a number of Canadians. In September 2002, Maher Arar—a Canadian who is also Syrian by virtue of that country’s refusal to accept renunciations of citizenship—was arrested while transiting through New York’s JFK Airport. After twelve days of questioning, he was taken to Syria, where he was imprisoned.
Stephen Toope, an independent fact-finder appointed by a Canadian judicial inquiry, determined conclusively that Arar was tortured while in Syrian custody, including by being beaten on the palms and wrists with an electrical cable and being confined for ten months to a cell some two metres long, one metre wide and slightly more than two metres high. Toope concluded:
The effects of that experience, and of consequent events and experiences in Canada, have been profoundly negative for Mr. Arar and his family. Although there have been few lasting physical effects, Mr. Arar’s psychological state was seriously damaged and he remains fragile. His relationships with members of his immediate family have been significantly impaired. Economically, the family has been devastated.
Toope then added, with reference to Arar’s battle to clear his name: “Mr. Arar strikes me as a person with what one might describe as moral courage.”
For more than three months, the Canadian government resisted pressure to establish an inquiry into possible involvement by the RCMP or Canadian Security Intelligence Service in the rendition and torture of Maher Arar. However, we now know some of what happened.
In September 2004, an internal RCMP investigation revealed that at least one of its officers learned of U.S. plans to deport Arar before Arar was flown to the Middle East but did not immediately convey this information to other officers. The same investigation concluded that, after Arar’s arrest, RCMP officers decided not to travel to New York City to question him, because no RCMP aircraft was available and commercial flights were supposedly too expensive.
Finally, in testimony before the commission of inquiry that eventually was established, the senior officer in the investigation into Arar said the RCMP suspected that he was being tortured in Syria but nevertheless decided to share with the Syrians dubious information the force had about him.
In September 2006, the inquiry commissioner, Justice Dennis O’Connor, concluded that the decision to remove Arar to Syria was “very likely” based on inaccurate and misleading information from the RCMP. He also refuted any doubts about Arar’s innocence: “I am able to say categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constituted a threat to the security of Canada.”
Along with the renditions, the United States was, and maybe still is, operating clandestine prisons. In November 2005, the Washington Post reported that the CIA ran a series of covert prisons, so-called black sites, in a number of foreign countries, including in Eastern Europe. According to the Post, “Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.” The parallels to these secret prisons—such as the Soviet Gulag and Latin American “disappearances”—are obvious, as is their international illegality. Secret prisons contravene the prohibition on arbitrary arrest or detention set out in the Universal Declaration of Human Rights and numerous multilateral treaties. In September 2006, after months of denials, George W. Bush finally admitted the existence of the secret prisons—and declared that they had been closed.
At the same time, the Post reported that “CIA interrogators in the overseas sites are permitted to use the CIA’s approved ‘Enhanced Interrogation Techniques,’ some of which are prohibited by the U.N. convention [on torture] and by U.S. military law.” The techniques include “waterboarding,” whereby a detainee is repeatedly submerged under water and made to believe that he or she will be drowned. In October 2006, a radio interviewer asked U.S. vice president Dick Cheney: “Would you agree a dunk in water is a no-brainer if it can save lives?” The vice president replied, “Well, it’s a no-brainer for me.”
Unfortunately, it appears that there has been a degree of Canadian complicity in the practice of extraordinary rendition, above and beyond the Arar affair. In December 2005, it was reported that seven airplanes linked to the CIA had recently used Canadian airports more than fifty-five times, including for refuelling stops in Newfoundland and Nunavut. Many more CIA flights have presumably crossed Canadian airspace, given that the shortest flight lines from the United States to Europe or the Middle East cross this country’s vast territory.
When asked about the matter, then prime minister Paul Martin said that he had “checked with the deputy prime minister, checked with the officials in charge, and there are absolutely no indications that anything of that kind is occurring.” For her part, the then deputy prime minister, Anne McLellan, said she was investigating the questionable flights. But she also asked for patience: “We are now in the process of following up on what we know about any of those, but as you can imagine, 55, it takes time to determine whether there’s anything unusual in relation to any of those named flights.”
It is likely that Martin and McLellan were simply trying to punt an embarrassing story past the federal election campaign that was then taking place. But it is also possible that they or their officials knew—or chose not to know—that the CIA flights were occurring, and that individuals on board were being involuntarily transferred to secret prisons or foreign intelligence agencies notorious for torture. If so, the politicians’ evasive language could be rooted in concern for their personal responsibility, not just under Canadian law, but also in foreign courts or even the International Criminal Court. For such actions would, again, constitute complicity in torture. Now that Martin and McLellan have ceased to be ministers and no longer benefit from the immunities attached to high office, they might think about avoiding foreign travel, at least to human-rights-respecting states.
I do not want to overstate the legal situation; these are only possibilities. At the same time, it is disturbing that such possibilities have been allowed to arise. There were—and still are—two simple and entirely appropriate responses to the U.S. practice of using extraordinary rendition and secret prisons: refusing to share intelligence that might be used for such purposes, and denying CIA planes permission to use Canadian airports or airspace until the matter has been properly investigated and resolved.
STANDING UP FOR HUMAN RIGHTS
There is no question that Canadians abhor torture. The deliberate infliction of severe pain and suffering is a particularly heinous crime. Indeed, the prohibition on torture, along with other fundamental human rights and rules of international humanitarian law, was established by a generation that knew all about pain and suffering. They had lived through two world wars, the rise and fall of fascism in Germany, Italy and Japan, and the Holocaust. Their commitment to preventing human suffering finds expression in the first three stanzas of the UN Charter of 1945:
We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained…
Today, one of the key questions facing Canadians concerns whether we still stand by that commitment, at a time when our superpower neighbour has been torturing people and outsourcing torture to other states. Was our commitment to prevent human suffering meant only for good times, not for those times when the going gets rough?
In December 2004, George W. Bush visited Ottawa and Halifax. Shortly afterwards, I had the opportunity to chat with a senior Canadian bureaucrat who had been involved in the trip.
“In
