Dope Sheet Column – January 25, 2006

DOPE SHEET COLUMN FEDERAL ELECTION IMPLICATIONS

This Dope Sheet is being prepared on January 25, 2006, two days after the Federal election. Prime Minister Harper. Now there is scary thought. For those of us doing “national security” work Anne McLellan’s defeat is good news, probably no matter how bad the new Minister of Public Safety and Emergency Preparedness is. I had suggested in a recent column that Ms. McLellan should resign as a Minister because, by her non-response to the issues raised by Amnesty International of Canadian complicity in torture, she too was complicit in the torture in Syria and Egypt of Ahmed El Maati and in Syria of Abdullah Almalki. Ms McLellan did not respond to my call for her resignation. Given how few people seem to read the Dope Sheet, she likely never heard of the call for her resignation. The voters in Edmonton obviously heeded my call for her resignation. On second thought they could not have heard about my suggestion of her complicity of torture; that would have led to her re-election. Marijuana legislation The election of the Conservatives probably puts an end to the proposed changes to marihuana legislation. Contravention Act offences for possession of marijuana will not be created. To my mind it is doubtful if the Conservatives, in the face of the NDP and the Bloc views on marijuana, will be able to increase the maximum penalties for grow labs. Possession of hand guns Mr. Harper and Mr. Layton called for mandatory minimum sentences for possession of hand guns. Layton’s minimum was 4 years and I believe Harper’s minimum was 10 years. While Justice Minister Cotler was opposed to more mandatory minimum sentences, I expect that in the Liberal Party the Conservatives will be able to find enough support to add to the support from the NDP, to create more mandatory minimum sentences. It is likely that 16 and 17-year-old young people will face mandatory prosecutions as adults when charged with hand gun offences. During the election campaign there was discussion of making possession of a hand gun an offence that had a reverse onus bail requirement. In a country where possession for the purposes of trafficking in marihuana is a reverse onus offence, it seems to me that it is likely that legislation changing the bail provisions for possession of hand guns will be passed soon. That to me sounds like a good idea. SECURITY CERTIFICATE CASES There are a number of Charter issues related to the security certificate provisions of the Immigration and Refugee Protection Act which will be argued in the Supreme Court of Canada on June 13th, 14th and 15th in the Charkaoui, Almrei, and Harkat cases. Leave to appeal in Harkat was granted on January 19, 2006. One issue to be argued is whether the security certificate provisions of IRPA, with secret evidence heard by the judge, in the absence of counsel for the detainee, meet the fundamental justice requirements of Section 7 of the Charter. In the Harkat case I had asked Justice Dawson to appoint an amicus curiae (or special advocate) to assist her in assessing the evidence in the case. In the United Kingdom such a special advocate procedure is used before the Special Immigration Appeals Commission which deals with cases very similar to our security certificate cases. Justice Dawson turned down my request for the special advocate/amicus curiae. Even before the Section 7 issue is argued in the Supreme Court of Canada I believe we may see a special advocate used in a security case in the Federal Court. There is also a possibility that the Senate and House of Commons Committees that were looking at the security certificate issue will recommend that the special advocate procedure be legislated into the security certificate provisions of IRPA. THE CONTINUING CSIS BLIND EYE TO TORTURE I recently had an article in the Dope Sheet column entitled CSIS: Turning a Blind Eye to Torture. Recently in the Harkat case, on his bail application pursuant to S. 84(2) of IRPA, the government produced before Justice Lemieux in the Federal Court a witness identified only as PG. PG was the Senior Middle East Analyst in a branch known as the Requirements Analysis and Production Branch. PG looked at issues pertaining to Islamic Extremism and the threat of Islamic Extremism to Canada. During the course of my cross-examination of PG I asked him a number of questions about whether CSIS makes any attempt to find out if information CSIS has received was obtained from torture. Torture under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as defined in the Gonzales Memorandum (prepared for then Counsel to President Bush, now Attorney General, Alberto Gonzales): “Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but it is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury, so severe that death, organ failure, or permanent damage resulting in the loss of a significant body function will likely result.” This memorandum was prepared on August 1, 2002 by Jay S. Bybee, then Assistant Attorney General (now a Federal judge), after the capture of a high level al Qaeda member, Abu Zubaydah, in Pakistan. Abu Zubaydah is one of what Humans Rights Watch calls the Ghost Detainees. He is somewhere in one of the CIA black sites. What follows is a portion of the cross-examination of P.G. on the issue of evidence obtained by torture (an electronic version of PG’s evidence is available for those who want it): Q. Were any discussions had within CSIS, in regard to that definition of torture, and how the Americans might be treating their prisoners, or having their proxies treat their prisoners? A. I have not been privy to conversations concerning that subject, no. Q. As the Senior Analyst for CSIS, would you have thought that it would be appropriate that you be included in those discussions? MR. MacINTOSH: Objection. He cannot be asked to comment on the efficacy or the policy that is adopted by the Director of CSIS, or people that are his superiors, whether it is appropriate or not. JUSTICE LEMIEUX: I am going to overrule that objection. He is in crossï·“examination. He is entitled to probe the Witness. THE WITNESS: I am sorry, could you repeat the question? BY MR. COPELAND: Q. Probably not. What I want to know is whether or not the issue of how the Americans, or their proxies, were treating alï·“Qaeda prisoners, wherever they were in the world, whether or not that should have been something brought to your knowledge, as the Senior Analyst for CSIS, in matters relating to alï·“Qaeda? A. As I have stated, I am not aware of any discussions that took place within the Service, in that regard, and since I am not aware that there are, or are not, or rather, were or were not, discussions, then I cannot see how I could actually be included in those discussions. Q. Let me suggest to you that CSIS does not care, in the least, whether or not people are tortured, as long as they get the information. A. I believe I have already answered that. I believe that not to be true. Q. Can you tell me what steps you took, personally, to ascertain whether or not information that was coming to you, was obtained by torture, or may have been obtained by torture? A. As I have stated, as an analyst, whether senior analyst, or junior, does not matter, when we do our analyses and write our papers, we ensure to the best of our ability and knowledge, that the information has been corroborated, and is, in fact, accurate information. Q. And do you check to find out whether or not it came from torture? Do you make inquiries about that? A. Again, as an analyst, I seek to find out if the information is correct. Q. And you do not care whether or not the original source of it came from torture? MR. MATHIESON: This question has been asked now, My Lord, about three or four times. I think, it may be crossï·“examination, but it is time for my friend to move on. JUSTICE LEMIEUX: I will overrule that. I am not satisfied that the Witness has answered appropriately. I was going to ask him a question, and may still ask him a question. THE WITNESS: I can state that I have never, personally, asked any individual, whether or not specific information was obtained under torture, no. JUSTICE LEMIEUX: May I ask a question, Mr. Copeland. MR. COPELAND: Pardon? JUSTICE LEMIEUX: May I ask a question? MR. COPELAND: Sure. JUSTICE LEMIEUX: If you did not, as the Senior Analyst, if you did not ask under what conditions the information which you received was obtained, how can you be satisfied that the information is reliable, because you yourself have said it affects the reliability. If you do not even inquire, and the person has been tortured, then the information is unreliable, how can you rely on it. THE WITNESS: That is a very good question, My Lord. The key to analysis, the key to using information, and judging the reliability or veracity of the information, rests on corroboration. If you receive the same information from a variety of sources of variant degrees, and the information is consistent, then as an analyst, you make the judgment that that information is in fact true and, therefore, it can be used in your analysis. BY MR. COPELAND: Q. So, let me understand this. You get some information from Abu Zubaydah, who may or may not have been tortured. It is corroborated by somebody else, whether it is corroborated by one of the other 11 detainees listed in the Human Rights Watch Ghost Detainees paper. A. Yes. Q. And you do not inquire whether or not that person has been tortured,then it is corroborated? A. No. In fact, as I am trying to establish, we receive information, we corroborate it from a number of different sources and, in fact, if it was determined that all of the information, and all the corroboration, came from the same type of sources, under the same conditions, then we would have to seek other corroboration, that verified, or did not verify, that information. Q. But you just told me before, you did not ask anything, or so far as you know, the Service did not ask anything about the conditions that Abu Zubaydah was being held in. So, you are not going to ask anything about the conditions that somebody else is being held in. So, you are going to have two sources of information, you know nothing about how the information was produced. One corroborates the other, and then you put it in the report. A. No. I have stated that we seek as many sources of information as possible, and if the information comes from similar types of sources, about which perhaps we do not have information as to how it was obtained, under what conditions, we would seek other forms of corroborated information. Q. So, let me try this. CIA says to you, we got information from Abu Zubaydah. “We got information” ï·“ï·“ if I could find the name here I can pronounce ï·“ï·“ Ramzi bin alï·“Shibh, that say, for example, my client was in Afghanistan. And you have done nothing to make any inquires about where the CIA got the information, or how they extracted the information, one is corroborating the other. Would it go into a report? A. Not necessarily. Again, corroboration comes from looking at a variety of sources. I, as an analyst, would consider a CIA source, if this is the one we want to use here, as a source of information. I would also seek corroboration from information that did not come from the CIA. Q. But, assuming you have two sources, there are two pieces of information from the CIA. CIA is your closest cooperating agency. Isn’t that a fair assessment? A. The Service has a relationship with many different agencies. I cannot typify one as being closest, or not. Q. But, the CIA is the one that you probably acknowledge that you work with. That is public information. A. Fair enough. Q. And some of the other countries you don’t acknowledge, whether or not you have relations? A. True. Q. All right. You got two pieces of information from the CIA. Would it go into the report, into any report? A. Again, we seek to find information from a variety of sources. If the only information that we have on a specific incident, or a specific individual, comes from one unique agency, we take that unique source into consideration, before doing our analysis. Q. And then put it in the report, I take it? A. Not necessarily. Q. But, also, it is not a guarantee that it will not go into the report? A. That is correct. Q. So, you may have two pieces of information. You do not bother to make any inquiries about how the information was obtained, and maybe, it will end up in a report, even though maybe both of them, were obtained under torture? A. That is possible, yes. JUSTICE LEMIEUX: The question I was going to ask you is how can you possibly corroborate information, when you have not even inquired whether source “A”‘s information has been obtained under torture? How can you corroborate when you do not even inquire, to see what condition source “A”, which you are trying to seek the corroboration was extracted under torture? If it was extracted under torture, how could it be corroborated? Because it is automatically unreliable. I do not understand how you can corroborate information, which has been obtained under torture. If potentially ï·“ï·“ it seems to me it is a non sequitur. THE WITNESS: In this instance, My Lord, we are talking about information that has been obtained from a foreign agency, let’s say the CIA. The Service does not rely 100 percent solely on information received from foreign agencies. The Service carries out its own investigations, and receives information from its own sources. We would try to corroborate the information. Do our utmost to corroborate the information, using our own sources of information. Any good intelligence analyst never relies on a single source of information, unless the information is so catastrophic in its implications. But it is extremely rare for an intelligence service, let alone intelligence analyst, to rely on a single source of information. And I would also add that if My Lord said that all information obtained under torture is, by definition, unreliable, I am not sure there is consensus in that respect. In other words, if I may continue, it is certainly possible that information as obtained, may in fact be corroborated from other sources that were not subject to the same conditions. BY MR. COPELAND: Q. I understand that, but you do not make any inquires to find out whether they are obtained under torture, in the first place? A. Again, I think I have answered that question on several occasions. I personally, have not made those inquires. I am not aware whether or not other members of the Service have made those inquiries, or not. Q. But do you ask the other members of the Service that give you the information, whether or not they check to see whether the information was obtained under torture? A. I personally have not made those inquiries, no. Q. How do you ever find out whether information was obtained under torture? You personally? A. Again, I have not made those inquires myself. I have sought to have the information corroborated, from sources, other than the original source. Q. But, you never ask whether or not information that is being given to you, that you may or may not put in a report, you never make inquiries as to whether it was obtained under torture, or might have been obtained under torture? A. I have not made personal inquires in that regard, no. Q. And is there some reason why you have not made those inquiries? A. No. Again, I seek to corroborate the information through other sources. In its annual report for 2004-2005 SIRC made the following comments in regard to their Review of a Counter-Intelligence Investigation: When CSIS initiates the process to enter into a new arrangement with a foreign agency, it informs Foreign Affairs Canada and the Minister of Public Safety and Emergency Preparedness that it will “closely scrutinize the content of the information provided to, or received from, a foreign agency in order to ensure [our emphasis] that none of the information sent to, or received from, that agency is used in the commission of, or was obtained as a result of, acts that could be regarded as human rights violations.” SIRC took note of two issues arising from this statement (only the first issue is relevant to this article). First, the use of the term “ensure” implies that CSIS will make certain that the information shared does not lead to – or result from – acts that could be regarded as human rights violations. However, the Committee concluded that CSIS was not in a position to provide such an absolute assurance. Based on the answers PG gave in his cross-examination in the Harkat case, and the above noted SIRC report, I made a complaint to CSIS about their lack of concern as to whether evidence or information they received was obtained from torture. When the response I received from CSIS was unsatisfactory to me, I asked the Security Intelligence Review Committee (SIRC) to review the response given by CSIS. The matter is presently in the hands of the Review Committee.