.S.-led invasion of Iraq was not a factor contributing to the attacks. Today, with more than two thousand troops engaged in a war in Afghanistan, Canada is almost certainly on a target list somewhere.
Yet terrorism is not new to Canadians. In 1970, Pierre Trudeau invoked the War Measures Act to counter what he called “an armed, revolutionary movement that is bent on destroying the very basis of our freedom.” Fortunately, the threat was not as serious as the prime minister thought: only one person died during the October Crisis and most of the nearly 500 people detained were soon released without charge.
In June 1985, Air India Flight 182 was blown out of the sky over the Irish Sea. The bomb had been placed aboard in Vancouver and 280 of the 329 people who died were Canadian citizens. The October Crisis and the Air India bombing demonstrate that terrorism can arise from internal grievances or from grievances carried here by immigrants who feel no particular animosity towards Canada or other Canadians. Islamic fundamentalists do not have a monopoly on terrorism. And eventually, like all previous waves of terrorism, the current wave of Islamic terrorism will gradually fade away.
Most Canadians know this. Millions of us have roots in countries that have been subject to terrorist attacks. Vancouver’s Punjabi community, which bore the brunt of the Air India bombing, was already scarred by terrorism in Kashmir. Toronto’s Singhalese and Tamil communities are haunted by the continuing violence in Sri Lanka. Montreal’s Jewish and Arab communities cringe every time a bomb explodes in the Middle East. Just about every immigrant community in Canada has been marked by terrorism in some way. This sad heritage does work to Canada’s benefit in one respect: thanks to one of the highest rates of immigration in the world, this country has acquired a built-in sense of perspective and resilience concerning terrorism.
Those of us who call for cool heads are not naive. In addition to my time in Britain, I have visited Egypt and Israel during periods when both countries were subject to terrorist attacks. I taught in the United States during September 11, 2001, and its aftermath. An aunt and uncle of mine live five kilometres from the Bali nightclub where the October 2002 bombing occurred. Another of my aunts lost her boss, the CEO of the Deutsche Bank, when the Red Army Faction blew up his car outside Frankfurt, Germany, in 1989. Many other Canadians have more painful stories to tell.
Keeping calm after the Toronto arrests was made easier by the fact that the putative terrorists were amateurs. They had been tracked for two years and only acquired a (supposed) capacity to act when the police sold them bogus ammonium nitrate. Their apparent leader spoke openly about his violent intent, in one instance to a member of Parliament. The Hells Angels are much more professional and probably more dangerous.
Some commentators tried to provoke fear by focussing on reports that the conspirators had been inspired to violence by Web sites that celebrate the activities and ideology of Al-Qaeda. But why should this come as a surprise? Violence is constantly celebrated in our society—in music and movies, on TV and on countless Web sites, most of which are not Islamic. Violent acts are committed every day in our schools, streets and homes, usually by non-Muslims. Any focus on Islamic Web sites is unfair, even dangerously selective.
More recently, there have been calls for racial profiling to facilitate the detection of terrorists. At Duke Law School, my African American students called it “driving while black.” Statistically, a black man in an expensive car is more likely to have committed a crime than a white man in a similar car, mostly because of the substantial economic disparities that still exist between those groups. And so my students, who had graduated at the top of their classes in some of the United States’ best colleges and already had jobs lined up at prestigious New York and Washington law firms, were regularly pulled over and searched, sometimes at gunpoint.
Racial profiling fails on numerous counts. First, statistics are rarely applied consistently. If we wanted to be statistical about risk, we would save far more lives by prohibiting all young men from driving cars than we would save by racially profiling for terrorist suspects. Indeed, the number of roadway deaths caused by aggressive young male drivers each year greatly exceeds that which has ever been caused by terrorists. Second, racial profiling is unfair to the vast majority of people within the targeted group, who have done absolutely nothing wrong and who may—like my Duke law students—be seriously inconvenienced or even put at risk as a result of being profiled. Third, consider the negative impact that racial profiling has on the members of the group being targeted. Harassment and aggression breed resentment, not co-operation. Someone who feels harassties about a group of young men behaving suspiciously at the local mosque.
Like it or not, some small subset of people in any society will always feel aggrieved. Only a small number will seriously contemplate violence, and even fewer will actually act. Terrorism is part of a timeless phenomenon that can never be eradicated. It can only be reduced and managed. The challenge is to do so without engendering even more discontent.
After 9/11, Canada followed the United States in dramatically increasing funding for border guards, the police, and intelligence services. Those same authorities were given unprecedented powers of surveillance, detention and interrogation, with Canadians paying a significant price in terms of our civil liberties. Yes, Canada may be a safer place as a result, since it is now more likely that we will detect and apprehend any angry and amateurish young men and perhaps women who gather to plot a terrorist attack. But what are the chances of any surveillance system detecting truly professional terrorists? What airline security system can stop eight or ten physically fit young men with martial arts training from taking over a passenger plane without the use of weapons? Above all, what assurance do we have that a security-driven, war-fighting approach to terrorism will actually make the world a safer place?
As the Canadian major general Andrew Leslie said in August 2005: “Every time you kill an angry young man overseas, you’re creating fifteen more who will come after you.” A security-focussed, militarized approach is not necessarily the best way to reduce and manage terrorism. In the past, some countries have addressed the root causes of anger by adopting policies that foster inclusion and understanding, including by providing the right to vote in democratic elections along with laws and procedures that guard against the arbitrary exercise of power by the state. They have developed means of policing and intelligence gathering that are focussed and efficient, that guard against violence without provoking more of it. They have learned—sometimes through a painful process of trial and error—that terrorism succeeds only if societies and governments allow themselves to be terrorized. They have recognized that negotiating with terrorists is often a necessary prelude to a reduction in violence and, eventually, peace. The British successfully negotiated with the IRA, and Israel in the past has repeatedly secured the release of captured soldiers by, again, negotiating.
In this context, a comparison with crime is not out of place. The United States has the death penalty, a huge prison population and much higher rates of violent crime than Canada. Is a process of cause and effect operating here? When we lived in North Carolina, my wife and I were repeatedly struck by the large amounts of money that were evidently being spent on police and prisons—the county jail is the largest and most modern building in downtown Durham—instead of on good public schools and a public health care system.
Some countries have also understood that overreacting to terrorism can itself be dangerous. When we obsess about terrorism, we lose sight of other, perhaps more serious risks. For example, former U.S. vice president Al Gore maintains that climate change is a far greater global threat than terrorism. You might reasonably conclude that the terrorist threat has provided some governments, most notably the Bush administration, with a smokescreen for their failure to address this other, very dangerous phenomenon.
There is no denying that terrorism is a serious problem. But our society faces a plethora of serious and complex problems. A sense of perspective is always required, along with cool heads. Remember, the terrorists win only if we allow ourselves to be terrorized.
So take a deep breath. Exhale. Relax.
THE LAWS OF WAR
The image of a hooded man standing on a box, with electrical wires dangling from his outstretched hands, is seared into our collective memory. It scars the psyche almost as deeply as the image of two skyscrapers collapsing in Manhattan. This is partly because the atrocities at Abu Ghraib were committed by soldiers from an advanced Western democracy that long served as a beacon of hope for the world’s oppressed and abused. And it is partly because the American soldiers involved, and their superiors, should have known better: they were, after all, members of a highly professional military that has long prided itself on adhering to the laws of war.
The laws of war are often referred to as “international humanitarian law,” since these rules are designed to prevent unnecessary suffering during armed conflicts. They are paralleled, in times of peace, by international human rights. And they include the prohibition on the use of chemical or biological weapons, the prohibition on the intentional targeting of civilians and the prohibition on torture and cruel or inhuman treatment or punishment.
For decades, individual Canadians have been at the forefront of efforts to protect human beings during times of both peace and war. In 1948, McGill law professor John Humphrey helped draft the Universal Declaration of Human Rights. In 1956, then foreign minister Lester B. Pearson pioneered the concept of United Nations peacekeeping—and won the Nobel Peace Prize in 1957. In 1994, then lieutenant general Roméo Dallaire served as force commander of the UN peacekeeping mission in Rwanda and strove valiantly to persuade the member states of the UN Security Council to enforce the prohibition on genocide. In the late 1990s, then foreign minister Lloyd Axworthy threw his weight first behind a new multilateral treaty banning anti-personnel landmines and then behind the creation of the permanent International Criminal Court. Today another Canadian, Philippe Kirsch, serves as the first president of that judicial body.
Another Canadian, Louise Arbour, is the UN high commissioner for human rights. She has distinguished herself in that office through a willingness to speak truth to power and, in December 2005, she issued the following public warning: “The absolute ban on torture, a cornerstone of the international human rights edifice, is under attack. The principle we once believed to be unassailable— the inherent right to physical integrity and dignity of the person— is becoming a casualty of the so-called war on terror.”
For decades, Canadian governments took human rights and international humanitarian law seriously. In 1976, Canada was one of the first countries to ratify the Optional Protocol to the International Covenant on Civil and Political Rights. In 1977, Sandra Lovelace, a Maliseet woman from New Brunswick, used the protocol to file a complaint with the UN Human Rights Committee. She alleged that the Canadian government had violated international law when it stripped her of her status and rights under the Indian Act after she married a non-Native man. The Human Rights Committee upheld her complaint, and the Canadian government responded by doing the right thing: amending the Indian Act to make it consistent with international standards. Today, Sandra Lovelace Nicholas sits as a senator in the Canadian Parliament.
In 1993, members of the Canadian Airborne Regiment tortured and killed a teenager during a peacekeeping mission in Somalia. Their actions were violations of international humanitarian law and the Canadian government responded accordingly. Several paratroopers were court martialled for their role in the atrocity; one served five years in jail. And, in a move that signalled just how serious the offences were considered, the entire Canadian Airborne Regiment was disbanded.
Canada also took the protection of civilians seriously when it came to the selection of military targets. During the 1999 Kosovo War, Canadian CF-18 fighter pilots, who train with their American counterparts, were never assigned as wingmen to them. Canada has ratified the First Addition Protocol to the 1949 Geneva Conventions, whereas the United States has not, and for this reason our pilots are subject to more stringent requirements concerning the protection of civilians. Accordingly, in Kosovo they could not be counted on to respond to some threats, such as anti-aircraft fire coming from a school or hospital, in the same way that an American pilot would. Where the American pilot would attack the source of the anti-aircraft fire, the Canadian pilot would—quite properly—turn his plane on its tail and leave.
Unfortunately, there was a discernible change of approach on the part of the Canadian government to these and other rules after September 11, 2001.
In 2002, Canadian soldiers in Afghanistan were ordered by their American commander to lay anti-personnel landmines around their camp. When the Canadians refused—citing our obligations under the 1997 Ottawa Landmines Convention—American soldiers, whose government has not ratified the convention and who are thus not subject to the same restrictions, laid the mines for them. More recently, Canadian forces in Kabul and Kandahar have benefited from the protection provided by anti-personnel landmines laid by Soviet forces during the 1980s. The Canadian government argues that the Landmines Convention has not been violated, since the prohibition on the “use” of anti-personnel mines does not extend to reliance on mines laid by others. As I explain in Chapter 5, this strained interpretation hardly reinforces our claim to be the leading proponent of the total elimination of these viciously indiscriminate devices, which have killed more than one million people over the past three decades.
Yet this compromise on landmines is less serious than the manner in which we have shirked our responsibilities concerning suspected Taliban or Al-Qaeda fighters captured by Canadian soldiers in Afghanistan. For here we have been complicit in the erosion of the prohibition on torture, the very erosion that Louise Arbour condemned.
TRANSFERRING TO TORTURE
In 1998 and 1999, I met dozens of torture victims as I worked with a coalition of London-based human rights groups trying to have former Chilean president Augusto Pinochet extradited from Britain to Spain to face criminal charges. The next year, when I arrived at Duke University, my new secretary was a former special-forces soldier who had been tortured by a Colombian drug cartel; fifteen years later, the scars from cigarette burns were still visible on his arms. More recently, I’ve had the honour of meeting Maher Arar, a Canadian who was wrongfully arrested in the United States in 2002 and forcibly handed over to Syria, where he was tortured while imprisoned for a year without charge.
On each occasion, the first thing that struck me about these torture victims was the deadness in their eyes. Torture—the deliberate infliction of severe pain—is a despicable and inhumane practice. That’s why it is absolutely prohibited by a wide range of treaties. That’s why every civilized country has committed itself to preventing torture and punishing it wherever it’s found. That’s also why, whenever we transfer individuals into the custody of another country, we should do what we can to protect against the possibility of their being tortured after they leave our hands.
Canadian soldiers in Afghanistan took their first prisoners in January 2002 and promptly transferred them to U.S. custody. They handed the men over despite the fact that then U.S. defence secretary Donald Rumsfeld had publicly refused to convene the “status determination tribunals” required by the Third Geneva Convention to investigate whether individuals captured on the battlefield are “prisoners of war,” a legal term referring to a category of prisoners entitled to special treatment. Canada, by choosing to hand over the prisoners in these circumstances, also violated the Third Geneva Convention. But the transfers did not undermine the prohibition on torture, since there was, at that time, no reason to believe that U.S. forces would mistreat the men.
Today we know better. The photographs from Abu Ghraib were only the first pieces of a growing body of evidence indicating that, at best, the U.S. military has failed to educate its soldiers about international humanitarian law. At worst, the revelations— including a series of leaked legal memoranda that seek to justify torture—suggest a policy of law breaking that extended all the way up the chain of command, to Rumsfeld and perhaps the commander-in-chief himself.
It’s in this context that we must assess the announcement, in September 2005, that Canadian soldiers in Afghanistan had again transferred prisoners to U.S. custody. The full scope of the Third Geneva Convention no longer applies to Canada’s operations in Afghanistan, because our soldiers are there with the full consent of the sovereign government in Kabul. But Canada is still bound by a provision, Common Article 3, that applies to armed conflicts that are “not of an international character.” Common Article 3 specifies that a number of acts “are and shall remain absolutely prohibited at any time and in any place whatsoever,” including “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Canada, by transferring prisoners to a foreign military that has recently committed violations of precisely this kind, has been risking complicity in breaches of the Geneva Conventions.
We have also been taking chances with the 1984 Torture Convention, which decrees that “no state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Given what we now know about practices at U.S. military detention centres at Abu Ghraib, Guantanamo Bay Naval Base in Cuba, Bagram Air Base in Afghanistan and elsewhere, the possibility that our prisoners will be tortured in U.S. custody is real. It does not suffice, as the Department of National Defence has argued, that Canada has received assurances from the United States that any detainees received by it will be treated properly. Torturing governments always deny and seek to conceal their actions; what matters is their track record.
Transferring prisoners to Afghan instead of U.S. custody cannot relieve Canada of responsibility, since Kabul may be expected to comply with a U.S. request for a further, onward transfer. Yet this is precisely what Canada has been doing since December 2005, when Chief of the Defence Staff Rick Hillier signed a detainee-transfer “arrangement” with the defence minister of Afghanistan. Under it, Afghanistan promised to treat humanely any individuals received and to allow representatives of the International Committee of the Red Cross (ICRC) to visit the detainee. Yet the Afghan government is hardly a beacon of humanitarian law: according to the UN-funded Afghanistan Research and Evaluation Unit, nineteen of Afghanistan’s newly elected members of Parliament are suspected war criminals. Moreover, the Afghan government is very susceptible to being influenced by the United States, which still has nineteen thousand troops in the country, eight thousand of them operating independently from the NATO–led international security assistance force.
Indeed, the Canada-Afghanistan arrangement explicitly envisages that some prisoners will be transferred onward to the custody of a third country, but it does nothing to guard against that country being one where prisoners are at risk of being tortured or otherwise abused. Amir Attaran of the University of Ottawa has accurately described the document as a “detainee laundering agreement,” for it enables Canada to move its prisoners indirectly into U.S. custody without the scrutiny involved in direct transfers.
The limitations of the Canada-Afghanistan arrangement become even more evident when compared with a Memorandum of Understanding concluded several months earlier between the Netherlands and Afghanistan. That memorandum provides Dutch officials with a right of access to any of their transferred prisoners; the Canadian arrangement does not. The Dutch memorandum provides for a right of access for “relevant human rights institutions within the UN system”; the Canadian arrangement does not. Instead, the Canadian arrangement relies solely on the ICRC, an organization that normally does not tell other countries about any evidence of abuses it discovers. In September 2006, Canadian foreign affairs minister Peter MacKay acknowledged this reality:
In all of its activities, in particular visits to prisoners, the ICRC’s relations with its contacts and detaining authorities are based on a policy of discretion… In cases where the ICRC visits detainees we have transferred to Afghanistan, we are confident the ICRC would advise the Afghan authorities, as the current detaining authorities, if the ICRC had any concerns about a particular detainee or the conditions of detention.
MacKay was careful not to suggest that the ICRC would inform the Canadian authorities.
Amazingly, Canada did not even secure the right—as the Dutch did—to be notified by the Afghan authorities before they send one of our transferred prisoners onwards to a third country.
In February 2007, the Globe and Mail reported allegations that at least one Afghan was beaten while in the custody of Canadian soldiers. The allegations are serious—and must be subject to a rigorous criminal investigation—but just as serious was the revelation that the Canadian Forces cannot account for the location or condition of the forty prisoners they captured prior to April 2006 or the several dozen taken since then. All we know is what General Hillier has said: “We hand them over to either the Afghan national police or the Afghan national army. We’re trying to help build a country; you’ve got to help build their rule of law, a justice system, which includes a prison system.”
But surely the fact that Afghanistan is a broken-down country is a reason for caution rather than blind trust. Afghanistan’s military, police, judicial and correctional institutions are undergoing a far-reaching transformation that is far from complete. Corruption and human rights violations remain commonplace. By relying solely on the ICRC to oversee transferred prisoners, and by failing to secure a right of notification as to any change in their location or condition, the Canadian government is washing its hands of them in a situation where their human rights—and our obligations—are clearly at risk.
We also need to worry about our soldiers, who have been placed at legal risk as a result of the transfer arrangement. The Torture Convention requires countries to “ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” The convention thus affirms a basic principle of criminal law: those who aid or abet a crime are criminals themselves. Complicity in torture is subject to the universal jurisdiction of national courts, making it possible for a Canadian soldier to be tried in the courts of any other country for transferring a prisoner into a situation where there is an apparent risk of such abuse. Indeed, in some circumstances, complicity in torture could even be considered a war crime subject to the Rome Statute of the International Criminal Court. Canada ratified the Rome Statute in 2000; as a result, any Canadian solider who aids, abets or otherwise assists in torture could end up being prosecuted in The Hague.
The situation is clearly unacceptable. So, where do we go from here? The Canada-Afghanistan arrangement should be renegotiated to include all the protections provided in the Dutch memorandum. As the Dutch are demonstrating in southern Afghanistan today, these protections have no detrimental operational consequences. Nor is there any reason to believe that the Afghan authorities would object to a renegotiation, since they have already agreed to the terms of the Dutch memorandum. Nor, indeed, would these protections interfere with efforts to improve the Afghan police, prison and judicial systems; if anything, they are likely to enhance them. And there is one more protection that we should insist on including: a right of veto over any proposed transfer to a third country. For without a right of veto, the right to be notified would be deprived of any real effect.
In November 2005, then defence minister Bill Graham gave a lecture to one of my classes at the University of British Columbia. The former professor of international law told the students that Canada had no choice but to transfer prisoners to U.S. or Afghan custody, because we lacked the facilities to hold them and building such facilities would be impracticable. One of the students challenged this assertion, arguing that expediency is no excuse for violating fundamental human rights. Indeed, if compliance required building our own detention facilities, so be it; as the eighth-largest economy in the world, this is something we could afford.
Finally, there is the additional issue of how our actions are perceived in Afghanistan, not just by the local authorities, but by ordinary people. In that increasingly hostile region, those who risk complicity in torture risk losing the most important battle—the battle for hearts and minds.
EXTRAORDI NARY RENDITION
Just six days after the September 2001 terrorist attacks on New York and Washington, George W. Bush signed a “presidential finding” that provided the Central Intelligence Agency (CIA) with broad authorization to disrupt terrorist activity, including by killing, capturing or detaining Al-Qaeda members anywhere in the world. On this basis, the CIA began secretly transferring suspects, either to the intelligence services of countries notorious for torture or to clandestine prisons located outside the United States and, therefore, beyond the reach—or at least the scrutiny—of U.S. courts.
This practice, which the Americans refer to as “extraordinary rendition,” has directly affected a number of Canadians. In September 2002, Maher Arar—a Canadian who is also Syrian by virtue of that country’s refusal to accept renunciations of citizenship—was arrested while transiting through New York’s JFK Airport. After twelve days of questioning, he was taken to Syria, where he was imprisoned.
Stephen Toope, an independent fact-finder appointed by a Canadian judicial inquiry, determined conclusively that Arar was tortured while in Syrian custody, including by being beaten on the palms and wrists with an electrical cable and being confined for ten months to a cell some two metres long, one metre wide and slightly more than two metres high. Toope concluded:
The effects of that experience, and of consequent events and experiences in Canada, have been profoundly negative for Mr. Arar and his family. Although there have been few lasting physical effects, Mr. Arar’s psychological state was seriously damaged and he remains fragile. His relationships with members of his immediate family have been significantly impaired. Economically, the family has been devastated.
Toope then added, with reference to Arar’s battle to clear his name: “Mr. Arar strikes me as a person with what one might describe as moral courage.”
For more than three months, the Canadian government resisted pressure to establish an inquiry into possible involvement by the RCMP or Canadian Security Intelligence Service in the rendition and torture of Maher Arar. However, we now know some of what happened.
In September 2004, an internal RCMP investigation revealed that at least one of its officers learned of U.S. plans to deport Arar before Arar was flown to the Middle East but did not immediately convey this information to other officers. The same investigation concluded that, after Arar’s arrest, RCMP officers decided not to travel to New York City to question him, because no RCMP aircraft was available and commercial flights were supposedly too expensive.
Finally, in testimony before the commission of inquiry that eventually was established, the senior officer in the investigation into Arar said the RCMP suspected that he was being tortured in Syria but nevertheless decided to share with the Syrians dubious information the force had about him.
In September 2006, the inquiry commissioner, Justice Dennis O’Connor, concluded that the decision to remove Arar to Syria was “very likely” based on inaccurate and misleading information from the RCMP. He also refuted any doubts about Arar’s innocence: “I am able to say categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constituted a threat to the security of Canada.”
Along with the renditions, the United States was, and maybe still is, operating clandestine prisons. In November 2005, the Washington Post reported that the CIA ran a series of covert prisons, so-called black sites, in a number of foreign countries, including in Eastern Europe. According to the Post, “Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.” The parallels to these secret prisons—such as the Soviet Gulag and Latin American “disappearances”—are obvious, as is their international illegality. Secret prisons contravene the prohibition on arbitrary arrest or detention set out in the Universal Declaration of Human Rights and numerous multilateral treaties. In September 2006, after months of denials, George W. Bush finally admitted the existence of the secret prisons—and declared that they had been closed.
At the same time, the Post reported that “CIA interrogators in the overseas sites are permitted to use the CIA’s approved ‘Enhanced Interrogation Techniques,’ some of which are prohibited by the U.N. convention [on torture] and by U.S. military law.” The techniques include “waterboarding,” whereby a detainee is repeatedly submerged under water and made to believe that he or she will be drowned. In October 2006, a radio interviewer asked U.S. vice president Dick Cheney: “Would you agree a dunk in water is a no-brainer if it can save lives?” The vice president replied, “Well, it’s a no-brainer for me.”
Unfortunately, it appears that there has been a degree of Canadian complicity in the practice of extraordinary rendition, above and beyond the Arar affair. In December 2005, it was reported that seven airplanes linked to the CIA had recently used Canadian airports more than fifty-five times, including for refuelling stops in Newfoundland and Nunavut. Many more CIA flights have presumably crossed Canadian airspace, given that the shortest flight lines from the United States to Europe or the Middle East cross this country’s vast territory.
When asked about the matter, then prime minister Paul Martin said that he had “checked with the deputy prime minister, checked with the officials in charge, and there are absolutely no indications that anything of that kind is occurring.” For her part, the then deputy prime minister, Anne McLellan, said she was investigating the questionable flights. But she also asked for patience: “We are now in the process of following up on what we know about any of those, but as you can imagine, 55, it takes time to determine whether there’s anything unusual in relation to any of those named flights.”
It is likely that Martin and McLellan were simply trying to punt an embarrassing story past the federal election campaign that was then taking place. But it is also possible that they or their officials knew—or chose not to know—that the CIA flights were occurring, and that individuals on board were being involuntarily transferred to secret prisons or foreign intelligence agencies notorious for torture. If so, the politicians’ evasive language could be rooted in concern for their personal responsibility, not just under Canadian law, but also in foreign courts or even the International Criminal Court. For such actions would, again, constitute complicity in torture. Now that Martin and McLellan have ceased to be ministers and no longer benefit from the immunities attached to high office, they might think about avoiding foreign travel, at least to human-rights-respecting states.
I do not want to overstate the legal situation; these are only possibilities. At the same time, it is disturbing that such possibilities have been allowed to arise. There were—and still are—two simple and entirely appropriate responses to the U.S. practice of using extraordinary rendition and secret prisons: refusing to share intelligence that might be used for such purposes, and denying CIA planes permission to use Canadian airports or airspace until the matter has been properly investigated and resolved.
STANDING UP FOR HUMAN RIGHTS
There is no question that Canadians abhor torture. The deliberate infliction of severe pain and suffering is a particularly heinous crime. Indeed, the prohibition on torture, along with other fundamental human rights and rules of international humanitarian law, was established by a generation that knew all about pain and suffering. They had lived through two world wars, the rise and fall of fascism in Germany, Italy and Japan, and the Holocaust. Their commitment to preventing human suffering finds expression in the first three stanzas of the UN Charter of 1945:
We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained…
Today, one of the key questions facing Canadians concerns whether we still stand by that commitment, at a time when our superpower neighbour has been torturing people and outsourcing torture to other states. Was our commitment to prevent human suffering meant only for good times, not for those times when the going gets rough?
In December 2004, George W. Bush visited Ottawa and Halifax. Shortly afterwards, I had the opportunity to chat with a senior Canadian bureaucrat who had been involved in the trip.
“In his private meetings with the president, did Paul Martin raise the issue of torture and extraordinary rendition?” I asked.
“Are you kidding?” my contact laughed. “With 86 per cent of our exports going to the United States?”
I had heard the argument before, usually coupled with an assertion that the Americans will do what they want regardless of what we say. In the upper levels of the federal bureaucracy, it has become fashionable to be “realistic” about Canada’s inferiority vis-à-vis the United States. Yet fashion can get in the way of careful thinking—thinking that constantly re-evaluates its assumptions and analyses recent developments, such as Canada’s decision to stay out of the 2003 Iraq War. Personally, I am not convinced that Canada has much to lose by opposing those U.S. policies that diverge significantly from international opinion and violate international law. Indeed, we might have something to gain.
Canada is an influential country. Our influence is augmented by our middle-power tradition of multilateral leadership, which has always included promoting peace, defending human rights and championing international humanitarian law. Moreover, when we stand up to the United States, we rarely incur a penalty. We only gained by staying out of the Iraq War: saving Canadian lives, avoiding the ensuing quagmire and signalling to other countries that Canada remains an independent country—open, among other things, to its own diplomatic and trading relations. We might even have gained some kudos in Washington—a city dominated by bare-knuckle politics rather than quiet, Canadian-style consensus—by demonstrating that Canada is a grown-up country, that our support must be earned and never assumed.
When it comes to fundamental human protections, the recent pattern of law breaking by the United States creates an opportunity for Canada. For decades, Americans provided global leadership with regard to human rights and international humanitarian law. Since September 2001, they have abdicated that role, leaving space for an experienced, well-minded middle power such as Canada. But if we are to lead the way on this or any other international issue, it is essential that we remain on our best behaviour and not let standards slip in the way they have next door.
Finally, Canada’s record on human rights and international humanitarian law matters because we are a democracy. If our soldiers and politicians are complicit in torture, we, in a sense, are all torturers. Human rights require constant vigilance to defend against those who seek to violate or undermine them, or who simply take the easy way out by acquiescing to violations committed by others. Democracy, the most reliable mechanism for maintaining individual human rights, and the very essence of our society, also requires constant defending. At root, our respect for human rights and international humanitarian law should not be based on our relationship with the United States. It should be determined by who we—as Canadians—are, and what we intend to be.
