CSIS head urged government to fight ban on information obtained through torture

Canada’s spy agency was so reliant on information obtained through torture that it suggested the whole security certificate regime, used to control suspected terrorists in the country, would fall apart if they couldn’t use it.

MONTREAL — Canada's spy agency was so reliant on information obtained through torture that it suggested the whole security certificate regime, used to control suspected terrorists in the country, would fall apart if they couldn't use it.

That's the essence of a letter written in 2008 by the former director of CSIS, Jim Judd, obtained by the Montreal Gazette.

It suggests a disturbing acceptance by the national security agency of torture as a legitimate strategy to counter terrorism.

The letter, dated Jan. 15, 2008, was sent from Judd to the minister of public security just as the government was finalizing Bill C-3, legislation to replace the security certificates law which was struck down by the Supreme Court as unconstitutional in February 2007.

The government had been given a year to come up with new legislation that would respect the charter rights of those targeted by the certificates.

In the letter, Judd urges the minister to fight an amendment to C-3 proposed by Liberal MP Ujjal Dosanjh that would prohibit CSIS and the courts from using any information obtained from torture or "derivative information" — information initially obtained from torture but subsequently corroborated through legal means.

"This amendment, if interpreted to mean that 'derivative information' is inadmissible, could render unsustainable the current security certificate proceedings," Judd writes. "Even if interpreted more narrowly to exclude only information obtained from sources and foreign agencies who, on the low threshold of "reasonable grounds" may have obtained information by way of torture, the amendment would still significantly hinder the Service's collection and analysis functions."

Despite Judd's opposition, the amended Bill C-3 was adopted in February, 2008. But the letter calls into question CSIS's previous assurances that it did not countenance torture abroad. And observers wonder whether anything has changed in CSIS' approach since C-3 was adopted.

Lawyer Johanne Doyon, who successfully petitioned the Supreme Court to strike down the original security certificate law on behalf of Adil Charkaoui, said after C-3 was passed the government immediately issued five new security certificates — including one for Charkaoui. CSIS had not had time to re-analyze the evidence it was presenting, Doyon said.

"The government was well aware before signing the certificates that they were based on information derived from torture," Doyon said. "It's very disturbing — they just closed their eyes and signed."

Charkaoui, a Moroccan citizen who CSIS alleged was an al-Qaida sleeper agent, was facing removal from Canada until the Federal Court struck down a security certificate against him in 2009.

Doyon is now arguing for a stay of proceedings in the case of Mohamed Mahjoub, held on a second certificate since 2000, and for his release from house arrest next week. Mahjoud was detained in June, 2000, accused of being a high-ranking member of an Egyptian terrorist group.

In his case, a federal court judge ruled in June, 2010 that ministers and special advocates for Mahjoub had to sift through the evidence in the Security Intelligence Report and exclude any that might have been obtained through torture. Justice Edmond Blanchard also said the approach taken by CSIS to filter information so as not to use any derived from torture was not effective.

"It's shocking and it's worrisome for society in general," Doyon said. "It's illegitimate, illegal and unconstitutional to (use information derived from torture.) Who in the name of Canada can be above the law this way?

"And it's not just in one case, but in so many, and with Canadian citizens too — Maher Arar for example (who was sent to Syria and tortured with CSIS complicity) Just where will it lead?"

In an email message Friday, a CSIS spokesperson did not address the 2008 letter from the director. But Tahera Mufti said: "We oppose in the strongest possible terms the mistreatment of any individual by any foreign entity for any purpose. We do not condone the use of torture or other unlawful methods in responding to terrorism and other threats to national security." Mufti also said CSIS uses "appropriate caveats or instructions when sharing information" and that its activities are subject to review by the Security Intelligence Review Committee, which has access to all CSIS "foreign arrangement files. "

In the 2008 letter, the CSIS director says part of the difficulty facing the agency lay in not being able to adequately assess which information came from where; foreign agencies do not often divulge the source of their information.

For Judd, the worst-case scenario would be that the federal court, in reviewing a security certificate, asks CSIS to certify that intelligence was gathered without resort to torture, or renders inadmissible "any and all information provided by agencies in countries whose human rights records are in question — of which there are many."

Amnesty International's 2007 State of Human Rights Report, referenced but redacted in Judd's letter, lists 102 countries which that year had cases of torture and ill-treatment by security forces, police and other state authorities, including the United States.

Judd does not express any concern about the reliability of such information, however. Rather, he suggests an alternative amendment to the bill, which would read "the judge may receive into evidence anything — other than a statement obtained under torture — that in the judge's opinion is reliable and appropriate."

Asked to comment Friday on the substance of the letter, Reem Bahdi, a law professor at the University of Windsor, said the more she learns about the practices of national security agencies, the more worried she becomes about the state of national security in Canada.

"The agencies tell us they don't use torture or support torture on the one hand, and on the other hand they appear to be promoting torture — promoting it as a form of information gathering!" Bahdi said. "I worry not only because information derived from torture is not reliable, but also because of the ramifications around the world that this kind of support for torture can have. What's taking place in the Middle East is very interesting — these are repressive societies built on torture and our agencies are helping to legitimize those regimes through their practices, their relationships with the regimes and their justifications."

Bahdi said the prohibition on torture is part of international law, and was part of Canadian law long before the C-3 amendment. But CSIS needs to be held accountable, she said.

"There has to be a cultural shift in CSIS so they take seriously the prohibition on torture and understand it's not there to tie their hands behind their backs so they can't do their work, but to ensure that their work has some integrity . . .

"If torture produced national security, the regimes in the Middle East would be the safest places in the world."

Audrey Macklin, a professor of law and at the School for Public Policy and Governance of the University of Toronto, said it's not surprising CSIS would warn of the end of the security certificates regime, because so many of them depend on information obtained through torture.

"But it's worth asking, why do we have the security certificates? Before 9/11 we didn't have provisions in criminal law addressing anti-terrorism — now we do. If they are good enough for citizens, why not for non-citizens?"

Source: Montreal Gazette

Simons: Leslie Green, a leading authority in international law, dead at 91

EDMONTON - Last Saturday evening, Leslie Green, 91, one of the world’s leading authorities on international law, was with his wife Lilian at the Winspear Centre, bound to hear the Edmonton Symphony Orchestra play Brahms.

The retired University of Alberta political scientist collapsed in the centre’s elevator on the way up to his seats.

“If he’d had to script it, that’s the way he might have wanted to go,” his daughter Anne, a Calgary arts administrator, says of her father’s death. “He lived his life to the very end.”

And what a life it was. In the course of 91 remarkable years, Green was an British intelligence operative, a war crimes prosecutor, a scholar, an author, an adviser to Canadian, Israeli, and U.S. governments, a patron of the arts, an irrepressible raconteur.

His writing and teaching on the law of warfare and humanitarian law shaped two generations of lawyers, diplomats, and military officers around the world, and helped to redefine the way we prosecute international war crimes.

“He was really a giant in the field,” says Michael Schmitt, chairman of the international law department at the United States Naval War College, and one of Green’s former students. “He wrote the classic textbook on the law of armed conflict. He was the first to really focus on the subject. He was a huge and important influence on the international community.”

Andy Knight, chairman of the U of A department of political science, said Green had an enormous impact, especially in the areas of human rights and the laws of war. “Students loved him and really gravitated toward his classes, even though he could be really tough on them,” Knight said. “He didn’t suffer fools gladly, but he would go to bat for anyone who had their human rights violated.”

Green was born in London in 1920 into a Romanian-Jewish family.

He grew up in London’s tough East End, graduating from the University of London with a law degree in 1941. With the Second World War raging, he joined the British Army, where he was asked to enrol at London’s School of Oriental and African Studies to study Japanese. In 1943, he was then posted to India as a commissioned lieutenant with the Intelligence Corps.

As the war ended, Green became a military lawyer — serving both as a defender and a prosecutor of Indian and Burmese soldiers who had deserted to fight on the side of the Japanese.

In India, Green also met Lilian Meyer. She was a member of the Womens’ Royal Indian Naval Service, and of Calcutta’s deep-rooted Sephardic Jewish community. On their first date, they went horseback riding. Green was thrown, ending up in hospital with a broken pelvis. Lilian was a regular visitor. Then, she went riding, was thrown by the same horse, and broke her knee. Green visited her. In the end, the pelvis-shattering first date sparked a 66-year marriage.

In 1946, Green returned to London as a lecturer in international law and began his prolific writing career. Between 1946 and 1960, he published 60 academic articles, as well as his first authoritative textbook, International Law Through the Cases. In 1960, Green, his wife, and Anne, their only child, left London for the University of Singapore, where Green served as dean of the law faculty. But in 1965, the family moved to Edmonton, where Green was recruited to join the U of A’s department of political science.

“It was snowing in the middle of September when we got off the train from Vancouver,” Anne recalls.

But the family quickly adjusted to life in Canada.

In addition to his teaching and research at the U of A, Green drafted the Canadian Forces Manual on the Law of Armed Conflict and advised the government on everything from treaty negotiations to the Canada embassy’s sheltering of Americans during the Iran hostage crisis. He also served on the board of the Edmonton Symphony Orchestra and Beth Shalom synagogue, and on the board of Theatre 3, the company Anne co-founded in 1970.

Along the way, among many other honours, he won the Order of Canada, was appointed a Fellow of the Royal Society of Canada, and earned the U of A’s highest awards for both research and teaching.

William Fenrick recently retired as a professor of international law at Dalhousie University. Before that, he spent 20 years as a military lawyer, and another 10 as senior legal adviser to the International Criminal Tribunal prosecuting war crimes committed in the former Yugoslavia. Green, he says, was his mentor.

Rather than trying to create acolytes to sit at his feet, says Fenrick, Green encouraged students to think for themselves.

“. “He was what I’d call an independent scholar. He was always true to his own opinions. He acted as mentor to a number of people, but he never wanted to create a school of Leslie C. Green.”

Green published nine books and more than 300 papers on everything from international terrorism to the legal status of West Berlin to the legal status of native treaties. He finished and published his last book at the age of 86. And his writing was unusually clear and lively for an academic, short on theory and jargon, long on compelling historical examples.

Anne Green says what linked her father’s academic interests was his unyielding passion for human rights.

“He was always fighting for the underdog. He believed in human rights in general, and the rights of the individual. He did everything he could for justice wherever possible.”

Officially, Green retired from the U of A in 1991, at the age of 71. But he scarcely slowed down. He was a visiting professor at the University of Denver, then held the prestigious Stockton chair in international law at the U.S. Naval War College.

Michael Schmitt says the contrast between the diminutive scholar and the college’s brawny naval officers was both striking and funny.

“He was big in his field, but he was a tiny little guy, kind of like a leprechaun, surrounded by these giant U.S. military officers. But he would keep audiences mesmerized when he spoke. The officers loved him because his work wasn’t theoretical or ideological, but full of practicality. He was very focused on what happens on the battlefield once you get there.”

Green’s public profile increased after the 9/11 attacks, when media from across Canada called him for his insights on everything from international terrorism to the legality of the war in Iraq to the torture and humiliation of prisoners at Abu-Ghraib.

He supported the war in Iraq, arguing that it was “a duty of states to act in the name of humanity and interfere on behalf of citizens being put upon by a tyrant.” But he deplored what he saw as instances of mistreatment of Iraqi and Afghan prisoners by both American and Canadian Forces.

“The trouble seems to be that we have become so close to Big Brother, we have forgotten what our obligations are toward prisoners of war,” he said.

His daughter says he was always “extremely opinionated, but it was impossible to place him in any kind of left-wing/right-wing box. He was way too broad a thinker to pigeonhole that way. He was a lawyer and he was really able to see all sides.”

Jailed Afghan rape victim wins pardon after agreeing to marry attacker

KABUL, Afghanistan - Afghan President Hamid Karzai has pardoned a jailed rape victim, but only after she agreed to marry the man she says raped her.

The 19-year-old woman, whose name is Gulnaz, was one of the subjects of a documentary recently produced by the European Union, highlighting the phenomenon of rape victims being imprisoned for the "moral crime" of having sex outside marriage, even against their will.

Karzai's office said in a statement Thursday evening that the president had accepted a recommendation from a special judicial committee that the woman be pardoned and freed - "taking into consideration the consent of both sides for a conditional wedlock."

Gulnaz became pregnant as a result of the rape and gave birth in prison.

Hundreds of Afghan women are serving jail sentences in similar circumstances. But the documentary coverage of Gulnaz's case sparked a petition drive seeking her freedom, and as a result, judicial authorities reexamined her case.

The European Union said in a statement that it welcomed her release.

Reflecting the sensitivity of the issue, however, the EU had decided earlier not to release the documentary, citing concerns over danger to the women, even though those who were profiled had given the filmmakers permission to use their names.

The film was shown to news organizations and human rights groups, however.

The pardon came ahead of an international summit on Afghanistan to be held in Bonn, Germany, beginning this weekend. Women's activists are using the gathering as a forum for speaking out about fears of renewed repression in the country after the Western combat mission ends in the next two years.

During Taliban times, women were forbidden to leave their homes unescorted. Virtually none attended school or held jobs during the Islamic movement's five-year rule, which ended with the U.S.-led invasion of 2001.

Women's groups, however, say the gains of the last decade are threatened by the government's attempts to negotiate a peace settlement with the Taliban and bring the group into the political process.

Senior Addl AG Bhinder resigns

Chandigarh, December 2
Punjab’s Senior Additional Advocate-General Sukhdeep Singh Bhinder has resigned. Sources said Bhinder had submitted his resignation to the Advocate-General to be forwarded to the Home Department.

Bhinder, who hails from Bathinda, was appointed Additional Advocate-General by Chief Minister Parkash Singh Badal immediately after the formation of the SAD-BJP government in 2007. He had earlier resigned in 2009 to campaign for Harsimrat Kaur Badal for the Lok Sabha elections and was re-appointed as Senior Additional Advocate-General.

Bhinder, who remained in the Ludhiana jail with Badal in the early 1980s, is considered close to Manpreet Singh Badal, Sanjha Morcha chief.

Confirming the resignation, Bhinder said he had quit due to personal reasons.