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?"
