Issues

May 2008

Re: “The Ceaseless Search for Justice,” by Noah B. Novogrodsky

Re: “The Ceaseless Search for Justice” by Noah Novogrodsky

I’m pleased to have received a positive review of The Sun Climbs Slow: Justice in the Age of Imperial America from Noah Novogrodsky (“The Ceaseless Search for Justice,” May 2008); however, he frequently falls into the trap of setting up straw men, then slaying them with a flourish. For example, in claiming that I say that the Bush administration’s opposition to the International Criminal Court derives from a worldview that “ultimately results in the Iraq war, torture, the extraordinary rendition of Maher Arar and the imprisonment of Omar Khadr at Guantanamo Bay,” he creates a jumble of his making, not mine, and finishes by misrepresenting my meaning. My discussion of both Arar and Khadr is about what happened in Canada after the U.S. declared its “war on terror.” My subject here is slippage: the undermining effect on the rule of law in other countries when the most powerful democracy on earth breaks long-established rules.

Your reviewer is also off the mark in his critique of the ICC itself. The Rome Statute that underpins the work of the tribunal was finalized in 1998, long before the attacks of 2001 moved terrorism to the front burner of international attention. So why blame the framers of the statute for not including in its list of crimes what only rose to the top of the global security agenda three years later? As for the absence of the crime of “aggression” from the statute, it is widely known that the global community has been trying unsuccessfully to define that political hot potato since the founding of the United Nations, as did generations of 19th-century diplomats before them. (No government has been willing to curtail its military options.) In 1998 it was a feat to reach majority agreement even for the established offences of genocide, crimes against humanity and war crimes. The framers decided then that the parties to the ICC would review the terms ofthe statute in 2010.

Novogrodsky misses a small, but important, point when he complains that the absence of many contemporary great powers from present membership in the ICC “erodes the notion of universal justice.” This ideal has not been eroded (it has been around since the time of the ancient Greeks); rather, it has not yet been achieved. The new court will undoubtedly face many political problems, as Novogrodsky properly confirms. All the same it will begin its work with a strong mandate that has already been agreed to by more than half the countries in the world.

Erna Paris
Toronto, Ontario


Re: “The Ceaseless Search for Justice” by Noah Novogrodsky

Noah Novogrodsky in his review of Erna Paris’s book on the International Criminal Court, The Sun Climbs Slow: Justice in the Age of Imperial America, completely omits the views of a number of jurists, such as John Laughland, who has also written on the subject (“The Ceaseless Search for Justice,” May 2008). Their view is that a so-called “international” criminal court with unaccountable judges judging certain individuals is itself unjust. There are nearly 200 national governments to whom their courts and judges are responsible. But there is no world government, thus no authority to judge these anonymous judges of the ICC. It’s no surprise that their first indictments are for small-scale African warlords while the criminal activity that funds and promotes some of these African resource wars, in the Congo for example, is treated with impunity. Impunity also for the mighty, like Bush and Blair whose invasions of Iraq and Afghanistan were completely in defiance of Nuremberg and its defence of sovereignty against outside aggression. At least Novogrodsky admits that fear of the ICC will do little to deter.

Richard Piper
Lévis, Quebec


Re: “A History of Hypocrisy,” by Regan Boychuk

Re: “A History of Hypocrisy” by Regan Boychuk

There are plenty of interesting theoretical and practical questions one could raise about torture. The great theoretical question is: what is it? The significant practical one is: what is it used for?

Regan Boychuk (“A History of Hypocrisy,” May 2008) accepts the sentimental definition of the United Nations, namely inflicting severe pain or suffering. The context for understanding this notion lies in the changing significance of 19th-century views on cruelty rather than in the actual, ahistorical and common human experience of pain.

In contrast, one might consider the Greeks: they inflicted severe pain on those without a sense of honour or courage because such persons could not be trusted to give evidence on their word. The problem, then as now, is that words exacted after torture were not reliable. When inquisition replaced accusation and confession replaced oath, the meaning of torture changed into an essential constituent of confession: without torture, confessions were dubious. Beginning in the 19th century and continuing into the present, the judicialization of evidence and proof made torture seem cruel as well as ineffective.

This is the context within which the interrogation of military prisoners (as well as illegal battlefield detainees), who by definition were losers of a fight, is to be understood. That is, the meaning of torture has changed again. What might seem to be a revival of a Greek sense of honour is in fact a zero-sum competition of minds. There is no negotiation over evidence. Consequently, torture is no longer understood to be the use of pain to punish or extract information but is a means both of dominating a ³victim² or, more accurately, a loser and, because the logic of torture requires that the loser can make it stop by talking, it is a way of sharing responsibility with him (or conceivably with her).

Accordingly, the condemnation of torture in the modern context of sentimental softness with respect to pain, one must also look at its questionable effectiveness and ulterior purposes, such as punishment or humiliation. In the absence of some serious discussion of, for example, judicial torture warrants, akin to (say) wiretap warrants, it is regrettable that Boychuk can provide us only with smug, and wholly predictable, anti-Americanism disguised as Canadian complicity.

Barry Cooper
Calgary, Alberta


Re: “A History of Hypocrisy” by Regan Boychuk

In “A History of Hypocrisy” (May 2008), Regan Boychuk does a valuable service in reminding us of some very discreditable chapters in Canadian history, above all the story of Ewen Cameron’s mind-control experiments conducted at the Allen Memorial Institute in Montreal. But in bringing this and other stories back to our attention in a passionate way, he also threatens to undermine his own tale by exaggerating the Canadian contribution to torture principles and practices in a more global context.

Mr. Boychuk, for example, raises the Supreme Court decision in a case that he does not name (Suresh). The Supreme Court did issue a potentially troubling finding in adjudicating Suresh, but the wording is significant. The court said that in “exceptional” circumstances, deportation to a country that practised torture might be required in the interests of Canadian national security. These exceptional circumstances were not defined and it needs to be said that in neither the case of Suresh nor of any other individual held under security certificate proceedings have they actually been sent back to face torture. In fact, one reason why security certificate cases become stalemated in Canada and end up in a nether world of lengthy legal proceedings and detention or virtual house arrest is precisely because of the power of the United Nations convention against return to torture.

To suppose that current CIA interrogation techniques have a lineage that can be easily and directly traced back to Canadian experiments is to distort the story and to perversely over-claim our role. Instead, what we now know is that U.S. interrogation techniques, especially those conducted by intelligence agencies, have many wellsprings. To suggest that the most significant are those traced back to mind-control experiments over a half century ago in Montreal, or even to Operation Phoenix 40 years back in Vietnam, is to overlook the more powerful and more sustained desire to match and exploit the interrogation techniques known to be used (and exported) by the U.S.’s principal Cold War protagonists, the Soviet and Chinese intelligence services. Here we enter the morally relativistic world captured so well by John Le Carré in The Spy Who Came in from the Cold. As Le Carré’s fictional character “Control” put it, just because your motives are benign doesn’t mean that you can afford to be less ruthless than your enemy.

Canada may seem intent on turning a blind eye to the likes of Omar Khadr in Guantanamo — a case oddly enough not mentioned by Boychuk. But as the O’Connor commission found, government agencies were not complicit with the U.S. in the rendition of Maher Arar to Syria, although their sloppy handling of bad intelligence contributed to his terrible plight. The Iacobucci inquiry will eventually pronounce on the cases of three other Canadians held and tortured in the Middle East. Let’s see what Iacobucci says. We may learn more details about other troubling cases, such as those of the Sudanese Canadian Abousfian Abdelrazik.

None of this adds up to Boychuk’s finding that “with today’s war on terror, our complicity with U.S. torture has only grown.” It’s not complicity, that old bugbear of Canadian nationalist and anti-American sentiment, but our own lack of moral bearing that may be at stake. It may be hard, from time to time, to resist the weight of a U.S. superpower intent on prosecuting the war on terror according to the lights of whatever administration is in power. But not that hard. What is really difficult is to define our own moral standards when upholding both national security and fundamental justice, and then to stick to them. It’s a made-in-Canada problem, whether we are talking about historical instances or current policy in Afghanistan, or security certificate cases, or Canadian Security Intelligence Service liaison arrangements with foreign services. Boychuk, citing John Holmes a little unfairly, may be right in suggesting a Canadian tendency to find “ways around one’s principles.” But the real issue is finding one’s principles.

Wesley Wark
Ottawa, Ontario


Regan Boychuk Responds

To varying degrees, both the prominent security analysts who took issue with my look at Canada’s role in U.S. torture (“A History of Hypocrisy,” May 2008) make excuses for American torture, dismiss Canadian complicity and characterize criticism of such crimes as “anti-American.”

University of Toronto professor Wesley Wark (Letters & Responses, see above) invokes the moral authority of a French novelist in arguing the U.S. couldn’t afford not to torture. He also suggests we shouldn’t be bothered by Canada being the only western state to allow the return of an individual to face torture, because it is limited to undefined “exceptional” circumstances. The only problem is that, just as there are no exceptions to international law’s prohibition of slavery, the prohibition of torture is absolute—no matter how exceptional the circumstances.

University of Calgary professor Barry Cooper (Letters & Responses online, see above) dismisses the “sentimental softness” of international law’s definition of torture (ratified by 145 states) and claims “the meaning of torture has changed.” In light of this alleged reality, Cooper would have us debating how and when to use torture, not “smugly” condemning its every instance. But if anything has changed with regards to torture, it is simply the development of a new understanding that the brutal impact of psychological torture differs little from that of the traditional physical variety.¹

The considered opinion of these two experts notwithstanding, an overwhelming majority of Canadians agree torture should never be allowed.²

In dismissing Canadian complicity, Wark claims “we now know” that Chinese and Soviet torture techniques were more powerful influences on the CIA brand of torture than the innovations in sensory deprivation funded and coordinated by the Canadian government at McGill University throughout the 1950s. This is simply false, as shown in the second section of my essay. If Professor Wark wishes to argue otherwise, it will take more than an assertion. He might also want to explain why—if the Canadian contribution was so insignificant to CIA torture—the U.S. included reservations in its 1994 ratification of the UN Convention Against Torture designed, in part, to exempt sensory deprivation.³

As for their suggestion that criticizing torture is “anti-American,” I can’t claim to understand what they are trying to imply: is it that my essay somehow demonstrates my hatred for apple pie and baseball, or is it that torture is just as hallowed an American tradition?

Regan Boychuk
Calgary, Alberta

Notes:
1. Metin Basoglu, Maria Livanou, and Cvetana Crnobaric, “Torture vs. Other Cruel, Inhuman and Degrading Treatment: Is The Distinction Real or Apparent?” Archives of General Psychiatry, volume 64, number 3 (March 2007), pages 277–85.
2. “World Citizens Reject Torture, Global Poll Reveals,” BBC World Service, October 19, 2006, page 3.
3. Alfred W. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror (New York: Metropolitan, 2006), pages 100–02.


Re: “Not So Different After All,” by Edward Grabb

Re: “Not So Different After All” by Edward Grabb

I must admit that I was not greatly surprised to read that Professor Edward Grabb liked Professor Reginald Stuart’s new book Dispersed Relations: Americans and Canadians in Upper North America (“Not So Different After All,” May 2008). Both academics agree that Canadians and Americans are similar on most dimensions. Stuart writes that “statistically, the two peoples seem much the same.” That depends on which statistics you mean. Arguing about Canada and the United States is like arguing about the Bible: anyone can find a chapter and verse (or in this case, a statistic or policy outcome) to suit their ideological fancy. But the most interesting discussions about the two countries concern themselves not with determining whether we are “essentially” the same or different, but with patterns and the explanation of those patterns. Why is church attendance twice as high in the U.S. as in Canada? And why has religiosity become so important in American politics but much less so here in Canada? Why is the U.S. murder rate three times the Canadian rate? Why do Americans incarcerate each other at a rate nearly six times the Canadian rate? Why do Canadians have a universal system of health insurance and the Americans not? Why are Americans flirting with a black and a female presidential candidate when Canadian political leadership remains starkly male and white? Why are 13 percent of Canadian parliamentarians foreign-born while the proportion in the U.S. House of Representatives is just two percent? Why are Americans so much more successful at producing popular culture the world wants to gobble up? Why do Americans carry more consumer debt than Canadians? Why do Americans elect so many presidents with military backgrounds while Canadians elect lawyers? Why are Americans risk takers and Canadians relatively risk averse? The businesses my firm Environics has counselled for the past 38 years have been interested in understanding the cultural factors in each country that could cause a product or advertising message to fly or flop. For Canadian conservatives, emphasizing Canadian ties to the United States makes sense. For others, emphasizing Canada’s progressive distinctness (while benefiting from the U.S. economy) is the shoe that fits. For those who want to sell widgets on both sides of the border, understanding where the differences lie and why is the holy grail. Readers seeking the case for essential similarity will find Stuart’s book as good a read as any. For those who wish to see the contours of the two societies sketched from a number of perspectives (mostly academic, not “popular”), try the third edition of David Thomas and Barbara Torrey’s Canada and The United States: Differences that Count.

Michael Adams
Toronto, Ontario


Re: “Bold Prescription for Our Cities,” by Anne Golden

Re: “Bold Prescriptions for Our Cities” by Anne Golden

You gotta think something is happening when Anne Golden, president and CEO of Canada’s largest corporate lobby is blessing the call for creating three new provinces out of Vancouver, Toronto and Montreal by Alan Broadbent, the CEO of a private investment company (“Bold Prescription for Our Cities,” May 2008).

I should be delighted. Well, I’m not. Here’s why. First, Vancouver, Toronto and Montreal already have exceptional status. As every city councillor in British Columbia, Ontario and Quebec will tell you, there are rules for VTM and rules for everyone else. You don’t see Ottawa, Hamilton or Thunder Bay with city charters, do you? But this isn’t what really irritates me. What curdles is the smugness. These are folks who are running the country. Why are they writing and book reviewing like academics from Antigonish?

This says to me:

They have no real idea of just how desperate it is becoming for cities everywhere. In my city, our medical officer of health is threatening to close down all the city’s beaches unless we improve our sewage treatment, our stadium is literally falling down and we’re stealing from the province’s meagre infrastructure funding to pay for snow removal — and that’s just for hors d’oeuvres.

Yes, this mess is about 19th-century governance as Broadbent and Golden make clear, but it’s also about the municipal price index rising three times faster than the consumer price index. No electorate will allow politicians to raise taxes three times faster than the consumer cost of living. So cities are getting hammered from two directions simultaneously: out-of-control operational costs (try lining up 1,000 buses each morning at the pump) and a federal government that has the lion’s share of the taxes and no interest in cities. Why else would Jim Flaherty, the finance minister, say “he’s not in the business of fixing potholes”?

Either he doesn’t understand or he does and doesn’t care. My guess is Anne Golden and Alan Broadbent know this and that’s why they’re writing books. The other conclusion is the same as for Flaherty: despite their erudition, neither understands the gravity of the situation. In five years, there will be no more foreign wars because the 80 percent of North Americans who live in cities will be struggling to cope with environments and opportunities that are unravelling as fast as the subprime markets are today — that’s where the MPI/CPI trend line is taking us.

Clive Doucet
Ottawa, Ontario


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