The potential negative consequences cannot be overstated
Posted: May 25, 2011 Filed under: Security | Tags: canada, CSIS, Security, Security Certificates Leave a comment »Last week, Jim Bronskill with the Canadian Press reported on the findings in an annual review conducted by the CSIS inspector general, which he obtained via the Access to Information Act. According to that annual review (published in November 2010), CSIS has continued to fail in ensuring the accountability standards set by the Supreme Court of Canada in 2008 in Charkaoui v. Canada (Citizenship and Immigration), (2008) 2 S.C.R (“Charkaoui II”) are met. Under the Court’s ruling in Charkaoui II, the agency is required to, inter alia, “retain all operational notes, electronic intercepts, and other investigative material”. As reported by the Canadian Press:
During her review, CSIS inspector general Eva Plunkett asked the service for original, hard-copy notes cited in agency reports.
“In a number of cases the service was unable to locate hard copies of the operational notes,” Plunkett wrote.
After further examination, CSIS determined that its own reports were wrong and that no notes had been taken to support the information in them, she found.
The spy service also had trouble figuring out the process for referring to original notes — a problem Plunkett considered “significant.”
“One must know where to look to determine whether operational notes exist and where to find them for retrieval and future reference,” says her review.
Disturbingly, Plunkett found problems relating not only to record-keeping but reporting as well, and noted that “the rate of errors continues to grow”. Again, from the Canadian Press:
Once errors — even small ones such as incorrect interview dates — are introduced, it can result in wrong information being shared or forming the basis for operational decisions, her review says.
“The potential negative consequences that errors of this type could have on service investigations, and on individuals affected by the use of service information, cannot be overstated.”
Plunkett says accuracy is essential if CSIS is to make fair and balanced use of the information it collects.
“When errors of this nature do come to light, they have a highly detrimental effect on the service’s credibility both with Canadians, the judicial system and with other intelligence agencies.”
This report comes as troubling news to the BCCLA. As we discussed in our most recent post, mistakes made by CSIS can have devastating consequences for individual Canadians. Given the highly secretive nature of intelligence gathering and sharing, Canadians need to have confidence that CSIS is doing its job carefully, accurately, and in an accountable fashion. Accuracy in data collection and document retention is crucial in ensuring accountability, as we saw in the Almrei security certificate case. In light of the intensive intelligence-sharing between CSIS and foreign governments, it goes without saying that there is a great need for CSIS to exercise caution and care in carrying out its duties.
CSIS plays an important role in protecting our national security, but its work must be accomplished in a responsible and scrupulously careful manner. The inspector general’s review serves to remind us that concerns regarding the agency’s practices are still active and require attention.
Secret documents, secret review
Posted: June 17, 2010 Filed under: Afghan Detainee Hearings, Torture | Tags: afghanistan, canada, documents, parliament, Security, Torture 2 Comments »Yesterday, a detainee document agreement was struck between Government and two of three Opposition parties. The “pact” comes a full month and a half after Peter Milliken, Speaker of the House, ordered Government to resolve the disclosure issue. Recall that when Speaker Milliken made his order, he gave the House two weeks to work with Government to devise a system of disclosure, and threatened to find the Government in contempt if no agreement was arrived at by that time. The House apparently didn’t hold Government to this deadline, perhaps with the hope that an agreement allowing for greater access and transparency would be struck, but as it stands now, the document deal is fairly unsatisfying.
The agreement creates an ad hoc committee composed of four members, one each from the four parties. This committee will have access to review, in secret, all of the detainee documents previously requested by Parliament in December 2009, and determine which of these documents can and should be released to the public and other members of Parliament. The agreement also creates a Panel of Arbiters, composed of “three eminent jurists”. While the ad hoc committee seems to hold the final say in what documents are relevant for disclosure, it is the Panel of Arbiters which is responsible for determining whether documents should be protected by national security privilege, attorney client privilege, and Cabinet privilege. And according to the agreement, the decisions of the Panel of Arbiters with respect to disclosure is final and unreviewable. Importantly, this ad hoc committee does not appear to have the power to conduct an actual investigation into the contents of the documents; its role looks to be strictly limited to reviewing the documents for relevance and more general disclosure.
Accordingly, the present agreement is unlikely to get to the heart of the matter. Its snags are serious, and have been criticized not only by the NDP, but also by legal experts who have gone so far as to call the deal “a mess”. The provisions around the “Panel of Arbiters” are one point of concern. This panel of retired judges appears to have the final say on which documents will be released and whether they will be censored or not, but there has been no word about whether their decision-making will be made public. The ban on investigating advice issued by government lawyers as well as internal Cabinet communications is another problematic point given that information about knowledge of torture may well be contained in these files. At the end of the day, the House committee tasked with investigating Canada’s conduct with respect to detainee transfers will only have a limited and censored set of materials to work from.
With the NDP boycotting the investigation, the ad hoc committee will consist only of representatives from the Conservative party, the Liberals, and the Bloc Quebecois.
This latest development in the ongoing struggle for detainee document disclosure serves as a sad reminder of how little has been accomplished since the issue was first brought to the Government’s attention by Amnesty and the BCCLA in 2002. The government has consistently waffled on the question of document disclosure. This has included stymieing efforts by the MPCC to get to the truth, though the Commission’s been hearing from key military officials and members of government since May 2009.
We here at the BCCLA maintain that this issue has been shrouded in secrecy for long enough. A secret review that rests in the hands of a body of retired judges and is subject to the proposed restrictions strikes us as problematic, and inimical to any legitimate truth-seeking. For those reasons, we would reiterate our call for a public inquiry —one where a Commission would have full and complete access to the relevant documents and witnesses.
Where there’s a will…
Posted: June 15, 2010 Filed under: Afghan Detainee Hearings, Torture | Tags: afghanistan, detainee hearings, mpcc, Torture Leave a comment »Today the MPCC heard again from Nicholas Gosselin, who last appeared before the Commission this April. As readers will recall, Gosselin was the DFAIT officer who discovered implements of torture during a site visit and interview conducted in November 2007. Perhaps the most surprising part of Gosselin’s April testimony was the fact he heard eight previously undisclosed (or undisclosed to the MPCC, at any rate) allegations of torture between November 2007 and May 2008. The nature of these allegations were reviewed today, and ranged from threats of sexual abuse and death to physical abuse with cables and sticks.
Shockingly, transfers were resumed in February 2008 despite these allegations. This fact might be less alarming if protective measures increased following the resumption of transfers. It appears, however, that the opposite occurred—the number of interviews with detainees declined markedly after transfers were resumed.
This fact was taken up by the Interim Chair, Glenn Stannard, who stated that he was having a “hard time” understanding why DFAIT would not have done the “same diligence” after the resumption of transfers to ensure the prevention of abuse. He asked Mr. Gosselin if he had received instruction from his superiors not to conduct interviews. Mr. Gosselin responded in the negative, but also stated that were it “his choice”, he would have maintained regular individual interviews. He stated repeatedly that there was a “will” to conduct interviews, but that other efforts, including reconstruction, took precedence.
Perhaps the most tense moment in today’s hearing arose when the Commission suggested that the Canadian public had been misled into believing that site visits, together with individual interviews, were being conducted diligently to ensure that acts of abuse were not ongoing following the resumption of transfers. Commission member Berlinquette stated: “If we were led to believe there were interviews being conducted, and you’re telling us that interviews weren’t, it’s hard for us to understand that.”
Indeed it is.
After the close of Mr. Gosselin’s testimony, the MPCC adjourned. The Commission is not expected to reconvene until the fall, though with the latest squabble over document production, we may see some happenings in the MPCC front over the summer, so stay tuned.
Top military brass knew of Richard Colvin’s concerns
Posted: June 14, 2010 Filed under: Afghan Detainee Hearings, Torture | Tags: afghanistan, canada, colvin, detainee hearings, dfait, documents, duschner, mpcc, Torture Leave a comment »Today the MPCC is hearing testimony from Gabrielle Duschner, a key link between DFAIT and the Canadian Forces. Ms. Duschner worked for DFAIT as a political advisor to CEFCOM (the Canadian Expeditionary Forces Command), headquarters to Canadian military missions overseas. This morning, she affirmed that there was a general awareness and concern about the treatment of prisoners in Afghan jails prior to April 2007.
Richard Colvin in November 2009 / Toronto Star
But the big story of the morning concerned several May 2007 CEFCOM memos, which had only been recently produced to the MPCC and were put into evidence this morning. As we’ve reported previously, Ms. Duschner was originally scheduled to appear before the MPCC two months ago. Her testimony was delayed at the last minute after the DOJ informed the MPCC that the government had still had not disclosed documents relevant to her testimony. Apparently, these documents included Canadian military memos calling for diplomat Richard Colvin’s dismissal or censure over the frank nature of his reporting on the risk of torture faced by transferred detainees. “Recent messages drafted by Mr. Colvin have illustrated a pattern of reporting that risks compromising Canada’s military and diplomatic position in Afghanistan,” one memo read. According to another memo, “CEFCOM is concerned that [Colvin's] continued employment in Kabul as a political counselor and deputy to the [Head of Mission] could become a liability to the government of Canada’s interests if left unchecked”.
One of the memos was drafted by Mike Carter, a subordinate of Ms. Duschner, who was employed by DFAIT but seconded to CEFCOM. Ms. Duschner had read the memo and recalled “some speculation among staff that [Colvin's] tenure should come to a conclusion.” Nonetheless, Ms. Duschner said that she disagreed with the report’s conclusions.
These memos show that not only was the Canadian military – and those in its very highest levels of command – aware of Mr. Colvin’s warnings, they were deliberately trying to silence them. Indeed, as one memo recommended: “Mr. Colvin be engaged directly in DFAIT and reminded of his responsibilities as a diplomat and boundaries as a reporter”.
UPDATE Prism Magazine is live-streaming the MPCC hearings today and tomorrow. Watch it here.
UPDATE Some more items of interest from Ms. Duschner’s testimony yesterday. Readers may recall that Richard Colvin had testified about an interagency meeting he had attended in Ottawa concerning the detainee issue. Mr. Colvin informed both the MPCC and Parliament that he had told the group that if Canada was concerned about torture, they should stop transferring detainees to Afghan authorities. According to Mr. Colvin, when he made that statement, the notetaker put down her pen and stopped taking notes altogether. It turns out that this notetaker was Ms. Duschner, who informed the MPCC yesterday that she felt justified in putting down her pen because no one else in the room seemed interested in Mr. Colvin’s recommendation on how to stop torture.
Omar Khadr update
Posted: June 10, 2010 Filed under: GTMO | Tags: GTMO, guantanamo, khadr, united states Leave a comment »As Omar Khadr’s August trial date approaches, his Edmonton lawyers Dennis Edney and Nathan Whitling have applied for judicial review of the government’s actions following the Supreme Court ruling in January 2010 in Khadr v. Canada.
Omar Khadr / Canwest
As readers of these pages will recall, the Supreme Court found that Canadian conduct in this case had violated the principles of fundamental justice, but the Court declined to expressly order the government to seek Mr. Khadr’s repatriation out of concern about overstepping the powers of the executive. It cited evidentiary concerns, the “limitations of the Court’s institutional competence”, and the separation of powers as the basis for the Court’s ruling in favor of declaratory relief.
The government of Canada was thus faced with a Supreme Court judgment that affirmed that it had violated the constitutional rights of one of its citizens, but the government’s only response was to send a diplomatic note to the U.S. requesting that the information collected from Mr. Khadr be disregarded. (We, of course, have maintained that sending a demarche cannot cure the violation of Mr. Khadr’s constitutional rights.)
Mssrs. Edney and Whitling have proceeded to the Federal Court to request a judicial review of the government’s action and whether it was an appropriate response to the Supreme Court’s ruling. As the Ottawa Citizen reports, they have expressed particular concern about the absence of impartiality exercised by the government in handling Mr. Khadr’s case: in refusing to repatriate Mr. Khadr, the government did not appear to engage with the Supreme Court ruling “with an open mind.” Mssrs. Edney and Whitling have also stated that their client was not consulted as to alternative remedies, a basic procedural right.
The request for review is particularly timely in light of the fact that the diplomatic note issued by Minister Rob Nicholson has landed in the hands of a military judge in Guantanamo who is apparently disregarding it. This effectively renders moot Canada’s so-called remedial action, leaving the breach of Mr. Khadr’s constitutional rights ongoing and unremedied.
UPDATE: Maher Arar’s online magazine, Prism, is featuring an online broadcast of an interview with Dennis Edney and Amnesty International’s Alex Neve, discussing Mr. Khadr’s case.
Here we go again
Posted: June 9, 2010 Filed under: Afghan Detainee Hearings | Tags: detainee hearings, documents, mpcc, paul champ 3 Comments »In a move that looks to further obstruct the progress of the MPCC inquiry, the federal government has applied for a judicial review of a summons for documents potentially crucial to the MPCC’s investigation.
The documents at issue are detainee transfer records dating from May 3, 2007 to June 12, 2008. They are believed to contain risk assessments considered by commanders in Afghanistan when decisions to transfer were made. The military is already in the process of gathering these documents, it appears.
The Commission had requested the disclosure of these documents as early as November 2008, but their whereabouts only came to light during BCCLA counsel Paul Champ’s cross-examination of Major Gagnon on April 27, 2010. Major Gagnon revealed that the documents are in Afghanistan, “basically all in a big storage bin all mixed with other administrative” documents. He said it might take “a year or more” to catalogue them. On April 29, the Chair of the Commission issued a summons to Maj. Gagnon to produce the documents.
The government applied for a judicial review of that summons on May 28. This latest move by the government to block access to relevant documents is obviously troubling.
First, it seeks to withhold information from the MPCC that is essential to its inquiry. The MPCC is mandated to investigate what the military police “knew or had the means of knowing” about the risk of torture facing detainees. The government’s argument as to why the MPCC should be denied access to these documents is premised on some rather peculiar reasoning: essentially, the DOJ’s position is that it shouldn’t have to turn over these documents because it’s already concluded that the military police had no means of knowing what was in those documents. But that’s precisely the question the MPCC is supposed to answer, and it needs these materials to determine – as a threshold matter – what information was available to the CF in Afghanistan to begin with.
Second, this application for judicial review will unduly delay an inquiry that has been hampered from its inception by stall tactics. The MPCC hearings were intended as a vigorous inquiry into serious allegations involving Canada’s complicity in torture. Delays like the one represented by this judicial review serve only to divorce the proceedings from the urgent substantive issues they were meant to grapple with.
