Exceptional Circumstances

by Bartleman, James;

  Why did you make the October Crisis the centre of action of the novel? The crisis occurred more than forty-five years ago.

  The action builds up through parts one to three to the climax in part four that focuses on the Crisis of 1970. I then use my prerogative as a novelist to alter the actual October Crisis with two key fictional changes (and several inconsequential ones such as changing the names of the FLQ cells and the murdered minister) to look at how that crisis would have turned out if the Canadian government had had at its disposal the powers it acquired in the post-9/11 world. In the first fictional change, the terrorists kidnap the American consul general in Montreal rather than the British trade commissioner; in the second change, the police possess the authority to use information, in exceptional circumstances, obtained through torture to help its investigation as long as the torture is not carried out in Canada — an authority the director of CSIS now possesses.

  I move on to address the following questions as the story unfolds. What if the American government insisted that Canada accede to a demand to exchange FLQ prisoners in jail for the life of the American consul general? What if the police captured a FLQ militant who was a dual citizen? What if the RCMP, either through malice, incompetence, or design, sent that citizen back to the country of her birth to be tortured and questioned?

  In the fictional version of the October Crisis, the United States puts pressure on Canada to send Sanchez back to Colombia to be interrogated under pressure to reveal the location of the kidnapped American consul general. To many people, this scenario is simply too incredible to be believed, even in a novel. In their view, the United States is the champion of liberty and democracy around the world and would never ask a close ally to do such thing.

  Perhaps the United States of the 1970s would not have, but post-9/11, the United States lost its moral compass. Remember Abu Ghraib prison in Iraq where prisoners were tortured and murdered? The secret black sites around the world where prisoners were taken to be tortured and to be “disappeared”? The secret renditions and the ongoing blight of Guantanamo? This egregious behavior has been documented in the 600-page summary of an exhaustive report by the Senate Intelligence Committee on the counterterrorism activities of the CIA. Even President Obama has admitted the CIA tortured prisoners post-9/11.

  The CIA has maintained that its use of “enhanced interrogation techniques” were needed to deal with the threat to the United States by terrorists in the post-9/11 world. What is the truth?

  The Senate Intelligence Committee concluded that the use of torture failed to provide any significant information to the CIA.

  Why did you pick a dual-national Canadian, someone who immigrated to Canada with her parents at the age of ten, to play the role of international terrorist?

  The Canada of today is multicultural with growing numbers of new Canadians coming from areas of instability and conflict. The first generation are dual nationals like the fictional Sanchez. Others are second-generation, born in Canada unhyphenated Canadians. The overwhelming majority of first- and second-generation Canadians are model citizens, but well over a hundred have left Canada to join terrorist organizations like Al-Qaeda and the Tamil Tigers and travel abroad to fight in places like Syria, Algeria, Somalia, and Afghanistan. There is nothing unusual per se about Canadians volunteering to fight in foreign wars. Thousands signed up on the Union side in the American Civil War, a battalion was raised in Canada to fight on the government’s side in the Spanish Civil War and an unknown number enlisted in the American armed forces during the Vietnam war.

  The concern today is that Canadians going abroad to fight with Jihadists might come home to attack targets in Canada. To deal with the problem, in June 2014, Parliament approved Bill C-24 (Amendments to the Citizenship Act) authorizing the government to strip Canadian citizenship of dual citizens (naturalized or by birth) for specified terrorist/security/treason grounds. And it isn’t just deportation to countries of birth. It also applies to Canadian-born dual nationals who have a second nationality for some reason other than birth: i.e. parent’s nationality, spouse, etc. It is the first time ever in Canadian law that there is a possibility for a Canadian-born citizen to lose Canadian citizenship. And the first time ever that any Canadian citizen can lose citizenship on grounds other than fraud.

  The issues are among the most difficult faced by Canada since it became a country and merit more debate than they have received. I thus wanted Luc to sit beside Sanchez on the long ride to Bogota and ask her how it was possible for someone to seek to destroy the country which had welcomed her and given her a Canadian passport. I also wanted Luc to explore the moral implications of sending someone back to their home country when it is reasonable to believe that person would be tortured. What does that do to the moral compass of a country and its citizens?

  Gloria Sanchez is a fictional Canadian-Colombian national sent back in a fictional account to her home country to be questioned under torture. In real life, has anything similar been done by Canadian law enforcement authorities?

  Yes. In September 2002, the U.S. Border Service detained a dual Canadian citizen born in Syria, Maher Arar, between flights at John F. Kennedy Airport in New York. Acting on erroneous information supplied to it by the RCMP — whether by design, malice, or incompetence is not known — the Americans sent him to his country of birth to be interrogated under torture to determine if he was a member of Al-Qaeda. Following a public outcry, the Canadian government made representations to the Syrian government seeking his release. Almost a year after his imprisonment, and ongoing torture, he was allowed to return to Canada.

  Have there been cases of other dual-national Canadians tortured abroad by their countries of birth on the basis of information provided by Canadian officials?

  Yes. According to Amnesty International, Abdullah Almalki, a Canadian citizen born in Syria, was arrested, jailed, and tortured on the basis of erroneous information provided by Canadian officials. Abdullah’s case was examined in a judicial inquiry along with two other cases of Canadian citizens tortured abroad with Canadian complicity: Ahmad Abou El-Maati (tortured in Syria and Egypt) and Muayyed Nureddin (tortured in Syria). The inquiry was headed by former Supreme Court Justice Frank Iacobucci. His report, in October 2008, enumerated numerous ways that Canadian action and inaction had contributed to their torture and other human rights violations. The government neither apologized nor offered redress as they did for Maher Arar.

  Could such a thing happen again?

  In my view, it could. The government has even provided a fig leaf of legitimacy to such practices. For example, on June 25, 2010, the government circulated to interested departments and agencies a “Framework for Addressing Risks of Mistreatment in Sharing Information with Foreign Entities.” Mistreatment is defined in the document as “torture or cruel, inhumane or degrading treatment or punishment.” It condemns the use of torture “by any foreign entity for any purpose,” spells out Canada’s binding international obligations to prevent the use of torture in any circumstance but then authorizes deputy ministers and agency heads to violate these principles in exceptional circumstances. Finally, it directs ministers “to operationalize,” i.e. draw up their own individual torture directives to suit the specific needs and mandates of their departments and agencies.

  The following is the relevant excerpt from the directive sent to the director of CSIS by the minister of public safety on December 10, 2010. Note: The ministerial guidance works in both directions. In addition to being allowed to use information obtained through torture from foreign agencies, CSIS is also authorized to share information with foreign agencies, in exceptional circumstances, even if likely to lead to torture abroad.

  The first and foremost responsibility of the state and its government is protecting its citizens. The current threat environment and the number one national security priority of the government of Canada has been, and will remain for the foreseeable future, the fight against international terrorism. In this context, it is cri
tical that information be shared quickly and widely among those with the mandate and responsibility to disrupt serious threats before they materialize.

  The government of Canada relies on CSIS to provide security intelligence to various federal partners, and other key stakeholders such as provincial and municipal authorities, in order to assist with protecting national security and public safety. The service is expected to work in unique circumstances, and occasionally with international agencies that do not respect Canada’s commitment to human rights. The CSIS must nevertheless always ensure that its actions do not appear to condone the torture or mistreatment of any individual, and that its interactions with foreign agencies accord with this principle.

  In exceptional circumstances where there exists a threat to human life or public safety, urgent operational imperatives may require the Service to discharge its responsibility to share the most complete information available at the time with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment. In such rare circumstances, it is understood that it may not always be possible to determine how a foreign agency obtained the information that may be relevant to the threat. It is also understood that ignoring such information solely because of its source would represent an unacceptable risk to public safety [emphasis added].

  Therefore, in situations where a serious risk to public safety exists, I expect and thus direct the Service to make the protection of life and property its overriding priority, and share the information, properly described and qualified, with appropriate authorities.

  The RCMP, CSEC and the Canadian Forces among others, have either drawn up or are in the process of drawing up similar directives to share information tainted by torture.

  In your opinion, does the government’s decision to traffic in information derived through torture affect the balance between national security and personal liberties?

  I leave it the readers to make up their own minds. The United Nations, Amnesty International, and the press have made up theirs. The United Nations Committee against Torture writes: “The committee expresses its serious concern about the ministerial direction to the Canadian Security Intelligence Service (CSIS) which could result in violations of article 15 of the Convention against Torture in the sense that it allows intelligence information that may have been derived through mistreatment by foreign states to be used within Canada; and allows CSIS to share information with foreign agencies even when doing so poses a serious risk of torture, in exceptional cases involving threats to public safety….”

  The Toronto Star says, “As the notorious case of Maher Arar demonstrated, Canada’s police and spy services have been burnt before when they red-flagged our citizens as persons of concern to other countries’ security agencies. Arar was detained in the United States on the basis of inaccurate information from Canadian police linking him to terrorists and was bundled off to Syria where he was tortured.”

  And Amnesty International Canada has written to the government to make the following points: Under international human rights law, torture is never permitted; the ministerial direction violates Canada’s obligations as a signatory to the Convention Against Torture; article 15 of the UN Convention Against Torture specifically prohibits the use of information derived through torture as evidence in any proceeding; the government’s actions “disregard and undermine the findings and recommendations” of the inquiries into the Arar, Almalki, Nureddin, and El-Maati cases.

  Does Canada really intercept and collect military and diplomatic communications of other countries?

  Yes it does — as do most technologically advanced countries. Canada avowed for the first time the existence of the Communications Security Establishment Canada (CSEC) in testimony given to a Senate Committee examining Canada’s security and intelligence community in testimony on September 22, 1983, by minister of State for External Relations, the late Jean-Luc Pepin. Pepin told the senate that the mandate of the CSEC was “to provide to the government … in support of Canada’s foreign and defence policies … information gathered about foreign countries by intercepting and studying their radio, radar and other electronic transmissions.” He also revealed that CSEC worked closely with the NSA, the giant American National Security Agency based in Fort Meade, Maryland; the GCHQ, the British Communications Headquarters in England; and the smaller intercept agencies of Australia and New Zealand. He confirmed that the partnership dated back to the post–World War II era and was commonly known as “The Five Eyes.” This information is now publicly available. In the intervening years, much more information on the operations of CSEC has become available on the internet.

  Longshaft mentions to Luc that following the next major terrorist incident, the prime minister would authorize CSEC to launch a vast program of electronic spying on literally everyone in the country. Please comment.

  That has happened. In the wake of 9/11, the NSA launched a program of mass surveillance of people, sweeping up the emails, telephone calls, and Skype conversations of millions of people every day around the world that in some respects went beyond the excesses depicted in Orwell’s 1984. As confirmed by Edward Snowdon, the American whistleblower, CSEC (and the other Five Eyes partners) enthusiastically joined in the effort. CSEC has admitted that it collects metadata on randomly selected Canadians. The spy agency insists that its actions are lawful. The question is, however, whether the law itself violates the rights and freedoms of Canadians. In some quarters, such as among younger Canadians, digitally active Canadians and civil liberties groups, there has been strong outrage leading to court challenges.

  In your novel you refer only to the RCMP and not to the Canadian Security Intelligence or CSIS. Why is that?

  In the period 1966 to 1970, when the major developments in the novel take place, the RCMP Security Service, a top-secret branch of the RCMP, was responsible for dealing with threats to national security, including terrorism. In the aftermath of the October Crisis, the RCMP Security Service was involved in a number of scandals in which the rights and liberties of Canadians were violated. Accordingly, in 1994, the government disbanded the RCMP Security Service and transferred its responsibilities to a newly created civilian agency called CSIS. The counter-terrorism approaches of the two organizations, however, continued to overlap with the RCMP viewing the phenomenon from a law-enforcement perspective and CSIS from a preventative viewpoint. Rivalry and friction between the two agencies has impeded the fight against terrorism over the years.

  You were the analyst for International Terrorism in the bureau of Security and Intelligence in the Department of External Affairs in the fall of 1970. Did you participate in the Interdepartmental Task Force managing the October Crisis?

  Yes, in a junior capacity. The background is as follows. During my posting to Colombia in the late 1960s, a NGO with Canadian connections, called Miles for Millions, asked me officiate at the opening of one of its feeding stations providing food to poor rural campesinos in a remote region. Because the feeding stations were located deep inside rebel-held territory, I travelled by Colombian army helicopter, protected by a soldier who cradled a machine gun in his arms while his legs dangled from an open door as he scanned the terrain below, to a small hilltop landing strip. Unsmiling, heavily armed soldiers greeted me as I scrambled out, and marched me to the kitchen. A crowd of former rebels who had turned themselves in under an amnesty program waited patiently with their families for me to cut a ribbon and make a speech before they could eat their meal of roast pork and black beans.

  The visit piqued my interest in Third World revolutionary movements. When I was posted back to headquarters in February 1970, I became the analyst for international terrorism in the Department’s Intelligence Analysis Division. As such, I prepared the assessments for the Task Force managing the October Crisis and filled in as a staff officer backing up the senior officers making the decisions. Later on, I was a member of the interdepartmental comm
ittee managing the creation of CSIS out of the RCMP Security Service.

  Did you encounter gamines during your posting to Bogota?

  Yes, almost every day. I would see them wandering the streets at all hours of the day and night, hungry and ragged with no place to go for help. It was heartbreaking to see them sleeping under old newspapers on the steps to the embassy and nearby office buildings in the cold and drizzle of Bogota’s mornings. Some of the little boys and girls were as young as four or five. Some were children put on a bus in some remote part of Colombia and told a relative would be waiting for them when they reached Bogota. All too often there was nobody at the bus terminal to meet them. Others were children from the barrios, abandoned by parents who couldn’t feed them. Another wretched scene, one I included in the novel, was the sight of mobs of people chasing and beating gamines along the sidewalk outside the embassy for snatching watches or picking pockets.

  Is Diego Rojas an actual historical figure? Was he a defrocked Colombian priest who took up arms, and joined the ELN? Was he killed in a battle with government soldiers?

  Diego Rojas is loosely based on Camilo Torres, a charismatic, defrocked Colombian priest and exponent of Liberation Theology who joined the ELN and was killed during an attack on an army patrol in February 1966. I first heard of Torres when I was posted to Canada’s embassy in Bogota as a junior officer in February 1968. Many of my friends were Colombian university students and young professionals. They mourned the loss of someone they believed could have brought justice to their country.