Andrew Coyne weighs in on the torture debate—I rub my eyes using the phrase “torture debate” in Canada in 2012, but we seem to have one—and criminologist Craig Forcese takes much the same approach as Coyne. Torture is wrong, they argue, but using what is extracted by means of it isn’t, at least not always.
Here is the salient extract from Public Safety Minister Vic Toews’ 2010 directive to CSIS, the source of the current controversy:
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 foreign 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.
Almost needless to say, both Coyne and Forcese invoke the “ticking time bomb” defence as their first line of argument. There appear, however, to be no actual instances of this. Forcese alludes to a book on the subject by Amnesty International legal advisor Yuval Ginbar, Why Not Torture Terrorists? Moral, Practical, and Legal Aspects of the ‘Ticking Time Bomb’ Justification for Torture (Oxford University Press, 2008), and notes: “[H]e acknowledges (however briefly) empirical evidence of cases that appear to satisfy the ticking time bomb’s premises.” [emphasis added]
That’s pretty thin gruel, and in any case Ginbar argues for a blanket legal prohibition.
For his part, Coyne moves quickly away from the “ticking time bomb” scenario, hollowing it out effectively:
The answer to the “ticking time bomb” defence is rather that you could not know such information with certainty — not before you’d actually tortured some poor soul. You might have the wrong guy. He might not talk. He might tell you a pack of lies. There might not be any ticking time bomb. It might have been stopped by other means. There are a hundred possibilities other than the one in which torture, and torture alone, yields the one indispensable piece of information without which the bomb would would, without a doubt, have gone off. To cross as bright a moral line as torture, you need a lot more than a hunch.
But I want to move out of the frame that others appear to have adopted. Thus far I have seen qualified, nuanced arguments defending the use of information derived from torture, and counter-arguments to the effect that torture is immoral and in any case yields unreliable results. I’d prefer to look at the question from a public policy perspective.
I’ll begin with a few basic premises. First, torture will continue to be used around the world, as an instrument of oppression as well as an information-gathering exercise. Secondly, a lot of people will undergo unimaginable pain when they have no information to give and are innocent of any crime. Third, considerable unreliable intel will be obtained. Fourth, some of it may be sound, and its use could save lives. Fifth, and here’s the important one, information of that nature is likely to be acted upon regardless of official directives or legal restrictions.
The issue is not whether torture works, or whether we should or shouldn’t act upon life-saving information, however it comes to us. Scrounging for hypotheticals, Coyne, Forcese and others miss the point.
The question is whether any of this should be enshrined in law, official directives or public policy. And I think the question answers itself—in the negative.
It must be said that Forcese and Coyne do their share of equivocating while haring down the false trail of trying to define precise circumstances in which information obtained by torture could be used.
Forcese: “[T]o be clear, we are not talking here about Canada aiding and abetting, inducing or facilitating torture — the discussion is about passive consumption.”
Coyne: “To be clear, the general policy that Canadian security agents are, in the ordinary pursuit of their duties, forbidden to knowingly use evidence obtained by torture remains in effect.”
In fact, none of the above is clear.
Even “passive consumption,” of course, can feed the torture market—by analogy, that’s why we have laws against the possession of child pornography. But Toews’ directive does not refer to “passive consumption”—it allows, in fact, for considerably more than that. It offers retroactive cover for CSIS when it provided the Syrian secret police with questions to ask Maher Arar, and when it actually took part in some of the interrogations of Abousfian Abdelrazik—both Canadian citizens, not that it matters—or when it landed three more Canadians, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, in Syrian and Egyptian torture-dungeons.
“Exceptional circumstances” could be invoked to justify all such activities. Keep Toews’ words in mind: those “exceptional circumstances” “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.” [emphasis added]
“Relevant authorities” is left undefined. We know that harmful misinformation was sent to “relevant authorities” in Syria, Egypt and Sudan, and by now we know the horrific results. Toews himself isn’t speaking of “passive consumption.” Read: “active complicity.”
In any case, trying to define “exceptional circumstances” is a mug’s game. Forcese concedes:
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.
The language of the Ottawa Principles (drafted in 2006 by human rights and terrorism experts in a conference at the University of Ottawa) is unequivocal on torture itself: it should be absolutely banned. Here is what it says about the fruits of torture:
4.3.2 Information, data, or intelligence that has been obtained through torture or cruel, inhuman or degrading treatment or punishment may not be used as a basis for:
(a) the deprivation of liberty; (b) the transfer, through any means, of an individual from the custody of one state to another; (c) the designation of an individual as a person of interest, a security threat or a terrorist or by any other description purporting to link that individual to terrorist activities; or (d) the deprivation of any other internationally protected human right.
Forcese is right: this is far from a blanket prohibition on the use of such information. The problem is that the language is both precise and imprecise. It tells us what it may not be used for, but is silent on what it may be used for. And that allows considerable latitude for “exceptional circumstances” that generate a market for torture. Looked at closely, it’s not much of an improvement over Toews’ “exceptional circumstances.”
Coyne has a slightly different perspective, a more unequivocal one:
[T]o seek instead the comfort of the absolute, declaring that torture can never be justified even if does work, is to leave oneself exposed to the classic “ticking time bomb” defence. If you knew with certainty that by the use of torture you could save thousands of lives, it would be morally obtuse to refuse, and condemn those thousands to death. And let us not pretend in this day and age that such a grotesque scenario is inconceivable. [emphasis added]
This is at some remove from his comforting assurance above that the “general policy” of CSIS remains in effect. Here Coyne is doing nothing less than arguing the case for torture itself, not simply the consumption of its products. Who would decide under what circumstances it would be “morally obtuse to refuse” to use both the information gleaned from torture and the means of gleaning it, as he suggests? Why, if we follow his logic, should Canada even contract it out, as it’s been doing?
But Coyne, like Forcese, seems to back away from the abyss a bit:
It is legitimate to be concerned that Canada’s willingness to use the information they produce would, in effect, create a “demand” for torture (though I rather doubt the supply would dry up in our absence) or indeed open the door to the sort of nod-and-wink outsourcing of brutality we have seen before. That would certainly be a concern if it were generally the practice to use such information, but it cannot be ruled out even in the more circumscribed policy the government has adopted.
Still, unless we are prepared to say that, having received word of a plot to, say, blow up a plane over Montreal tomorrow, we would do nothing with it on the off chance that it might have been obtained through torture, I think we have to live with that possibility.
I agree with him on the last point. But let’s parse the word “justified” in his earlier comment, because that is the nub of the problem.
There are two separable issues here. The first is the moral argument, encrusted with side-issues like the efficacy of torture, and a host of hypothetical situations. The second is whether these nuances should be defined in law or in Ministerial directives.
We can see from the above that the anti-torture moral position, like all moral positions, soon loses its brilliant clarity in a cloud of “what-ifs.” Any one of us can imagine a scenario in which we would be hard-pressed to remain absolutist on the question, including Coyne’s example just given.
The difficulty is to capture these nuances in the language of law or written policy.
We shouldn’t even try.
Law and public policy should stand for what we hold to be right. Painting in broad strokes as language inevitably does, it should be clear and unequivocal. Murder and sexual assault, for example, are acknowledged to be wrong—there are no “except-fors” in the Criminal Code.
In the case of violations of the Criminal Code, however, the “defence of necessity” may apply. Committing a crime unwillingly at gunpoint would be a strong mitigating factor in a trial, for example. But for reasons that I hope are obvious, laws against murder and sexual assault and other crimes cannot themselves benefit from adding a host of exceptions, each lending itself to endless judicial interpretation.
By the same token, prohibitions against torture and active or passive complicity in it should be drafted in absolute terms. We know there might be exceptions, ones that can be morally justified. But each “exceptional” case should be tested on its facts and its merits.
To admit exceptions into the textual fabric of law and public policy is so obviously dangerous and morally compromising that it is no surprise that even Forcese and Coyne indicate their uncomfortable awareness of the pitfalls. As we have seen, innocent Canadians suffered immeasurably due to the malice and incompetence of CSIS. Under the new rules, information extracted by torture in other countries gets a political seal of approval.
If someone uses information extracted by torture, or even, Jack Bauer-like, uses strong-arm methods himself in one of those still-hypothetical “ticking time bomb” cases, and lives are saved as a result, we know that the latter may go a considerable distance in mitigation. But mitigation—based upon an argued justification—there must be. If ever there were a case of a need for strict accountability, this has to be the one.
Once exceptions are formally enshrined in language, the rot has set in. Those exceptions were in a gray area—but are now policy. Toews thinks he knows what “exceptional circumstances” means, and the powers that be in CSIS may think they know what it means. But new exceptions—Forcese’s “creep”—will now take their place in the gray area, possibly to be moved into legitimacy later through wider and wider interpretations of what “exceptional circumstances” might be.
The last thing we need is a Canadian variant of Alan Dershowitz’s “torture warrants,” seemingly more benign but, as Maher Arar and others will tell you, not so much.
“Exceptional circumstances” were Dershowitz’s rationale, as they are Toews’, and Coyne’s, and Forcese’s. More precise language will yield still further interpretation and nuance. Once you build “exceptional circumstances,” however more precisely defined, into formal public policy, the latter will end up being riddled with them.
Was Toews being realistic and even courageous, as Forcese claims? Not at all—rather, he was being foolish in the extreme. Not only did he put this folly in writing, but he left it in a place where ATIP requests would unearth it. The black ops folks in the CIA and Mossad must be shaking their heads. He has succeeded in stripping his own government of the fig-leaf of “plausible deniability,” putting them, ludicrously, in the position of having to defend torture in the House of Commons.
And he has opened a policy window that shouldn’t even exist in a civilized country. One can only imagine what’s going to come crawling through it.
