Exceptional circumstances

As I reported in September, the Harper government quietly directed CSIS in December 2010 that it could make use of information obtained through torture—this after publicly renouncing a CSIS lawyer’s public testimony that such information might be used. Jim Bronskill has now obtained the full text of the ministerial directive issued by Vic Toews.

The latest directive says in “exceptional circumstances” where there is a threat to human life or public safety, urgency may require CSIS 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 may not always be possible to determine how a foreign agency obtained the information, and 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 directive says the final decision to investigate and analyze information that may have been obtained by methods condemned by the Canadian government falls to the CSIS director or his deputy director for operations — a decision to be made “in accordance with Canada’s legal obligations.” Finally, it says the minister is to be notified “as appropriate” of a decision to use such information.




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Exceptional circumstances

  1. Seriously, does anyone actually think that Harper or Toews would have the slightest reservation about using torture evidence if the men in the uniforms who they so adore say such evidence might potentially be even remotely useful?

    • I don’t think they’d even need useful evidence.

    • Yes, if the detainee finally broke down and confessed:

      “Harper’s a commie!

      “The truth must be protected by a bodyguard of lies” –Winston Churchill.

  2. I  wish this was the lowest that Canada will ever sink to….but I doubt it.

    • “You won’t recognize Canada when I’m through with it”
      – Steven Harper, 1997

      • I have a strong suspicion that there won’t BE a Canada when Harper is done.

  3. “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.”

    Where is Tony Adams when you need him?  Isn’t it in this kind of situation that he gets out his Trudeau-the-Fischist quote about bleeding hearts? 

  4. From a practical point of view, I do wonder if, for example, the CIA got some information from someone that they may or may not have water boarded to get it and offered to share it with CSIS, how do we expect CSIS to reply?

    1. “Thanks for the info! Here’s ours.”
    2. “Thanks! We don’t think this is valuable because you may have tortured for it and that doesn’t give accurate results, but we’ll accept it and file it under advisement. Here’s ours.”
    3. “I don’t want that information, you torture for information. You can’t have ours either.”
    4. “Before we take this information, did you torture someone for it? If so, we don’t want it.”

    I can understand the ethical implications and all that, but I just don’t see how that will operate in a framework like that.

    • I agree.  In the type of “extraordinary circumstances” envisioned, do we want our intelligence service pinning down the terrorists, or pinning down the source of information?  Because it is urgent, time is of the essence, and we can’t be sure what Kiefer Sutherland was up to without our seeing.

      That said, how do these people end up on No Fly lists, again?

    • Garbage in; garbage out!

      Even the practical pov is tainted. In the Arar case the mounties passed erroneous info to the US. By not explictly ruling this out we may be helping to facilitate a market for the revolting trade.
      Really the exceptional circumstances are so damn rare as to constitute nothing more then a rationalization…a neo cons wet dream; but some other poor buggers waking nightmare. 
      The guarantees the info will not be misused for politcal purposes or even be accurate out weigh almost any real world likelihood of stopping a terrorist event from occuring and saving lives.
      I’ve yet to hear one convincing argument from one proponent of torture is terribel but it has saved lives too! Instead we have nothing concrete, just rhetoric from such balanced minds as those of Coulter and Cheney. Meanwhile there is evidence out there that traditional methods of interrogation do work, has saved lives, and continues to do so.

      • By not explicting ruling this out we may be helping to facilitate a market for the revolting trade.

        ***

        In fact, we are so far gone in the first world that the issue isn’t even gee, if we don’t accept torture evidence other countries will just go on doing it, it’s sending people to other countries so they can be tortured to get the info back to us.  

  5. These are not Christians who use ‘state torture’. This is not in the Bible.

    • Lots of things so-called ‘christians’ do aren’t in the Bible.

      War for example.

      • Lust for money seems to be approved these days.

        • Yeah…and you can’t serve both God and mammon. Americans are tearing themselves apart trying to do that.  I had hoped we wouldn’t follow suit.

  6. 1.”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…”

    2.”The directive says the final decision to investigate and analyze information that may have been obtained by methods condemned by the Canadian government falls to the CSIS director or his deputy director for operations — a decision to be made “in accordance with Canada’s legal obligations.” Finally, it says the minister is to be notified “as appropriate” of a decision to use such information.”

    Don’t these two directives more or less contradict one another? Is the final decision the head of CISIS or the ministers? To me it reads like artful political interference.Either that or this is an attempt to head off a reluctance on the part of CSIS to play along at all? Bringing down the hammer and passing the buck at the same time.
    Surely under the old rules CSIS would have made the final determination if the danger was acute enough to flout an existing ban on such info, which would have remained within the hands of the pros even though i find the whole thing disgusting.
    Even the drafters of this garbage – because garbage it is, both rejecting and mandating responsibility at one and the same time – have the grace to acknowledge how rare this circumstance might be. Yet here we have the perfect political out -” oh no, it’s their call, didn’t you read the directives”?

    There are enough qualifiers and weasel words here to delay a claimants appeal for justice for a very long time …just when is “appropriate” to notify the minister? When it looks like a political winner…bbbbbut the minister also wrote directive #1 too! 

  7. I see nothing wrong with this. Does anybody have a practical critique of the policy, or something like an alternative?

    • The reason we gave up torture in the first place….back in the Middle Ages or so….is because it doesn’t work.

      People will confess to anything under torture….whatever you want to hear.

      • Also, the use of torture provides a rationalization for the enemy to resort to same, putting our own agents and combatants at risk.

        • Yup, not torturing protects our own people.

      • Who is this “we” you refer to? And I’ll pose my original question again. What alternative are you proposing?

        • Cons always have trouble with that word ‘we’.

          Indicative of their mind-set I think.

          Who tortured in the middle ages?  Govt.

          Who is torturing now? Govt

          And in this particular case….the west.

          Western govts represent us.

          Us….we.

          The alternative to torturing is….NOT torturing.

          We didn’t do it in WWII….Washington forbade it in 1776

          NOT torturing is the standard.

          • First you state “The reason we gave up torture in the first place”, now you’re saying we (our governments) are torturing people. Which is it?

          • Is English your second language?  You seem to be having trouble with tenses.

            If you need official dates as a timeline, we signed the international law on torture in 1948.

            Abu Ghraib came to light in 2004.

        • Gee, I dunno, how about good old fashioned investigative skills?

          • Sheesh. Obviously. Nobody’s suggesting that if the Saudi’s torture some guy and he mentions a Canadians name that we lock him up and throw away the key without any sort of trial. You take that information with a grain of salt, and investigate. It’s simply suicidal to completely ignore that information.

          • Really! You know that for sure do you? That we haven’t locked up anyone without first verifying the source of info and then giving the benefit of the doubt to the accused. Because it seems to me there have already been people locked up on that basis, with almost no way of verifying the facts since it is all carried out in secret –  the defendent himself and his counsel not even being allowed to know who accused him, leave alone where the info came from.
            Do you know who makes those judgements on our behalf, since the defendant’s counsel can’t cross examine anyone or question evidence?
            Perhaps you don’t mind CSIS or the minister making that determination? You’re awfully trusting of govt all of a sudden.

          • Abdelrazik was  persona non grata for several years with flimsy circular information. He couldn’t fly, couldn’t work, couldn’t own property or have a bank account, all without a conviction and no way to defend himself or clear his name. What about complicity in the torture of Arar and the others? Why would we trust CSIS to act with discretion with that track record?

        • The alternative is to put Harper DIRECTLY on the rack, and cut out the middleman.

    • Well, it could end up with intel that would send Dear Leader to jail.

      I mean, we can’t very well waterboard his defense minister, can we?

      Or can we?

  8. I’m sorry but I agree with the government on this.  So CSIS gets information that they KNOW comes from torture that a bus will blow up in Vancouver tomorrow, they should ignore it is what you are saying.  If they get information that a bomb will go off in the West Edmonton Mall tomorrow, they should ignore it.  What about a nuclear bomb in Toronto? Should they still ignore it?  When does it become okay to use the information.  Personally I would rather have them be safe than sorry.  The information may be made up but they also may have broken a fanatic who knew of an attack.

    • Those who can make you believe absurdities can make you commit atrocities. -Voltaire

      • So lets backpeddle 10.5 years.  If they found out the names of all the terrorists from 9/11 and the date and intended targets from a country that uses torture you would want them to ignore it rather than pass that information off to the U.S. and potentially save over 3000 lives?

        • As you may recall,  Bush ignored a brief entitled ‘Osama bin Laden determined to attack in the US’

          Information that didn’t come from torture.

          • Don’t bother. I think you’re talking to the minister. Noone but him or a die hard fan of Hollywood’s idiotic shows believes in such fantasy scenarios anymore.

    • Practically speaking, the scenarios you describe are exactly the sort of instance where torture information just isn’t valuable.  Even intelligence specialists admit it’s only valuable when corroborating existing information and with a lengthy investigative process. 

      Quite frankly the “we need to beat this guy to near death or a billion people will die in 20 minutes” scenario just can’t yield good information. 

      • So Saudi intelligence raids a bomb factory, tortures the guy for information, he says he sent a bomb to Canada. The Saudi’s call up CSIS to inform them, and you’d actually want CSIS to disregard that information completely?

        Obviously CSIS or the RCMP would investigate and find out if it’s true or not.

        • I want Saudi Arabia to stop torturing people and us to stop condoning it in order to increase the reliability of the speculative hypothetical you envision.

          • I’d like the Saudi’s to stop torturing people also, but I certainly don’t see or hear anybody in the government “condoning” it.

          • It’s possible you are right re: Saudi Arabia, but certainly extraordinary rendition with the hopes of getting others to torture for us is an ugly and extant phenomenon. 

          • I don’t think he’s right about the Saudi’s at all. It’s not like we just talking about keeping an eye on someone – which is of course sensible and reasonable What has happened is that real people have been arrested, sent away to be tortured  and held for long periods of time[ this may happen more frequently if the anti terrorism laws are brought back] without true due process. Why? Because it is almost impossible to verify torture sourced info once it is out there.And almost impossible to ignore the nasty consequences once it is – what if they’re right?
             What does Rick thinks happens? CSIS picks up the ph and politely asks the Saudis to open up their records for us..”.oh yes, thankyou very much. Will you be sending one of those nice colourful mounties over…tell him to bring his horse and his funny hat.”
            This is really about risk management. And these tories are all for the burden of the proof resting on the shoulders of the “guilty” and all the risk too for that matter. 

          • YOu also may very well be right kcm2.  I just couldn’t off the top of my head remember reports of it happening specifically in Saudi Arabia, so I gave him the benefit of the doubt.  I would not be surprised to find out there is torture going in and we’re happily looking the other way about it. 

        • Yes, they really should disregard that information. First, because it’s probably false, and we have limited resources.

          Second, because if it becomes policy that it’s okay to use that information, then it becomes tempting to send some guy, let’s say his name is Arar or something, over to them to deal with because we don’t want to get our hands dirty, but we’re still willing to have the deeds done to get us information.

          If the policy is simply, “we don’t give credence to information obtained under torture” there’s no reason for our own people to bother sending someone to the folks who use that means of getting information.

          • Last point very good.

    • The problem with this is you assume we have infinite resources to go wild-goosechasing after every story somebody comes up with while under torture in an attempt to get out of it.

      The problem isn’t that we don’t want to use true information if it was obtained by torture, the problem is we simply can’t afford to be using false information, which if it was obtained by torture there’s a high chance of it being.

      And the secondary problem, if we use information obtained by torture, it becomes tempting for our own people to just ship folks over to those who are willing to use those methods.

    • I really don’t think Mr. Harper plans to blow up a bus in Vancouver.

      He doesn’t like Vancouver.

  9. That first directive is simply based on a canard. Those exceptional circumstances don’t exist, or if they do it’s so rare as to make the directive useless…the torture info is simply unverifiable. What this in effect does is rule that where any threat to life and public safety exists all info should be shared regardless of source. But doesn’t just about any  terrorist threat fall within those parameters? Even if they don’t surely it mandates action be taken against anyone who meets those criteria. IOWs if there’s some lurid torture sourced crap out there about anyone and that meets the criteria of being a threat to public safety action must be taken; credence must be given to even the wildest hyperpole.
    They’re removing the discretion of the experts, the spooks, the anti terrorist pros…where have i heard that before?
    The more i think about it the more i wonder if this isn’t politcal interference in an orgainization that may be rightlfully resisting any imposition of such loony conspiracy theorist bunkum.

    • In fairness the directive does say “may require”, not must…so my bad.

      I still think the thinking is wonky. Even putting the best govt spin on it you have to believe that since there may be no time to find out if the info was torture sourced, much less reliable, you must now define what constitutes a threat to public safety. The directive claims this would only occur under “exceptional circumstance”; but is that really the case? Aren’t, shouldn’t, pretty well any level of terrorist threat be viewed through the lense of a risk to public safety and therefore require ALL evidence be acted upon or made use of?
      Rereading the directive it occurs that the public risk assessment is probably the only factor we can completely control and rate/define; that’s not to say there should be carte blanche in treating torture info and it’s sources as acceptable.
       Hopefully there is some kind of sanction, legal or otherwise, or means of expressing our displeasure with agencies around the world that are prone to these inhumane and unreliable methods of obtaining intelligence? 

  10. “…under sleep-deprivation, waterboarding, etc. suspect finally broke down and blurted out:

    Stephen Harper is a COMMUNIST!…”

    Well, as Dick Cheney told us, sometimes there’s some valuable intel that can be extracted no other way.

  11. A “rare occasion” that will henceforth occur frequently.

    • Well if my theory about politically motivated interference is even close to being correct, you’d be right. Why ever bother with such a directive unless you think the rules are too lax? 

  12. I’ve always thought that we over-proceduralize this sort of thing.  If there’s a chance that information obtained from torture is going to prevent some catastrophic attack, then Jack Bauer is going to use that information to prevent said attack whether he’s “allowed to” or not, and if that means he goes to jail afterwards he’ll readily accept those consequences.

    These “exceptional circumstances” don’t really exist outside of 24 of course, but if they did, I’d bet that the people on the ground would do what they felt needed to be done, and would be prepared to accept the consequences of that decision.  Nobody needs to be told, imho, “if X is going to save innocent lives, do it”.  If someone believes that X is going to save innocent lives, they’re probably going to do it, and they’re probably going to be just fine with suffering any consequences that result.  So, what are we even talking about?

    • “…Jack Bauer is going to use that information to prevent said attack whether he’s “allowed to” or not, and if that means he goes to jail afterwards he’ll readily accept those consequences.”

      Exactly. If Jack Bauer has lifesaving information obtained through torture then he should use it, save lives and place his trust in the wisdom and mercy of the courts. (And hope he doesn’t run into one of Harper’s mandatory minimums).

      And if Jack Bauer fails to act out of fear of legal consequences and people die as a result, well, he probably isn’t somebody who should be making that judgement call in the first place.

      • What we end up with seems to Jack Bauer tortures people with no realistic hope of obtaining credible evidence, or just for fun, and the bloodthirsty masses praise him like a roman gladiator killing the christians in the arena.

        • We’re all clear that Jack Bauer is a fictional character, right?

          Also, Jack Bauer almost ALWAYS gets credible information when he tortures people.  People don’t cheer him ’cause he tortures people (or, at least, not JUST because he tortures people) they cheer him ’cause he gets results and saves lives.

    • “If there’s a chance that information obtained from torture is going to prevent some catastrophic attack, then Jack Bauer is going to use that information …”

      But that presupposes a bunch of things that probably shouldn’t be presupposed.

      1. How does Jackknow the info is good or reliable?
      2. If he acts and he’s wrong, what then?
      3. Taking action against someone, which may involve rendition to a torture state and all manner of infringements of civil rights without full due process is just wrong.
      4. What Jack or anyone else believes is immaterial. Once you accept belief as the measure of legality or admissability you are already half way down that slippery slope.
      5.This is the very reason we have processes, protocols and contingency measures for such eventualities that require a higher standard then that of one idealized individual’s belief.

      I agree with the gist of your last para so why the need for the new directive?

      • I think that in the context of these bullet points the most important part of my own comment is “These ‘exceptional circumstances’ don’t really exist outside of 24″.

        • Damn, i thought you might say that. :)

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