Friday, May 25, 2018

In a commentary in the Ottawa Citizen, Prof. Kent Roach and alumnus Andrew Stobo Sniderman ('14) analyze the difference between approaches to revelations of torture in Canada and the United States ("How America and Canada are diverging on the sad legacy of torture," May 16, 2018).

Read the full commentary on the Ottawa Citizen website, or below.


How America and Canada are diverging on the sad legacy of torture

By Andrew Stobo Sniderman and Kent Roach

May 16, 2018

Canada recently apologized and gave $10 million to a Canadian tortured by Americans. Meanwhile, the United States just promoted someone who oversaw torture to the post of CIA director.

The political contrast between the Canadian and American approaches is jarring. The differences owe a lot to stronger protections in Canadian law.

In 2002, Gina Haspel ran a CIA black site in Thailand where at least one detainee was tortured with waterboarding, which is a way to make someone feel like they are drowning without killing them. In 2005, shortly after a Senate investigation into torture began, Haspel executed (and reportedly advocated for) an order to destroy recordings of the interrogations.

A dying John McCain urged his colleagues to reject her nomination to become CIA director. He said: “Ms. Haspel’s role in overseeing the use of torture by Americans is disturbing. Her refusal to acknowledge torture’s immorality is disqualifying.”

Despite McCain’s call to conscience, the U.S. Senate confirmed Haspel as CIA director, thereby ensuring the CIA’s record of impunity remains unblemished.

Not a single CIA officer has ever been held criminally liable for any of the systemic torture practised worldwide during the George W. Bush era. This reflects the politicization of the prosecutorial function, which skewed toward U.S. President Barack Obama’s statements that “I’m more interested in looking forward than looking backwards.”

Nor was there ever a successful civil suit against U.S. officials or the U.S. government. American law provided ample and effective shields to protect torturers and the architects of torture policy. Their courts are highly deferential to Congress and the executive when it comes to finding liability in the national security context and come close to viewing such matters as non-reviewable political matters. One after another, lawsuits were dismissed without proceeding to the macabre merits.

For example, Khalid El-Masri tried and failed to sue CIA officials who assisted in his extraordinary rendition from Macedonia to Afghanistan, where he was allegedly tortured. He was eventually released on the grounds that his capture was a mistake. He later noted: “it seems the only place in the world where my case cannot be discussed is in a U.S. courtroom.”

In the end, no U.S. official or institution was held accountable, though it took plenty of dirty hands for all that sweeping under a massive, rancid rug.

By contrast, the Canadian approach is more admirable in large part because of stronger laws that promote accountability. In 1985, the Supreme Court of Canada decided that it had an “obligation” to review rights violations by the executive branch, even if it involved sensitive national security matters. It rejected the U.S. “political questions doctrine,” which counsels the kind of judicial deference which ultimately insulated the Bush administration.

Section 24(1) of the charter gives those whose rights were violated a right to apply for an appropriate and just remedy. The Canadian governments that have settled a number of lawsuits before and after the Omar Khadr case did so in part because of concerns that those who had been tortured with Canadian complicity might receive large damage awards from the courts.

Last year, ministers Freeland and Goodale apologized for Canada’s role in Omar Khadr’s sordid and illegal treatment, and he received a bit more than 25 cents from every Canadian: 10 million taxpayer dollars in all.

This provides some accountability, if not justice. Institutions are more likely to change their behaviour when mistakes are costly.

One of us was involved in the early political discussions bout a possible settlement with Omar Khadr, when the government faced the iron certainty of mounting legal costs in a losing legal battle. What is perhaps most significant, in contrast to the United States, is that the government felt any real legal pressure at all.

Gina Haspel is far from the only American complicit in torture, but a Senate confirmation was one of the few available mechanisms in the United States to hold anyone responsible. To the extent that Gina Haspel is a scapegoat for a more systematic evil, it is because the American legal system catastrophically failed to demand any further accountability.

That Canada has done more to come to terms with some of our torture legacy is as much a triumph of our law as of our politics or any alleged Canadian moral superiority.