Two and a half years ago, Geoffrey O’Brian, a CSIS lawyer told the public safety committee that the agency would use information that may have been obtained through torture if faced with potentially grave circumstances.
Frankly, I’m tempted to say that there are four words that can provide a simple answer, and those four words are either “yes, but” or “no, but”, and the “yes, but” is, do we use information that comes from torture? And the answer is that we only do so if lives are at stake.
Peter Van Loan, public safety minister at the time, rebutted that a day later, saying such information is “discounted” and that Mr. O’Brian had engaged in “some kind of hypothetical discussion.” Jim Judd, CSIS director at the time, said Mr. O’Brian might have been “confused” and Mr. O’Brian subsequently retracted his remarks.
But a year ago, the Canadian Press obtained briefing notes for CSIS director Richard Fadden. And those notes outlined a position similar to that expressed by Mr. O’Brian.
CSIS will share information received from an international partner with the police and other authorities “even in the rare and extreme circumstance that we have some doubt as to the manner in which the foreign agency acquired it,” say the notes prepared for use by CSIS director Dick Fadden. The notes say that although such information would never be admissible in court to prosecute someone posing an imminent threat, “the government must nevertheless make use of the information to attempt to disrupt that threat before it materializes.”
This brings us now to the Security Intelligence Review Committee report released this month on CSIS and the handling of Afghan detainees. Contained within that report are references to a deputy director operations directive issued in 2008 and a ministerial direction issued in December 2010. At the bottom of page 14, SIRC states as follows.
However, the DDO Directive as it is currently worded may leave CSIS vulnerable to potential challenge or criticism regarding its stance on information-sharing with agencies that have a poor human rights record: [REDACTED]
[REDACTED] the need to carefully manage exchanges with agencies suspected of human rights abuses to ensure proper accountability is the expected norm in all environments. This principle is reflected in Ministerial Direction provided to the Service in late 2010, which specifically states that “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.
A footnote indicates that ministerial direction was issued by the Minister of Public Safety to the CSIS director on Dec. 7, 2010. The minister at that time was (and still is) Vic Toews.
Two weeks ago, I sent a note to Mr. Toews’ office asking to see the full text of the ministerial directive. I was told by a spokeswoman for the minister that the directive was presently a “classified document” and getting it declassified would take some time.
Around the same time, I sent the following question to the Prime Minister’s Office.
What is the government’s position on the use, by CSIS and other Canadian authorities, of information that may have been obtained through torture or where the originating source is the subject of human rights concerns?
This question was duly forwarded to Mr. Toews’ office. The response from the minister’s spokeswoman was as follows.
Canadians rely on CSIS to perform an important function in protecting our safety and national security. CSIS agents are bound by the same human rights standards as all other Canadian government officials. Our government has been clear that we do not condone the use of torture for any purpose.
I suggested that this did not directly answer the question asked, but received nothing more in response.
On that note, I contacted CSIS. For the sake of clarity, I put my questions in writing as follows.
The SIRC report released last week makes reference to a ministerial directive issued by the Minister of Public Safety to the director of CSIS on December 7, 2010 which reads, in part, that “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.”
From the context provided by the SIRC report this seems, to me, to be a reference to the handling and use of information where the possibility exists that that information was obtained through torture or where human rights concerns exist generally.
Is that an accurate interpretation?
And, for the record, what is CSIS’ policy on the use and sharing of information that may have been obtained through torture or where the originating source of the information is the subject of human rights concerns?
I presented those questions to CSIS last Thursday and on Friday, I received the following response (edited only to remove repetition of my email above).
In your first question you’re asking us whether your interpretation of the SIRC report is accurate. That would be a question for SIRC, not us.
As for the second question … The quotation you cite from our Minister accurately reflects our approach, which is that the protection of life and property is our overriding priority, and when there is a serious risk to public safety and lives may be at stake we are required to share the necessary information in our possession. That said, our guiding principle — the one all CSIS employees understand — is that we must work to safeguard national security while at all times promoting and upholding the values Canada seeks to protect.
One note on timing: The briefing notes for Richard Fadden that were obtained by CP in September 2010 were prepared for a June 2010 interview the CSIS director granted to the CBC. Those briefing notes predate the ministerial direction by six months.
That question aside, there would seem, from my reading, to be little, if any, room between the position articulated by Mr. O’Brian two and a half years ago and the official policy as it’s articulated now.