Deportation, Torture, and their cost to Canada

Torture is something that we are uncomfortable with. Collective ickiness or, perhaps, compassion prevents us from torturing sans emotion. But, when faced with terror, or in The Globe and Mail's (editorial board) case, cost, we look for ways to pinch our noses and send the bad people away from Canada.

This is wrong. Deportation to torture is wrong.

Torture has practical drawbacks (lies, distracting clues, encouraging enemies and retaliation against our own forces), but these fall outside the discussion of deportation to torture. We are not going to actually torture "them". We just want to get rid of inconvenient people that the we are told are dangerous. The government believes they are dangerous, but cannot prove or convict of a crime, even a crime of planning to commit a terrorist act.

But maybe the government and we, as citizens, can invoke our sense of self-preservation and send the bad guys to countries where they may face torture. Perhaps, deportation will allow us to avoid this dilemna:

...When suspected foreign terrorists are identified, they are taken before a court and, if found a danger to the nation's security, are ordered deported. But if they can make a credible case that they will be tortured in their home country, it's almost impossible to deport them. The result is they may be held in jail without criminal charge for several years. This is repugnant, but releasing those deemed a danger to national security seems untenable.

The Globe and Mail picks up on the judgment of the United Kingdom's Law Lords that said that deportation is OK as long as the government receives assurances from the state known to torture. They quote favourably:

“Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties,” said an immigration tribunal's ruling, cited approvingly by the Law Lords. “It is barely conceivable, let alone likely, that the Algerian government would put them at risk by reneging on solemn assurances. Nor is there any reason to suppose that the British government would turn a blind eye if they did.”

Of course, the fact that assurances are sought makes clear that the country is likely to torture. Moreover, once a bad person is out of the Canadian court system he or she is out of mind and it is unlikely that the Canadian government would be willing to do much to protect them, given that it has failed to protect a juvenile Canadian citizen (Omar Khadr) suspected of "terrorist" like behaviour from torture and other breaches of international human rights and humanitarian law by the United States.

A "good faith assurance," based on "sound objective evidence," plus a method of verification makes the pill of complicity in torture easier to swallow. We are also told that deportation is a good approach because it avoids indefinite detention without trial. It also saves $600,000 per suspect (security certificate holder).

The easy thing, the cheap thing, the politically feasible thing is to deport the "baddies." But, deportation to torture is wrong because it makes all of us complicit. It undermines our civil society, the rule of law and Canada's vision of a constitutional democracy. Torture leaves scars on the victims, but torture scars those of us who awake to realize that we just passively let torture happen, those of us who expect to be protected by a reponsible government, by those of us who have to explain to our children how torture returned in the 2000s after the hard work of our veterans, volunteers, politicians and every day citizens of the 1900s.

One last disturbing point arose in the article where the Globe accused the Courts of "los[ing] their will" to hold individuals on indefinitely on security certificates. This statement is understandable coming from a victim upset about a criminal getting out of jail after serving their time. But, the Globe is a bit off base to claim suggest that Courts have an obligation to hold individuals on insufficient evidence forever. The men out on limited release under strict parol conditions have not been convicted, tried, or even presented with the evidence of any wrong doing.

The way out of the quandary

From Monday's Globe and Mail

February 22, 2009 at 10:24 PM EST

Canada should follow Britain's example and seek to deport foreign terror suspects, even to states that use torture, but only after officials at the highest levels – the foreign minister or prime minister – extract assurances of humane treatment from their counterparts in the other countries...

King Abdullah of Jordan gave his assurance to former prime minister Tony Blair in the case of Abu Qatada, an incendiary preacher, and the British Law Lords said that assurance passed legal muster. Mr. Qatada is appealing the ruling to the European Court of Human Rights. (The Law Lords' ruling also permits the deportation of two other terror suspects to Algeria.) ...

Here is the box: When suspected foreign terrorists are identified, they are taken before a court and, if found a danger to the nation's security, are ordered deported. But if they can make a credible case that they will be tortured in their home country, it's almost impossible to deport them. The result is they may be held in jail without criminal charge for several years. This is repugnant, but releasing those deemed a danger to national security seems untenable.

Canada appears to prefer the untenable to the repugnant. Its courts have lost their will to hold these suspected terrorists in jail. A half-dozen suspected al-Qaeda members have been released in the past few years by the Federal Court of Canada. The civilian spy agency CSIS spends nearly $600,000 to keep a round-the-clock eye on a single one.

The Law Lords' ruling challenges the conventional wisdom of Amnesty International and Human Rights Watch that if you have to ask for an assurance, it won't be worth the paper it's written on. Some Canadians may share the agencies' concerns; after all, the United States has said it asked Syria for a promise that Maher Arar would not be tortured. (An independent report by Stephen Toope, now president of the University of British Columbia, found that he was.) But the Law Lords stress that the assurance needs to be made in good faith. Further, there must be a sound, objective basis for believing the assurance; and there must be an agreement on how to verify whether the assurance was kept.

The Law Lords noted that Algeria wants international acceptance as a normal civil society, and that close and growing business and security ties exist between it and Britain. “Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties,” said an immigration tribunal's ruling, cited approvingly by the Law Lords. “It is barely conceivable, let alone likely, that the Algerian government would put them at risk by reneging on solemn assurances. Nor is there any reason to suppose that the British government would turn a blind eye if they did.”

The purpose of Canada's security-certificate system is to deny a place in this country to those who put its security at risk. Britain's example shows that it is possible to do so within democratic norms.