Andrew Duffy, The Ottawa Citizen, Saturday, February 16, 2008

Months after his arrest on March 28, 2002 in Faisalabad, Pakistan, Abu Zubaydah -- a senior al-Qaeda lieutenant -- was flown to a secret CIA prison.

He was strapped to an inclined board by CIA interrogators. His mouth and nose were covered with cellophane and water was forced into his throat to simulate the terror that a drowning man experiences.

CIA director Michael Hayden admitted earlier this month that Mr. Zubaydah and two other al-Qaeda suspects were subjected to this kind of "waterboarding" in the year that followed the Sept. 11 terror attacks.

It was necessary, he told the Senate select committee on intelligence, because U.S. officials knew little about the terrorist organization and feared another attack.

After being subjected to waterboarding, a practice that human rights groups regard as torture, Mr. Zubaydah co-operated with his U.S. interrogators.

Among other things, Mr. Zubaydah told them he knew Ottawa's Mohamed Harkat, who was then an investigatory target of the Canadian Security Intelligence Service (CSIS).

According to CSIS, Mr. Zubaydah identified Mr. Harkat "by description and activity" as operating a Pakistan guest house for mujahedeen travelling to Chechnya.

Partly on the strength of that information, two federal cabinet ministers signed a security certificate that declared Mr. Harkat an al-Qaeda agent.

Mr. Harkat was arrested in December 2002, and ever since, the federal government has been trying to deport him to Algeria as a threat to national security.

Mr. Harkat's lawyer, Paul Copeland, believes Mr. Zubaydah -- and Canada's failure to inquire about his treatment -- should be central issues in the government's case against his client. What's more, Mr. Copeland contends that CSIS' willingness to accept Mr. Zubaydah's statement without regard for his waterboarding evinces something that should trouble all Canadians: that its spy agency "turns a blind eye to torture." Mr. Copeland was so disturbed by what he considered CSIS' intentional disregard for human rights in the Zubaydah case that he lodged a formal complaint with the spy agency's federal watchdog in November 2005.

That complaint triggered a two-year investigation by the Security Intelligence Review Committee (SIRC), which this week made public one version of its final report. That report offers a detailed -- and at times critical -- account of the spy agency's attitude toward torture as practised by other security and intelligence organizations.

The presiding member of the review committee, lawyer Aldéa Landry, wrote: "Although I do not find evidence of a 'total lack of concern' on the part of CSIS regarding evidence obtained by torture, I find that at the time this complaint was made CSIS did lack specific policies aimed at eliminating any possible Canadian complicity in torture." Ms. Landry found that CSIS' concern focused on the impact that torture might have on the reliability of information, rather than how their use of that intelligence could violate Canada's treaty obligations to reject torture.

"I find that CSIS is concerned with human rights, but nevertheless uses information obtained by torture," Ms. Landry concluded in the public version of her report.

A secret version of her report made other, undisclosed findings.

To many observers, however, the watchdog's public report raised almost as many questions as it answered: Does Mr. Zubaydah's waterboarding constitute torture in the eyes of CSIS? Will CSIS and federal lawyers continue to use his evidence? Does CSIS encourage torture by using information from mistreated suspects like Mr. Zubaydah? Alex Neve, secretary general of Amnesty International Canada, said CSIS cannot claim to be concerned with human rights if it continues to use information drawn from tortured suspects.

We believe that when a police or intelligence agency willingly receives information that may have been obtained under torture, that is indirectly encouraging more torture," he said.

"If those who torture find there is no market for the information they obtain under torture, that perhaps becomes one small piece of eradicating torture. But when they find a ready audience of intelligence officials, diplomats and military authorities willing to receive that information, and make use of it, then of course they're going to continue." CSIS spokeswoman Manon Bérubé noted that agency director Jim Judd has denounced torture as "morally repugnant." "CSIS does not knowingly use information which may have been obtained through torture," she insisted.

CSIS has used information from Mr. Zubaydah against both Mr. Harkat and Montreal terror suspect Adil Charkaoui, both of whom are about to begin new hearings on the merits of their security certificates.

The Supreme Court ruled last year that the process used in their previous hearings was fundamentally unjust.

Mr. Neve contends the government cannot again rely on the "tainted" Zubaydah evidence because it was obtained through waterboarding, a practice that clearly fits within the treaty definition of torture. The UN Convention Against Torture defines torture as any act that's intentionally inflicted to cause "severe pain or suffering, whether physical or mental" in order to gain information.

In the U.S., there's heated debate about the practice. President George W. Bush said Thursday that he plans to veto legislation passed this week by the U.S. Senate to ban the use of waterboarding by CIA interrogators.

Leading Republican presidential nominee John McCain, who was tortured as a prisoner during the Vietnam War, has described waterboarding as "very exquisite torture." (After the Second World War, the U.S. prosecuted as war criminals several Japanese soldiers who waterboarded American prisoners.) Canada's official position on waterboarding, however, remains decidely murky.

The Citizen contacted officials in Public Safety Minister Stockwell Day's office, the Department of Foreign Affairs and CSIS to understand whether they consider waterboarding to be torture.

CSIS' Ms. Bérubé said the agency is not in possession of a legal opinion as to whether waterboarding constitutes torture. Both Ms. Bérubé and John Brent, a spokesman for Mr. Day, referred the question to foreign affairs, but officials there did not return phone calls.

Amnesty's Alex Neve said the Canadian government has to take a stand against waterboarding -- and reject evidence from Mr. Zubaydah.

"We should not see Canadian government lawyers putting that kind of information in front of judges," he said.

During the 2004 hearing to determine whether it was reasonable to declare Mr. Harkat a danger to national security, lawyer Paul Copeland challenged the reliability of the Zubaydah evidence.

Mr. Copeland cited earlier reports by Human Rights Watch, the New York Times and Washington Post that suggested Mr. Zubaydah had been coerced, and quite possibly tortured, into giving evidence while in U.S. custody.

Federal lawyers, however, told court there was no "no evidence" to support the charge.

Mr. Copeland argued the government was in a position to seek that evidence, but didn't want to know the truth. He was further distressed, Mr. Copeland said, by the subsequent testimony of 'P.G.,' a senior intelligence analyst for CSIS, who said he had never in his career taken steps to understand whether information received by the agency has been obtained through the use of torture.

P.G. told court that the key to intelligence analysis is corroboration, and that even information obtained under torture can be useful if verified through other sources.

P.G.'s answers were consistent with the position taken by former CSIS director Ward Elcock, who testified before the federal inquiry into the treatment of Maher Arar.

Mr. Elcock told the Arar inquiry that CSIS will use information it suspects is the product of torture if it can be corroborated from other sources.

In his report, Justice Dennis O'Connor noted that CSIS agents had travelled to Syria while Mr. Arar was in prison to receive information he had supplied to military intelligence officers. CSIS, Judge O'Connor concluded, did not adequately assess whether that information was the product of torture or whether it could be relied upon as accurate.

CSIS shared that information with other agencies without flagging it and twice relied on it "to the prejudice" of Mr. Arar, Judge O'Connor found.

Mr. Arar was detained by U.S. authorities at New York's JFK Airport in September 2002. After the RCMP gave false information to U.S. authorities that portrayed Mr. Arar as an Islamic extremist, he was flown to Syria where he was imprisoned for 10 months and tortured.

In his final report, Judge O'Connor recommended a series of policy changes inside CSIS and the RCMP to ensure Canada was not complicit in torture.

CSIS' legal counsel has reported that some of those recommendations have been acted upon.

In a January, 2007 memo to the spy agency watchdog, CSIS reported that it had "partly implemented" the recommendation that it never share information with a country when there's a credible risk the intelligence will contribute to the use of torture. The agency has also "partly implemented" a recommendation that CSIS consider the human rights implications of accepting information from countries such as Syria.

The SIRC's Ms. Landry urged the spy agency to implement all of the O'Connor recommendations.

CSIS' Ms. Bérubé noted that both Judge O'Connor and SIRC have made it clear that collecting foreign intelligence is essential to protecting Canada from terrorist threats. "CSIS will carefully consider the SIRC report in its continuing effort to improve how it deals with this difficult issue," she said.

Lawyer Paul Copeland remains unsatisfied with the SIRC ruling on his complaint.

He has not been allowed to read CSIS' response to his complaint and he contends some fundamental issues remain unanswered. For one thing, Mr. Copeland said, he wants to know whether CSIS continues to have an information-sharing agreement with Syrian Military Intelligence, the agency responsible for Mr. Arar's torture.

Three other Canadians, Abdullah Almalki, Ahmed El-Maati and Muayyed Nureddin, also maintain they were tortured in a Syrian military jail for answers to questions that could only have come from Canadian agencies.

A second federal inquiry is now probing the role that Canadian officials may have played in the detention and mistreatment of those three men.

Mr. Copeland said he's disappointed the federal government has failed to define a position on waterboarding.

"Someone has to make a decision as to what is torture and what isn't torture," he said. "Clearly, someone has to tell Canada's national security agencies what is torture."