The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

So what are the real reasons for rejecting torture? The first is that it is abhorrent to both the principles underlying the rule of law, and our understanding of fundamental human rights — both of which are cornerstones in the foundation of our democracy. The common law rejected the practice of torture, and the admission of any evidence procured by torture, as early as the fifteenth century. It did so not only on the grounds that the information so obtained was inherently unreliable, but also because it was felt that the practice of torture would degrade all those who engaged in it, ultimately undermining the authority and effectiveness of the judicial system itself. And indeed, the continued use of torture by the Star Chamber in the sixteenth century became one of the central issues between the Crown and Parliament, with torture being cited as being “totally repugnant to the fundamental principles of English law… and repugnant to reason, justice, and humanity.” That view, of course, informed the drafting of the 8th Amendment of the U.S. Constitution.

With the development of human rights law in the twentieth century the prohibition against torture was embedded in international law conventions. This reflected the recognition that to torture another human being is not only to treat them as being less than human, and to destroy aspects of their physical and mental integrity, but it is also to degrade and undermine the humanity of those who perpetrate the torture. The U.S. was a harsh critic of regimes that engaged in torture in the past. The prohibition against torture has become one of only four or five “peremptory norms” in international law — norms that apply to all states and which cannot be derogated from by any state, for any reason. The U.S. helped to champion these norms and develop the treaty regimes that support them. The other peremptory norms include the prohibitions against genocide, slavery, crimes against humanity, and piracy. Would we really countenance a debate on the possible effectiveness of genocide or slavery?

The purported moral arguments trotted out in support of torture are in fact fallacious. In the context of the famous ticking time bomb hypothetical, it is argued that it is surely moral to torture one person in order to save the lives of thousands — that the right to life trumps the right to physical integrity and security of the person. The problem of course is that this is a false construct. We will virtually never be in a situation in which we know for certain that a person has specific information which, if obtained through torture, we know will definitely save the lives of a specific set of people. At most we will think that we know that the person might have information, which may help us save some undetermined lives. Like the CIA officials who “knew” that Abu Zoubayidah was a high-level al Qaeda operative, certain to have crucial information, which would absolutely save American lives, when they ordered him water-boarded 83 times – only to discover that he was never even a member of al Qaeda, and that he had no such information. As a matter of morality it is not justifiable to torture one person on the mere possibility that it might save the lives of some unknown people, and a hypothetical that will virtually never occur is no basis for a public policy.

In short, we should reject torture because it is contrary to the fundamental principles underlying the rule of law and our understanding of human rights. It is utterly inconsistent with the values that form the foundation of our democracy. It will degrade us as a people. The experience of countries that have in the past century adopted the use of torture for “national security” purposes, illustrate how the policy seeps into other areas of the judicial system, corroding the integrity of criminal justice and undermining the authority of the state. The proponents of torture are no doubt animated by the desire to protect the people and interests of the United States. What they fail to understand is that the strategic objective of terrorism is to gut our value system and destroy the foundation of our democracy. Engaging in torture only helps them achieve their aims. Frankly, even having the debate is harmful to our national interests. We cannot champion the rule of law and espouse the benefits of democracy while we argue at home about whether to torture people.

The Supreme Court of Canada handed down a judgment relating to detainees in Guantanamo Bay on May 23, holding that the one Canadian detained there may rely upon the Canadian Charter of Rights and Freedoms to obtain some due process protection from the Canadian government.

Overview

The decision has already been reviewed briefly from the perspective of Canadian constitutional law on the University of Toronto and Osgoode Hall law school blogs, so I will not repeat that process here. But the decision has importance from the perspective of international law, and the relationship between international and constitutional law.

I would suggest that the judgment refutes the arguments, voiced most recently by several scholars at the ASIL conference in April, that there are circumstances in the so-called “war on terror” in general, and the treatment of detainees in particular, in which neither constitutional law or international law (whether human rights or humanitarian law) ought to govern the conduct and procedures of the detaining forces.

The Supreme Court held that it is precisely when the agents of the Canadian government participate in conduct and circumstances that constitute violations of international law, that the application of the Charter will be triggered and its protections available to detainees (or at least Canadian detainees – more on that distinction below).

Background

Omar Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in July, 2002. He was one of the few detainees who has been arraigned and who is actually moving towards a trial before the much-disputed Military Commissions in Guantanamo Bay. He has been charged with murder and with conspiracy to commit other acts of murder and terrorism. The murder charge arises from the death of a U.S. soldier during the skirmish in which he was captured.

The Supreme Court decision was in respect of an application by Khadr for full disclosure of all information in the hands of the Canadian government that may be relevant to his case. He had been interviewed and interrogated by officials of the Canadian government in Guantanamo Bay, and the evidence reflected that the Canadian government had shared some of the information so obtained with the U.S.

The importance of disclosure to his case before the Military Commissions is difficult to overstate, as detainees obtain only very limited disclosure from the prosecution. After the U.S. Supreme Court held that the procedures of the Military Commissions were unlawful in its decision in Hamdan v. Rumsfled (2006), Congress promptly passed the Military Commissions Act to provide the legislative authority for most of those same procedures. They included the admissibility of evidence obtained through “coercion”, denying the accused access (even at the hearing itself) to classified evidence, and even excluding the accused from the hearing in certain circumstances. The disclosure obligations on the prosecution are very limited.

There has yet to be a full trial before the Military Commissions, but the conduct of the Combat Status Review Tribunals (CSRT), which were created to determine whether detainees met the definition of “unlawful combatant” for the purpose of prosecution, have been analyzed by a team at Seaton Hall Law School (report here). The denial of the most fundamental rights expected in administrative and judicial proceedings was found to be extreme, and is suggestive of the entire Military Commission process.

Indeed, the D.C. Circuit Court held in Bismillah v. Gates (2007), that the lack of disclosure by the government in judicial review proceedings of CSRT decisions was unconstitutional. But there is little relief in sight with respect to the lack of due process in the Military Commission hearings themselves (the other significant Guantanamo case before the U.S. Supreme Court, Boumediene v. Bush, in which Khadr is also a party, relates primarily to the legality of the provisions of the Military Commissions Act that purported to strip the federal courts of habeus corpus jurisdiction with respect to detainees). Thus any disclosure Khadr can get from the Canadian government will be helpful for his case.

The Decision

Khadr sought full disclosure from the Canadian government, on the grounds that section 7 of the Charter governed his relationship with the Canadian government. Section 7 of the Charter, which provides for the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, was interpreted in the seminal case of R. v. Stinchcombe (1991), as requiring the government to provide the accused in a criminal proceeding, whose liberty interests are thus at stake, with full disclosure of all material relevant to the issues in the case. The government argued that the Charter did not apply to the operations of government officials operating abroad, and that Stinchcombe was thus irrelevant.

In deciding the case in Khadr’s favour, the Supreme Court expanded an exception it had created in R. v. Hape (2007), the case which revised the general principles for Charter application to the conduct of government officials abroad. The basic rule is that the Charter will not apply, due to the deference owed to the laws of the foreign jurisdiction in which the Canadian agents are operating. Such deference, manifested by refraining from any attempt to extend the operation of one’s own laws to conduct within a foreign jurisdiction, is required by the principle of comity in international law. But the Court held in Khadr that where the conduct in which the Canadian agents are participating violates international law (and more specifically Canada’s international law obligations), then the basis for deference is negated, and the Charter will apply to the extent of the participation.

Rather than engage in an independent inquiry into the extent to which conduct in Guantanamo Bay violated international law, the Court simply relied upon the decisions of the Supreme Court of the United States in Rasul v. Bush (2004) and Hamdan v. Rumsfeld(2006) as the basis for finding that the deprivation of habeus corpus, and the procedures established for the operations of military commissions, were in violation of international law and illegal under U.S. law during the period in which Canadian agents interrogated Khadr in Guantanamo.

As such, the Court held that “the regime providing for the detention and trial of Mr. Khadr at the time of the [Canadian interviews] constituted a clear violation of fundamental human rights protected by international law.” (para. 24) Canadian agents participated in that activity, which would have clearly been a violation of Khadr’s Charter rights had it occurred in Canada, and the violation of international law by the U.S. negated the deference that would otherwise prevent application of the Charter.

The crux of Canadian participation in the process was the obtaining information from Khadr and providing it to the U.S. Thus, the Court reasoned, the refusal to disclose the information related to those interviews was a breach of section 7 of the Charter, and Khadr’s remedy is to obtain disclosure of that information, subject to possible privilege claims (the remedy is significantly narrower than that sought, which was disclosure of all relevant information in the government’s possession – it is entirely unclear to me why the order would not at least also include any information that the government received from the U.S. in the course of the interviews and information exchanges related thereto).

Significance

As indicated above, it seems to me that this decision refutes the arguments of some in the U.S. that the treatment of detainees in such places as Guantanamo, Afghanistan and Iraq, should not be subject to either the constitutional law of coalition countries, or international law. Moreover, as discussed elsewhere in these posts, the U.S. has undertaken efforts to ensure that detainees will not even have access to any protections afforded by the local legal system in Afghanistan either (and of course there is no other legal system available in Guantanamo), thus leaving them with virtually no legal protection whatsoever.

These arguments in essence suggest that constitutional law ought not to apply, since the nexus of citizenship, presence within the jurisdiction and so forth, do not exist to trigger its operation in respect of detainees. At the same time, since they are not lawful combatants in an international armed conflict, the laws of international humanitarian law should not apply. But since they are being detained in the “war on terror”, which is an armed conflict of a sort (or so the argument goes), international human rights law ought not to apply either. There is thus, according to these arguments, a legal black hole in which detainees can be afforded the most limited procedural protection and due process, entirely at the discretion of the detaining power.

The Supreme Court of Canada decision in this case, it seems to me, stands in stark contradiction to such arguments, with its holding that Canada’s constitutional protections and remedies will be applied by the Canadian courts precisely when it is determined that international law has been violated. In essence, rather than accepting the notion that these are circumstances in which no law will be deemed to apply, the Court has recognized what is effectively double coverage: international law is recognized as governing the treatment of detainees generally, and when it has been violated in circumstances in which agents of the Canadian government have participated, the Canadian Charter will also be applied to the extent of that participation.

As Sujit Choudhry notes in his initial discussion of the case (in the University of Toronto blog cited above), that will likely inform the Court’s pending analysis of Canada’s obligations to non-Canadian detainees captured by Canadian Forces in Afghanistan. The distinction there, of course, will be that the detainees are not Canadian, and the Court will not have U.S. precedents to rely on in assessing the question of Canadian participation in violations of international law. The issue of Canadian Forces’ compliance with the Geneva Conventions will be squarely before the Court, and it will be interesting to see whether the nationality of detainees will become a significant factor in the Charter analysis.

Thus, while there has been some early criticism of the decision (e.g. the Osgoode Hall blog noted above, which questions why the broader aspects of the government’s participation, and failure to act, in the Khadr case remains largely unexamined), from the perspective of the relationship between international and constitutional law, particularly in the context of the treatment of detainees in counter-terrorism efforts, the case may be viewed as a positive step, and one more blow against the black hole paradigm.

An article in The New York Times on Sunday described how recent letters to Congress from the Department of Justice (DoJ) explain that the government reserves the right to decide on a case-by-case basis what interrogation methods would violate international law standards against mistreatment of detainees. Specifically, the letters from the DoJ state that where harsher interrogation measures are “undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse” then such measures could be determined to be not “outrageous” or otherwise in violation of international standards.

In these letters the the government has focused on the language of Common Article 3 of the Geneva Conventions, which among other things prohibits “outrages upon the personal dignity” of detainees. President Bush issued an executive order Executive Order in July, 2007, which provided that the CIA would comply with specified domestic and international standards against harsh treatment of detainees, with particular reference to Common Article 3. Why the letters do not refer to the standards of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as they have been implemented in U.S. law and incorporated in that form into the Executive Order, is somewhat mystifying.

In any event, the letters explain that for treatment “to rise to the level of an outrage” so as to be in violation of international standards, it “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned”. Prof. Sandy Levinson has already written a nice piece illustrating the tautological paradox inherent in that statement. An ex ante determination by the government that the conduct is permissible would strongly militate against observations that the conduct is, or even ought to be, “universally” condemned.

But the Supreme Court of Israel has already dealt with this issue of ex ante authority for harsher interrogation techniques (and the techniques, as described in the judgment, are far far less harsh than those the CIA is suspected of using today). The Court recognized the security needs of the state, and even examined the old ticking time bomb hypothetical, but it concluded that the government could find no ex ante authority for harsher interrogation practices in the principle of necessity (its full judgment is here). It left open the possibility of the legislature passing laws providing specific authority for such measures, though it noted that democracies have to fight with one hand tied behind their backs in order not to violate their own fundamental values. It also left open the ex post facto raising of necessity as a defence in the event of criminal prosecution. But it could not rely on its own determinations of neccessity to justify, and provide immunity for, harsher interrogation techniques.

That Israel, a country with much greater existential threats, and very real and persistent terrorist attacks upon its territory, can respond so forcefully to government claims that “necessity” requires ex ante authority for harsher interrogation techniques, should be instructive for the purposes of the debate in the U.S.

This is utter rubbish, as there is no conceivable scenario in which the disclosure of when he learned of the decision could be of any value to insurgent forces in Afghanistan, far less impact on any actual operations in Afghanistan. But it is far more dangerous that we increasingly allow our government to use assertions of “national security” and “military operations” considerations to shield their own acts, omissions, and policy decisions from the public eye. The detainee issue involves questions of Canada’s compliance with international law, and is thus of public importance.

There are times when national security requires secrecy, but we must be rigorous in demanding that the government justify with precision their attempts to invoke such secrecy. The media, in particular, should demand explanations of public figures as to how, exactly, the disclosure that is being refused would pose a threat to national security.

The facts

It reviewed the history of Bagram Prison and the extent to which it was in many respects worse than the facility in Guantanamo Bay. There are over 600 detainees being held there, most of whom have not been charged with any offence or been subject to any legal proceeding. Some have been held without charge for more than five years. The average detention is over 14 months long. Moreover, while U.S. authorities claim that all detainees are to be processed and “registered” within fourteen days of admission, and thus accessible to the International Red Cross when it visits, they also conceded that there were exceptions. An IRC confidential report, according to administration sources, claims that it has been denied access to a “warren of isolation cells” in the Bagram facility.

But what is more striking from the article is the account of how the U.S. Defence Department officials applied pressure on the Karzai administration to establish a regime of indefinite detention of “enemy combatants” along the lines of the so-called legal framework of Guantanamo Bay. President Karzai refused to sign the decree drafted with U.S. assistance to authorize and establish the regime.

A 2005 agreement to transfer the bulk of detainees to Afghanistan was the basis for a more detailed plan of transfer, as outlined in an exchange of diplomatic notes. The notes reflect that the U.S. sought to have the Afghanistan government share any intelligence obtained from detainees, to “utilize all methods appropriate and permissible under Afghan law to surveil or monitor their activities following any release,” and “confiscate or deny passports and take measures to prevent each national from travelling outside Afghanistan.”

Finally, the legal basis for the U.S. detention of those being held at Bagram is reported to be unclear. Defence Department officials says that the detentions were authorized by “a note from the [U.S.] attorney general stating that he recognizes that they have legal authority under the law of war to hold enemy combatants as security threats if they choose to do so.”

The Issues

There are a host of legal issues raised by these facts, but I wish to focus more on the aspects of the regime that the U.S. sought to impose on Afghanistan. Here is a war effort that has been rationalized to no small degree by arguments of establishing a democracy in Afghanistan. While it was initially a war of collective self-defence justified by the 9-11 attack and the Taliban regime harbouring the terrorist aggressors, the continued presence and military activity has been justified by notions of freeing Afghanis from the tyranny of the Taliban and establishing a democratic state.

Yet the U.S. seeks to have the Afghani government develop a legal regime like that of Guantanamo, with indefinite detentions of “enemy combatants” without charge, or at best with prosecution by so-called military commissions. Most international lawyers in the world view the system in Guantanamo, of detention without charge, without access to courts of law or the right of habeus corpus, as being in violation of international law, and of the human rights norms that inform all liberal democracies.

More importantly, even those American lawyers who defend the Guantanamo system would not for a moment attempt to justify its application to U.S. citizens. The whole point of Guantanamo, was that it was to deprive non-citizens of the one connection to the U.S. Constitution they would have if held on U.S. soil, i.e. presence within the jurisdiction. Yet here the U.S. is seeking to have Afghanistan impose a similar system as against its own citizens. There is a plethora of law relevant to this issue, but one can begin with the International Covenant on Civil and Political Rights (the ICCPR), the most important human rights convention, to which the U.S. and Afghanistan are both party. The ICCPR, in Article 9, prohibits any arbitrary arrest or detention, requires prompt charges upon arrest, and the right to be brought promptly before a court of law, and to be subject to a trial within a reasonable time. It includes the right of judicial review to determine the lawfulness of one�s detention.

The next issue is that of denying those detainees who are released the mobility rights inherent in the possession of a passport and the ability to leave and return to one�s country at will. Article 12(2) of the ICCPR provides that “Everyone shall be free to leave any country, including his own.” It is a right that is qualified, in that it can be restricted as is necessary to protect national security, so long as such limitations are consistent with other rights in the covenant. But one can only assume that if the detainee is being released, it is because he has been found by the government of Afghanistan not to have committed any criminal offence or violation of the laws of war. Moreover, the U.S. request is not for the national security of Afghanistan, which is the only applicable limitation on the right, but for the security interests of the U.S. So, once again, the U.S. is seeking to have Afghanistan violate the human rights of its citizens, and violate its international law obligations under the ICCPR, for the narrow interests of the U.S.

In sum, the regime that the U.S. sought to impose by way of the agreement for detainee transfer to Afghani control was utterly inconsistent with the democratic values and international human rights that the “nation building” efforts in Afghanistan are rationalized as being designed to cultivate.