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The Bureaucratization of Misconduct

Earlier this year, Jim Bronskill reported on a series of very disturbing ministerial directives at CSIS relating to the use of information derived from torture and sharing information that could lead to torture. In February, Mr. Bronskill reported on a December 2010 ministerial directive in which Public Safety Minister Vic Toews apparently informed CSIS that the agency is expected to rely on information potentially obtained through torture in “exceptional circumstances.”  In March, he uncovered a four-page directive issued in July 2011 to CSIS director Richard Fadden, in which Minister Toews outlines the procedures for sharing information with foreign agencies in cases where such cooperation carries “substantial risk” that someone will be tortured.

Now, he’s reporting on a follow-up memo to those directives, which sets out the bureaucracy for using information where there is a “substantial risk” that the information is the result of torture, or for sharing information that will likely result in torture. Any way you slice it, though, it’s complicity in torture, and unfortunately, systemizing it doesn’t make it any more legitimate or any more legal.

To recap: the prohibition against torture is universal and non-derogable. There are no circumstances under which torture is permissible, and threats to public safety or national security – however serious – can never be invoked as a justification for torture. This is a bedrock principle of international human rights law. The prohibition against torture can only be meaningful if we stamp out all conduct associated with torture. That means governments can’t be complicit in torture – taking action that they know may very well result in someone being tortured. It also means governments can’t rely on information derived from torture, even if they don’t actually engage in the act of torture themselves. So long as there is a market for the fruits of torture, there exists the incentive to torture.

Therefore, whenever CSIS is faced with the knowledge that there is substantial risk that intelligence information was derived from torture or mistreatment, it should always decline to use it. And whenever CSIS is faced with the knowledge that sharing information with a foreign government would likely result in someone being tortured or mistreated, it should always decline to share it. What CSIS should not be doing is creating an “Information Sharing Evaluation Committee” to figure out what to do after it’s been established that the information at issue was either derived from torture, or would likely result in torture. Yet this is precisely what this memo sets out – the structure of such a committee, a direction to refer decisions on using torture-tainted information to the Director of CSIS, and active contemplation that such information will be used or shared. There’s even a flow-chart and guidelines, making explicit the framework for exploiting information that the government should not be using or sharing in the first place.

These documents purport to create a system so as to “avoid any complicity in mistreatment by foreign entities.” Notwithstanding this sentiment, the very creation of this system undermines the effort to avoid complicity, because it still holds open the option of complicity in torture. No amount of bureaucratization can create legitimacy for such misconduct. As the BCCLA’s policy director Micheal Vonn put it last week: “What this amounts to is a process to violate the law.” We at the National Security Blog can’t put it any better than that.