Let us now ask some uncomfortable questions

Aaron Wherry on the Mellissa Fung release

Mellissa Fung

So if Mellissa Fung has it right, her release came as a result of a “prisoner exchange.” In response to her kidnapping, essentially, the Afghan authorities claimed their own hostages and approached her kidnappers with a trade: you release her, we’ll release yours. We don’t know who was held and then released as part of the deal, but one might assume they weren’t of much danger or guilt if they were subsequently set free.

So. First and foremost, are we all okay with this?

What did the Canadian government and the Prime Minister know of this deal and when did they know it? What did the CBC know and when did they know it? Why was this arrangement not declared as soon as news of her release was announced?

Never minding Afghan laws (or lack thereof) in this regard, is this sort of arrangement legal under Canadian law, as seemingly claimed by the Prime Minister in his first press conference? Does this correspond with current Canadian foreign policy? Do we now negotiate with terrorists? Or is this considered to be beyond the general definition of “negotiation?”

How real is the threat of torture when someone is detained in Afghanistan? Was a threat, implicit or explicit, of torture part of the negotiations? What responsibility does Canada take for the treatment of those detained in this transaction by the Afghan government? What responsibility should Canada take for the treatment of those detained in this transaction by the Afghan government?

(Let’s leave it there. Though if any bit of this was even mildly untoward, then, of course, we are into a whole other round of questions about everything we’ve been doing for the last seven years and how one engages the bad guys without becoming a little like them in the process.)




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Let us now ask some uncomfortable questions

  1. Lots and lots and lots of questions.

    Here are the answers to all of them.

    It’s legal to arrest and detain people as accomplices to a kidnapping.
    It is also legal to drop the charges once the victim is found safely.

    Hope that helps.

  2. Ah, so Allan feels perfectly comfortable being arrested for anything his brother might chance to do, because apparantly being related makes one an accomplice now.

    Allan is also perfectly comfortable if no charges are laid after someone hits him in the face for his ignorant opinions so long as he heals up after.

    Hope that helps.

  3. Allen, your argument doesn’t hang together.

    If one was an accomplice to a kidnapping, I don’t understand why it would be legal to drop charges just because the victim is released. I believe aiding an armed kidnapping is a crime, both in Canada and in Afghanistan, even if the victim is released a month later.

    In Afghanistan, they do release and even pardon people who committed violent crimes. Karzai recently pardoned violent, armed, gang rapists who used rape to keep villagers under control. Karzai pardoned them because the warlord they were working for was more important to him than the villagers. However, publicly pardoning someone (as despicable as it was in this case) is still not the same as simply pretending they never committed a crime.

    If the people were innocent, then they were being held hostage for a reward – the safe return of Fung. If they were not innocent, they should have been charged and those charges should not be a bartering point. If new information arises, the charges might be dropped, but not in exchange for an action. Laws don’t work that way.

    The US has also rescued kidnapped victims. They have done it by launching a military operation which forcibly takes the victim. In that case, the kidnappers and anyone who interferes with the rescue may be arrested, and some may even be hurt in what ensues. That is legal in Canada and in Afghanistan. Of course, the US may also be breaking laws, but the general description of how they rescue the victims does not appear to break any laws.

  4. The legality of this may be somewhat questionable, but pragmatically I am OK with this chain of events.

    My main concern when it comes to negotiating with terrorists is to not do anything that encourages future terrorist behaviour. I’m satisfied that applying some leverage by capturing the kidnappers family and arranging a trade to get a hostage released does not do so.

    Perhaps a military raid didn’t have to be the only way to secure Mellissa Fung’s release. In this case she was released, no innocents were hurt, and kidnappers cannot claim a political victory, thus encouraging further kidnappings. Regardless of what the laws are, when tested against common sense I think this is a good outcome.

    If one was an accomplice to a kidnapping, I don’t understand why it would be legal to drop charges just because the victim is released.

    catherine, isn’t this sort of negotiation pretty much analogous to the plea bargaining that happens in our legal system? Charges are reduced in exchange for information or desired behaviour?

  5. Allen/John G…

    If you’re “arresting” innocent family members (ie. people who have no clue what is going on) and holding them until a kidnapper releases his victim, aren’t you reverting to kidnapping to acheive your goals? Isn’t that reprehensible in and of itself?

    What about the fact that torture is normal when detained by police there? Are you OK with that?

    Then, we go back to the overall question — do the ends always justify the means? Is it OK for Canada to have others torture or kidnap on our behalf?

    Even though you may not support Canada’s position banning kidnapping or torture by the state, do you not think it undermines the position of the Canadian government to try and tell people that “no exchange” was made?

  6. John, plea bargaining is done with the individual who is charged and who has control over their own actions (such as testifying, giving information, etc.) not with a third party. That type of behaviour is more typical of mobs.

  7. “The legality of this may be somewhat questionable, but pragmatically I am OK with this chain of events.”

    Agree with john g. This is a war we are in which means there are no niceties that we should be observing.

    Aaron You have a lot of questions about Government behaviour but little about the person who caused this mess in the first place. I think more questions should be asked about journo behaviour in general and Fung’s behaviour in specific.

    Fung went to a refugee camp unprotected, which is against military policy, and was kidnapped. Other people, and Canada’s foreign policy, were put at risk because of Fung’s actions. Reporters who risk their own life/security, against military advice, should suffer the consequences of their actions and not expect others to save them.

  8. Allen,

    You fail to make the distinction between what is legal and what is right. It would be like defending the sponsorship scandal by saying that “No charges were laid against members of the Liberal Party” implies “The Liberal Party did nothing wrong.”

    I hope you can see that.

    For instance, if we, of the Afghans on our behalf, threatened torture of innocent family members (guilt by association?) I hope you would agree that is wrong, if not illegal.

  9. Scott M,

    Obviously this is a difficult, thorny, ethical question, and one in which we don’t have all the facts. I’ll try to address your points.

    If you’re “arresting” innocent family members (ie. people who have no clue what is going on) and holding them until a kidnapper releases his victim, aren’t you reverting to kidnapping to acheive your goals? Isn’t that reprehensible in and of itself? What about the fact that torture is normal when detained by police there? Are you OK with that?

    Well, given that this kidnapping ring appears to be a family business, it seems unlikely to me that other family members would be in the dark, if not actively involved. The folks on the ground may have had more info implicating them, but maybe not. It seems reasonable to me to detain family members for interrogation at least, if the kidnappers are known to be running a family kidnapping business. But detaining them doesn’t mean keeping them in a cave in the mountains for 28 days, subsisting on cookies and juice either. Let’s not suggest that we are sinking to the level of our opponents.

    And as to the torture question…unfortunately, life is not perfect. Afghanistan is not yet a westernized democracy, and may never be; but in the end we do have to work with them. We can (and probably would) express our desire not to resort to such things as torture, but in the end, these people likely carried out their job without direct oversight by Canadian officials. At this point in the maturity of their government I don’t think it is reasonable to hold them to our standards in the way that they do their jobs. One day I hope we can, but I don’t think that day is today.

    Then, we go back to the overall question — do the ends always justify the means? Is it OK for Canada to have others torture or kidnap on our behalf?

    Always? Of course not…I think you have to look at it on a case by case basis. In this case, if the hostage was released unharmed, no detainees were seriously injured and the kidnappers were not “rewarded” for their kidnapping with anything they didn’t already have, then I’m satisfied that in this case the ends did justify the means.

    Even though you may not support Canada’s position banning kidnapping or torture by the state, do you not think it undermines the position of the Canadian government to try and tell people that “no exchange” was made?

    This is obviously a sensitive topic and an extremely difficult message on so many levels to communicate without it being mangled by the press in one way or another. I think Harper’s summation was oversimplified almost to the point of absurdity, but I understand why it has to be that way and can’t really fault him for that.

  10. If this were to happen in Canada it would certainly be illegal as an arbitrary detention under the Charter, and probably other stuff as well. The police officers involved would definitely lose their jobs. It might even apply to any Canadian law enforcement agency operating abroad. As far as twiddling our thumbs while we let a puppet regime do it, I am less certain.

  11. “Does this correspond with current Canadian foreign policy?”

    I’m pretty sure we would have to have a policy in the first place to come up with an answer. Anyone able to summarize our foreign policy, as it relates to events such as this, in a coherent line or two?

    To be fair, we should acknowledge that specific cases have their own complexities. But the Afghanistan file, in particular, is getting a wee bit too ‘ad hoc’ for my comfort.

  12. I thought our policy was that ‘we don’t negotiate with terrorists’. Now, getting bargaining chips in the form of hostages to secure the release of other hostages seems like negotiation to me.

  13. jwl: “This is a war we are in which means there are no niceties that we should be observing.”

    George W. Bush couldn’t have said it better. But the Geneva Conventions are precisely the sort of niceties we’re legally committed to observe. Even in war!

    john g: “And as to the torture question…unfortunately, life is not perfect.”

    Gosh, that all sounds so reasonable: we regret that our allies commit acts of torture on our behalf, but now is not the time to expect them to respect the most basic of human rights, especially when their acts of torture are so darn handy to us.

    I wonder if you’d be so circumspect if your mother was the one being tortured. Or your daughter.

    Torture is wrong. Always. The very fact that you think it’s something reasonable people can disagree upon makes me sick. And this arms’ length use of torture (remember Meher Arar?) diminishes us as human beings.

  14. Torture is wrong. Always.

    Even when Jack Bauer does it and consequently saves the country from a nuclear explosion?

  15. Olaf: if the legendary “ticking time bomb” scenario ever, ever, ever actually happens in real life, I’ll be happy to publicly eat crow.

    Torture is wrong. Always.

  16. So torture is wrong (always!) unless something unfortunate and unlikely happens? I don’t think you’re using the term “always” properly, but ok.

  17. TJ Cook

    Why should Canada, or the US for that matter, observe the Geneva Conventions when our enemies don’t. I am not a fan of policies where Canadians tie one hand behind their back before they start fighting.

    I am also interested to know if you supporter of Canadian multi-culti outlook because, according to believers, all cultures are equal and there are no good/bad societies.

    Am I diminished as a human being when Afghanis, Taliban, al Qaeda, Pakistanis, Iranians torture their captives or am I diminished only when it has a Canadian angle?

  18. Why should Canada, or the US for that matter, observe the Geneva Conventions when our enemies don’t.

    ‘Cause we’re better then those who would torture. The reason we’re fighting is we believe we have the higher moral ground and that they should bend to our will.

    If we behave as they do, we’ve lost our moral high ground. “Do as I say not as I do” doesn’t work well on the battlefields just like it didn’t in elementary school.

  19. Olaf: the ticking time bomb scenario is a notorious thin-edge-of-the-wedge with a cartoonishly simplistic moral premise. Poke at that scenario a little and it gets ugly fast. Wikipedia has a decent summary: http://en.wikipedia.org/wiki/Ticking_time_bomb_scenario

    jwl: “Why should Canada, or the US for that matter, observe the Geneva Conventions when our enemies don’t.”

    Because we’re better than them. Again, GWB couldn’t have said it better. He actually defended the abuses at Abu Ghraib in terms of “well, our torture was more human that Saddam’s torture”. You’re representing the same argument.

    The multi-culti question: total red herring.

    And yes, you are diminished as a human being when Canada participates in torture, directly or indirectly. Are you diminished whenever someone in Afghanistan tortures without Canada’s knowledge or support? Of course not.

  20. Is there any indication that the detained family members WERE tortured, or all we all speaking hypothetically here?

    I guess the question at the end of the day is…how much are we willing to allow rules to be bent in the name of an innocent person’s life?

    If I were driving someone in a life threatening scenario to the hospital, and was doing 100 km/h in a 60 zone in the middle of the night with no traffic on the road, and ran red lights to get there if there was no oncoming traffic in the other direction, then I’d be breaking the law in the name of saving somebody’s life. And I don’t think anyone out there would bat an eye at that.

    Obviously that’s a contrived example, but the point is that once you accept that the law is not black and white, and that sometimes extenuating circumstances are such that a law needs to be bent or broken for the greater good, then the question devolves to a case by case basis.

    I think if the worst that happened in the release of Mellissa Fung was that some people of questionable innocence were detained and suffered some discomfort, I am OK with that.

  21. Oh, and jwl: from a purely practical perspective, if Canada had/has clean hands with respect to torture, it will discourage torture of our own soldiers when they’re captured in the field.

    A reputation for endorsing torture endangers our soldiers.

    Do you really need this explained to you?

  22. TJ,

    I agree, just giving you a hard time. Scenarios from Prime Time TV usually don’t lend themselves to strong premises from which to make serious moral arguments.

  23. Olaf: You did seem to lack the zealousness of somebody who really, really though Jack Bauer was the solution to our problems :)

    john g: we were discussing the moral implications of torture, not the law. You can argue about where torture starts and stops, but once that line is crossed, it’s morally wrong.

    It’s also clearly illegal. Black and white.

  24. How about the bigger question: why is the Canadian public complacent in the face of Harper’s bald-faced lies?

    He is not our parent ‘protecting’ us from things we shouldn’t know. How about some discussion here about transparency in government (including from the PM)? Somehow the sponsorship scandal doesn’t seem so scandalous in comparison.

  25. As I posted on the other section. I think medals are due all around and we owe a major debt of gratitude to Karzai, the Afghani Intelligence and yes I will say it Harper. Everyone has done an outstanding job on this file and we owe all of them thanks … but not as much as Meliisa owes them and that’s for sure. As to some of the other posts … well must be nice to sit back in our nice comfy canadian chairs living in a peaceful society prnouncing judgement of the behavour of those living in a country where law and order is not a universally held idea at least by the insurgents, kidnapping families (families business!!!) drug lords and the like. Frankly I don’t give a whit about them .. not one … not a tiny little teeny whit … I do care about those who want to live in a civilized society and about Melissa being alive. Because if anyone in power had listened to naysayers and we ended up going for the planned rescue attempt … there just might be a lot of dead people right now – and that’s the only thing here that’s relevant.

  26. “A reputation for endorsing torture endangers our soldiers. Do you really need this explained to you?”

    Yes, I think I do need it explained to me. You seem to be arguing that appearing weak will make our psychopathic enemies more loving/tender towards us while appearing strong would make us more vulnerable. Nothing I have seen in human nature makes me think that knaves, gangsters and murderers respond well to weakness in others.

    If our enemies think that we are going to abide by Geneva Conventions while they kidnap and murder Canadians than we are encouraging that behaviour because they know there will be no consequences.

  27. I buy the moral arguments against torture and agree with them – but here’s a practical one for you jwl.

    If I were being tortured I would probably say anything to get them to stop (hey it’s torture) even if it is a lie. And if I thought the truth would endanger people, I would DEFINITELY lie. Many have argued that torture is actually an unreliable technique for interrogation.

  28. Given Steve Harper’s track record for telling the truth I’ll go with Fung’s version of events. I often wonder what goes on in Harper’s mind when he opens his mouth. He will always outsmart his base-true-believers but most Canadians didn’t vote for him because of trust issues, and what he does just reinforces the belief he should not be trusted.

    Whether you classify Harper’s version as splitting hairs or a bald faced lie does not matter. As Harper reveals the way he thinks when he opens his mouth, his chances of achieving greater respect from Canadians diminish.

    Canadians do not trust him.

  29. The trouble here, jwl, is that you’re picturing the bad guys as cartoonish monsters – not human. “Psychopaths”.

    In fact, committing acts of torture is notoriously difficult and tends to have a devastating psychological impact on the torturer. The military knows that a potential torturer is more likely to torture a captured soldier if that soldier’s country has committed acts of torture – the rationalization is easier. And if captured, the torturer can always point to his enemy’s actions as justification for his own (kind of like you’re doing).

    But to torture someone from a country with clean hands is a bigger psychological hurdle for the torturer, and bears much greater public relations risk if they’re caught since they lacked even the flimsy “they did it too” excuse.

    THAT is the practical reason why long-standing military policy from all first-world nations is that we do not torture. Because it puts our soldiers in danger. The military understands this.

    As for the moral reason: it’s wrong. If our “enemies” do it to us, it’s still wrong. Honestly, have you really descended to GWB’s kindergarten-grade moral outlook? Is the appearance of “strength” really more important to you than your principles?

  30. Here is a real life scenario to think about. My ex, my niece and myslef walking downtown (dangerous part) late at night in Vancouver. 3 youths (very young) follow and then rush ahead of us whipping out weapons threatening me and mine and demanding our money. What followed was an exercise in what I call real life. To place things in context I have been teaching marrial arts for more than 30 years now (a variety of them ranging from western boxing to chinese several schools of kung fu – re: bagua, hsing I, tai chi, siu lum etc etc etc) I put my ex-wife and niece behind me then warned my attackers that they would be wise to leave now and leave fast … however they didn’t … I proceeded to disarm them (2 knives and and a stick) then had what I call a party with them teaching them the finer arts of self defense and how to injure someone quickly (speed is the key) once I removed their weapons and they were laying on the ground no more threat I then went to the main attacker and made very sure he would never again be able to use his right arm to attack anyone again as I focused on breaking his elbow and wrist as he was the main man and the other were obvious flunkies and of little threat and who knows maybe they had a future. However the leader of the pack should not be able to use this attack again and judging by the shape I left him in he won’t be waving a knife around at people again. Now there are people who will think what I did was terrible and beyond what was necessary – but guess what I don’t care and neither did the police when they came and picked up the debris of what I was dealing with the only hurt party deserved it and this is real life.

  31. The scenario posted above has nothing in common with anything discussed previously in the thread.

  32. Unless the poster means that he deliberately went beyond what he knew would be reasonable to subdue his attackers, and therefore engaged in torture. But its still a pretty weak link.

  33. Seriously, Wayne, projecting your fantasies onto this situation is pure comedy.

    There is no parallel.

    Austin

  34. Gee, Wayne. If you were really good you would have disabled them and then rehabbed them through the sheer power of your mind.

  35. Oh it was a form of torture and no fantasy make no mistake about and in point of fact check out the Vancouver Sun 5 years ago I think it was in June 2003 maybe 2002 the story is there as well as some of the trouble I got into by the parents of the injured party. In either event if I were Melissa’s father and heard that she was kidnapped and I found out where her kidnappers father was … I would be on the first plane to Pakistan and indeed If he was responsible I would perform extreme violence on him to get my daughter back to do less would be ridiculous and any who disagree are the people who live in a fantasy world and probably have not experienced real life as yet or never had a family. As to fantasy land statement by Austin well what can I say hopefully you can keep living in yours as to my martial arts experience I have taught police officers, private students and have owned Martial Arts Studios and quite frankly have nothing to prove to you or anyone else.

  36. …except, apparently, restraint and belief in rule of law.

  37. Scott = I did practise restraint I only broke his elbow and wrist I was tempted for a brief moment to go considerably beyond that believe me and as to law and order … well … law and order that’s the name of a television show and is the typical statement of someone who has little experience in real life and who sits back enjoying the comforts of a nice peaceful modern safe country. I hope you never have to actually have to face reality ask Melissa what she thinks I daresay she is quite happy with how things turned out I sure hope you, your wife and niece are never attacked in front of you and you are face with reality somehow I doubt you would be posting such drivel if you had!

  38. Perhaps it is time to put aside the Internet Tough Guy portion of this thread and return to matters which are actually relevant?

  39. yes, like: Amanda Lindhout.

  40. If you have a better way of dealing with violent kidnappers in a lawless land like Afghanistan, let us know what it is.

  41. If you have a better way of dealing with violent kidnappers in a lawless land like Afghanistan, let us know what it is.

    Conscription. All suburban males between 19 and 40.

  42. Develop better relations with all the people there. Support them when they’re having trouble. Be consistent, generous, and fair in providing assistance. Provide significant rewards for information that leads to our forces killing the kidnappers. Provide schools for their children and armed escorts to get their children to school safely. Outsource that kind of activity to local Afghanis ASAP.

    If a kidnapping or something occurs, then the amount of support we provide them lessens/stops as we concentrate on finding the perpetrators. Once found/killed, the support resumes.

    In short, make the area friendly to us and hostile for the kidnappers.

  43. Or we could just go home and leave these people to run their lives & country in whatever way they see fit…however distasteful we might find that to be, it’s their country not ours.

  44. This is all nonsense.

    There was no torture. There has been no allegation of torture. There has been no evidence of torture. Period. Those detained were held as part of an investigation into a family-run kidnapping ring, and probably had real knowledge of the whereabouts and plans of those directly involved. Period. Their detention was in full compliance with Afghan law, which includes a whole series of UN human rights conventions, and a clear ban on torture. Period. In the end, those who were clearly only marginally invovled were released, while people closer to the episode were held for prosecution. Period. It was the Afghan government, not Canada, that made this all happen – it was their investigation and their operation – not Harper’s. Period.

    Don’t you all think this hypothetical run-around is a bit ridiculous? Particularly when it was an Afghan solution to an Afghan problem? Was Canada involved? Probably. Is it our country? No. See, there is this concept we like to call “sovereignty”. So unless you want Canada to start pushing countries around, and acting the 18th century British viceroy, you all better get used to the idea that this kind of thing gets resolved on the terms of the government in power. You are all getting up-in-arms about the possibility of torture, and the possibility of wrong-doing, without knowing (a) what actually happened; and (b) what the laws of the land are in Afghanistan. You want to talk about morales? Lets talk about the morality of projecting our values and our way of doing things on a foreign culture and foreign system of governance. It is their country, not ours. They make the rules, not us. The best we can do is try to ensure that they rule humanely, which in this case they apparently did. So what are you all upset about?

    I think our people did a great job. The outcome did not break Canadian law, did not break Afghan law, and resulted in no fatalities or blood baths. What if there had been a resuce attempt? If they had raided a family compound guns blazing, then those same people who were detained and released would probably be dead.

    You can’t have your cake, and eat it too. So why don’t we all stop armchair quaterbacking for a foreign government? Why don’t we simply be happy that a Canadian citizen (who through her own foolishness and lack of responsibility put our soldiers and embassy people and the rest in this awkward position in the first place) is home safe? Why don’t we start asking news agencies and the like what they are thinking sending people into harms way like this, if they are going to be content to let the government take the fall when it all goes sideways? Would any of this even be news if these people worked for a private company, or the government, or whatever else? Anyone remember the two aid workers that got killed a little while ago? I remember everyone screaming for blood then. Now that firm action is taken in the face of criminality you are all back-tracking?

    So typically Canadian.

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