Yesterday a lawyer for the federal government, Barbara McIsaac, defended in open court the use of torture. She is the government’s chief counsel at the Maher Arar enquiry. We must therefore assume, with enormous regret, that she was speaking for our government in her official capacity.
She posed a hypothetical question: say we become aware of a plot to blow up the Canadian Embassy in Damascus. Passing that information along will result in many people being tortured. "Do we not do that?" she asked. She went on to speculate about another scenario: should the RCMP and CSIS refuse to consider information obtained under torture that would stop a bombing at a Toronto subway station? (Thankfully she doesn’t expand on this, so we don't have to consider the possibility that CSIS and/or the RCMP did the dirty work themselves.) "That's the moral debate," she said. "And that's a horribly difficult question, isn't it?"
Well, no, not really.
The moral question is actually rather simple: should the state officially countenance torture, or not?
Alan Dershowitz, a prominent American lawyer and Harvard law professor, says yes. He wants torture to be made legal through the issuing of "torture warrants." He argues that the practice actually requires legitimization, with all of the checks and balances and tests presently required for other types of warrant. He would prefer to see torture, in other words, within the legal framework rather than outside it, where it lies, in effect, unregulated.
A seductive argument? Not at all. What such legitimization would do, besides making torture far more prevalent, by virtue of legalizing it, would be to corrupt public morals: the notion of torture as a legitimate tool of the state undermines the very values that make us civilized.
What about the use of good information obtained through torture? That one is tricky: if the information had a positive human impact and its use is not likely to legitimize the means by which it was obtained, it may not be immoral to use it. As an example, some of the information gathered by the Nazis in their notorious medical experiments might have positive application at the present time. Should we refuse to utilize it? Its use hardly encourages a resurgence of Nazism, nor of the amoral code that allowed the Third Reich to perpetrate such atrocities. It's merely data at this point in history. To reject such information would be like refusing to use acetylsalicylic acid if it came to light that mediaeval physicians forced prisoners to imbibe infusions of willow bark to determine the proper dosage. But, on the other hand, if the potential usefulness of such data directly encourages or legitimizes the use of torture, it is clearly wrong. And that is what appears to be the case here.
Even leaving morals aside, the practical problem with torture, of course, is its sheer unreliability. Victims, like Maher Arar, tend to tell their torturers what they want to hear. Hence, we are told, "CSIS will attempt to corroborate the information with other independent sources." But if CSIS is actually responsible for driving the process of torture itself by furnishing information to the torturers, as the Arar inquiry and the fate that befell two other Canadians strongly indicate, then it is morally complicit, as are creatures such as our current Ambassador to Romania, Franco Pillarella, who outrageously claimed that he had no idea Syria tortured anyone.
The disease spreads rapidly. "Government witnesses at the inquiry have said they accepted summaries of Mr. Arar's 'confession' even as Ottawa was working to obtain his release from the Syrians," the Globe & Mail reports. McIsaac tries to reassure us: "Decisions were made in good faith and with no animus toward Mr. Arar." This might have been of some comfort to him as the Syrians were whipping him with cables, but it appears that this soothing message was never delivered.
But here's the bottom line, blithely delivered by McIsaac without a hint that she had the slightest idea of the import of her words: with respect to Arar, she said, "We now know nothing was going on."
Hindsight, as they say, is 20-20. But it doesn't help those who are selected for torture and are later found to a) be innocent of any crime, and/ or b) have no germane information to provide.
And this, of course, leads directly to a question of confidence, all other aspects of this unsavoury topic aside. Do we trust CSIS to select the "right" victims? Not likely, in my opinion: it was wrong about Arar, and, in the case of Bhupinder Liddar, a diplomat whose career it cut short, an oversight body, the Security and Intelligence Review Committee, has just found that CSIS has lied, covered up evidence, and in general behaved in a thoroughly dishonest and incompetent fashion. Do we trust the RCMP? Ask Ahmad El Maati and Ottawa businessman Abdullah Almalki, both tortured in Syria on the basis, it seems, of information fed to the Syrians by the Mounties. Do we trust Paul Martin and Anne McLellan, his Minister of Public Safety? (Has no one picked up, incidentally, on the irony of this title? Or is it indeed irony?) They don't want the Arar enquiry widened, goodness, no, and if these men have a complaint, tough noogies.
So, visiting Syria sometime? Want to put your bodily well-being in the hands of people like this? Be my guest, but I think I'll choose the Caribbean.
In the meantime, though, a far more serious question. Does Barbara McIsaac, in her defence of state-sanctioned torture, speak for the government of Canada? And, more important--does she speak for Canadians?