Extraordinary assistance

The CBC is reporting today that U.S. flight logs show Canadian involvement in CIA extraordinary rendition flights:

Reprieve, based in London, said a chartered plane long suspected of transferring prisoners repeatedly stopped in Gander, central Newfoundland, on its way to Afghanistan from Guantanamo Bay in 2004.

In the United States, “extraordinary rendition” was used to apprehend and detain foreign nationals suspected of involvement in terrorism. The practice, as described by the ACLU:

The suspect would be arrested and secretly transferred to prisons run by foreign intelligence agencies in countries known to torture, or to CIA-run “black sites.” Once detained, these men experienced unspeakable horrors — often kept in squalid conditions, many of them faced interrogation under torture, including waterboarding, electrocutions, beatings, extreme isolation, and psychological torture.

Maher Arar is the most famous Canadian victim of the extraordinary rendition program. Based on faulty intelligence provided by the Canadian government, the United States arrested and detained him during a stopover at a New York airport, and delivered him to torture in Syria.

Maher Arar, like other extraordinary rendition victims, was forcibly disappeared via a private flight chartered by the CIA. And according to the evidence obtained by Reprieve, some of these rendition flights stopped in Canada before continuing on to CIA black sites in Lithuania. As reported by the CBC:

“The evidence suggests that Canada, by virtue of its location, was a very vital, logistical point for the extraordinary renditions program. That is evidence more and more clearly as time goes on,” said Crofton Black, who is with Reprieve.

Black said that’s verified by flight logs provided by the FAA, one of the 28 aviation authorities that received an access to information request from Reprieve.

This evidence of Canadian involvement in the CIA’s extraordinary rendition program is enormously important.

Torture and enforced disappearance are crimes under international law. And international law makes clear that states can be held responsible for aiding and assisting other states in their violations of international law, if they know that their aid and assistance is facilitating the misconduct. What that means here is if Canada was aware that the planes at issue were part of the CIA’s extraordinary rendition program (which were delivering individuals to enforced disappearance, torture or other ill-treatment), Canada should not have allowed its territory to be used to facilitate these flights.

There have long been concerns about Canadian complicity in facilitating rendition flights. In 2005, Amnesty International Canada wrote to then-Minister of Transport Jean Lapierre requesting information, following media reports that rendition flights were landing in Newfoundland. Receiving no response, Amnesty then followed up in January 2006 with then-Minister of Public Safety Anne McLellan. But as Alex Neve, Secretary General of Amnesty International Canada, told the CBC today:

“We could not get a clear answer at all, including, whether or not Canada was specifically reviewing these flights with Canada’s specific human rights obligations in mind. We couldn’t even get confirmation about that.”

As Amnesty noted in 2006, the Canadian response to these concerns was distressingly subdued. Unfortunately, not much has changed in the intervening years. While the Council of Europe has conducted inquiries into alleged CIA activities in Europe, and a number of European states have investigated the role of their own government officials in assisting the CIA’s rendition program, no similar inquiries have taken place in Canada.

Canada needs to clarify what has happened here, or risk being itself accused of violations of international law. This is not an academic concern: in the face of continued American refusal to provide a proper accounting for the CIA’s extraordinary rendition program, groups such as the Open Society Justice Initiative have launched litigation against states thought to be complicit in the CIA’s activities.

The CIA’s extraordinary rendition program represents some of the worst excesses of the “global war on terror.” In light of this most recent report of potential complicity, Canadians need to know what role — if any — their government played in facilitating renditions.


Anti-smuggling, or anti-Charter?

The Canadian Association of Refugee Lawyers (CARL) may be only a little over a month old, but they’ve already published a terrific paper on the unconstitutionality of Bill C-4, the so-called “anti-smuggling” bill.

Readers of these pages will know that C-4 (and its predecessor C-49) has been of significant concern to the BCCLA, and the subject of criticism from many quarters. CARL’s paper lays out in detail the various ways the proposed legislation in Bill C-4 is unconstitutional. It’s worth reading in its entirety, but here’s a teaser:

In presenting Bill C-4 to Parliament, the Government of Canada has expressed its confidence that the bill is Charter-compliant and constitutional. The Government has chosen not to articulate any basis for its confidence. Since recent judicial pronouncements from the Supreme Court of Canada directly contradict the Government’s position, it is our opinion that this confidence is misplaced. The drafters of the bill have paid insufficient attention to the carefully worded doctrines that the Supreme Court of Canada has developed to express the basic principles of our Constitution. The government has haphazardly cast an unconstitutionally harsh, wide and arbitrary net in order to deter and punish human smuggling. The consequences inflicted on these individuals will be dramatic, painful and undeserved. It is our hope that the unconstitutionality of the Bill will be recognized before it is enacted as law. If this hope is dashed, it is our hope that it will be recognized by judicial authorities. However, it is our worry that, should we need to rely on the Courts to provide the needed remedy, much hardship will be endured in the interim.

Download the paper here.


46 percent

Today, the BCCLA and Amnesty International Canada renewed calls for the Canadian government to convene a public inquiry into the Afghan detainee scandal, following yesterday’s publication of a report by the United Nations Assistance Mission in Afghanistan (UNAMA) documenting widespread and systematic torture in Afghan detention facilities. Our public statement is available here. We also sent a letter to the Minister of National Defence, requesting that Canada confirm the actions it plans to take in response to serious issues raised by the UNAMA’s findings.

We’ve been waiting for the UNAMA to make its report public for some time now, ever since NATO announced in early September that it would be suspending all detainee transfers to Afghan authorities, following its advance review of the UNAMA report.

The full report is available here. Some key points, from our reading of the report:

  • The UNAMA’s team found “compelling evidence that 125 detainees (46 percent) of the 273 detainees interviewed who had been in NDS detention experienced interrogation techniques at the hands of the NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.”
  • The UNAMA team found that children were tortured by NDS officials.
  • Of the 89 detainees who were transferred to Afghan security forces after being captured by international forces, 19 of them were tortured in NDS custody, and three in ANP (Afghan National Police) custody.
  • The methods of torture used are consistent with what was reported by detainees to Canadian diplomats making their first post-transfer monitoring visits in 2007.
  • The UNAMA “definitively ruled out the possibility of collective fabrication — where a group of detainees would share stories of real or rumoured abuse and, either spontaneously or by design, arrive at and deliver a common account.”

The UN’s findings are disturbing, to say the least. In 2005, the Canadian government announced its prisoner transfer policy in Afghanistan. Given the well-documented, prevalent, and systematic use of torture in Afghan prisons, the BCCLA and Amnesty called on the government to cease transfers to Afghan authorities. While the government has insisted on maintaining this policy, it has, over the years, occasionally suspended transfers for brief periods, though always ultimately resuming the practice after receiving assurances from the Afghan government that it would no longer engage in torture. And each time, we have asked: how can Canada trust these assurances? How can Canada know that it is not transferring individuals to risk of torture, in clear violation of international law? How can Canada be justified in insisting that there is no substantial risk of torture, in the face of the information gathered by its own diplomats and numerous reports from international authorities? How can Canada know that Afghan authorities will stop torturing prisoners?

The distressing fact of the matter is that Afghan authorities never stopped torturing prisoners, notwithstanding repeated suspensions of transfers and repeated commitments to respect basic human rights.

More than five years after we first raised concerns about torture in Afghan prisons, after years of litigation in the Federal Court and two complaints before the Military Police Complaints Commission, and after years of government insistence that its detainee transfer policy did not and would not expose individuals to risk of torture, the United Nations is still finding “compelling evidence” that 46 percent of the NDS detainees they interviewed were tortured.

46 percent.

How’s that for substantial risk?


Whispers and innuendo

Today, the BCCLA wrote to the Minister of Justice and the Minister of Public Safety about a recent government leak of purported intelligence information implicating two Canadians in a terrorist plot. The contents of the leak, the timing of it, and the government’s public statements in response to the whole affair all raise serious concerns, including whether the Canadian public can truly be informed via selective leaking of cherry-picked information.

In August, La Presse, a Montreal newspaper, published an article describing an alleged conspiracy between Adil Charkaoui and Abousfian Abdelrazik to place an explosive device on an aircraft. The alleged conspiracy was outlined in a document leaked to La Presse, which purported to be a 2004 report from CSIS summarizing conversation reportedly intercepted in 2000.

Messrs Charkaoui and Abdelrazik should be familiar to readers of these pages. Mr. Charkaoui spent six years living under a security certificate, during which time he was subjected to detention, house arrest, and constant surveillance. The security certificate against him eventually collapsed because the government refused to provide either him or the court with sufficient evidence to justify the certificate. Mr. Abdelrazik is a Canadian citizen who was arrested in Sudan at the request of the Canadian government, and whose efforts at returning home to Canada were repeatedly stymied by the government until a Federal Court declared that Canada was violating Mr. Abdelrazik’s constitutional rights. Neither man has ever been charged with any terrorism-related offences.

The allegations in the La Presse article were quickly seized upon and reported by the national media. And in response to these reports, Immigration Minister Jason Kenney stated:

I read the protected confidential dossiers on such individuals, and I can tell you that, without commenting on any one individual, some of this intelligence makes the hair stand up on the back of your neck. I just think people should be patient and thoughtful and give the government and its agencies the benefit of the doubt.

Thus, having failed (for years) to make out a case against either Mr. Charkaoui or Mr. Abdelrazik in the courts, government is now seizing on the selective leaking of decade-old intelligence information to make its case against these men in the media.

Our letter goes into considerable detail about our various and serious concerns, which we won’t repeat here, but we do make one point that bears re-emphasizing: Leaks of this sort — decontextualized and selective — do little by way of providing a complete and truthful account of events. Instead, selective disclosure only leads to concerns that the story is actually being manipulated.

Read the entirety of our letter here. We also commend you to some very thoughtful commentary on this leak. Professor Reg Whitaker provides an informative account of previous similar leaks in his analysis. Professor Craig Forcese thinks that this leak raises some interesting questions that the government should be asking.


A hit, a very palpable hit

Good news from the Federal Court this morning. As those of you who have been following our work at the Military Police Complaints Commission (MPCC) may recall, the Department of Justice filed a series of applications for judicial review in the Federal Court  before the close of evidence in the Afghan Public Interest Hearings. These applications sought to limit the MPCC’s jurisdiction to make certain factual findings and recommendations, as well as its access to relevant documents. The BCCLA and Amnesty International opposed these applications, and the Federal Court agreed with us.

The applications

The DOJ’s first challenge was to one of a series of summonses issued by the MPCC to the government for production of documents related to the military police’s role in detainee handling and transfers. By way of background, the Afghan Public Interest Hearing has been repeatedly delayed and hampered by ongoing disputes over document production from the Department of Justice. Indeed, it was the DOJ’s delay and apparent recalcitrance in providing the Commission with necessary documents which led to the establishment of the public hearing, in the first place.

The summons at issue here was sent by the MPCC following the disclosure of certain documents to the BCCLA and Amnesty pursuant to an Access to Information Act request. These documents consisted primarily of communications between Canadian officers in Afghanistan and civilian officials in Canada concerning the decision to suspend detainee transfers in November 2007. None of these documents had been previously produced to the MPCC, despite their clear relevance to the MPCC’s investigation. A flurry of correspondence between the MPCC and the DOJ followed. The Federal Court’s recap:

The Commission counsel reviewed the documents and wrote to counsel for Attorney General on April 8, 2010. Commission counsel was of the view that the documents collected in response to the Access to Information request would also be relevant to the subject matter of the Commission’s inquiries, and found it “inconceivable” that these documents, many of which were addressed or copied to individuals who were summonsed as witnesses, could have been considered irrelevant to the matters under inquiry.

The Department of Justice and the MPCC exchanged further letters on the issue. In a letter dated April 9, 2010, counsel for the Attorney General indicated that the documents were not produced “because they were not communicated to any military police members, including the subjects of the complaint and there is no evidence that they were otherwise available to them”. In other words, the Attorney General takes the position that it is the government’s prerogative to determine whether the documents were shared with Military Police members or were “within their means of knowing”. In response, MPCC counsel strongly disagreed with the position and wrote: “We believe it is the Commission’s mandate to determine wehtehr or not there is evidence that documents were communicated to, or available to, Military Police members. This cannot be determined by government officials looking at the face of the documents and deciding not to produce them.” This is clearly the nub of the dispute between the Attorney General and the Commission.

(Internal citations omitted; emphasis added.)

Eventually, government witnesses were ordered to appear before the Commission to explain how documents were being reviewed and produced. Following their testimony, the MPCC issued a new summons, requiring the government to produce several additional categories of documents, including a category broad enough to capture the documents received by the BCCLA and Amnesty through its ATI request. The government challenged the summons in Federal Court.

The DOJ’s second application alleged that the MPCC refused to hear the DOJ’s motion seeking a ruling on “standards of conduct.”

In an earlier ruling, the Federal Court had held that the subjects of the Afghan Public Interest Hearing would only be responsible for information that was within their individual “means of knowing”. The Federal Court, however, did not provide any definition or further elaboration on the meaning of “means of knowing”. The DOJ brought a motion to the MPCC, asking that it provide a determination on how it would interpret “means of knowing”, arguing that the subjects would not otherwise be able to properly defend themselves if they didn’t know the standard to be met.

The MPCC concluded that establishing a firm definition of “means of knowing” was premature, given that such determinations are “inherently factual and contextual”. (A position that the BCCLA and Amnesty advanced and endorsed). Accordingly, evidence must be heard. Likewise, it was also premature to set out a conclusive “standard of conduct”, because that determination was also grounded in fact and context. The DOJ declined to seek a judicial review of these decisions, and the hearing proceeded.

A few months later — well after the MPCC had already started taking live testimony — the DOJ again brought a motion seeking a ruling on the “means of knowing” standard. The MPCC referred to its previous decision — that a ruling on the “means of knowing” standard was premature, and the issue would be decided after the close of the non-subject testimony. The DOJ sought judicial review of the MPCC’s decision. The hearings progressed, and the MPCC heard the DOJ’s motion the day after the last of the non-subject witnesses testified.

Shortly thereafter, the MPCC rendered its ruling on the “means of knowing” standard, prior to any of the subjects appearing as witnesses. Dissatisfied with the MPCC’s interpretation of “means of knowing” and its refusal to determine — before the close of evidence, and even before any of the subjects had testified — whether the subjects had a duty to investigate or seek out more information about post-transfer treatment of detainees, the DOJ applied to the Federal Court for a review of the MPCC’s ruling, bringing the number of pending judicial reviews to three.

The Federal Court’s ruling

The Federal Court agreed that it was premature to establish a “means of knowing” standard, and, like the MPCC, declined to come to any conclusion about the duty to investigate. It found that it was generally inappropriate for the Federal Court to intervene in the MPCC’s investigative procedure and decision-making prior to the conclusion of its work, and that the DOJ had not provided it with any reason to do so in this case.

With respect to the summons for document disclosure, the Federal Court remarked that “it is self-evident that document disclosure is fundamental to the ability of the Commission to discharge its mandate and conduct a full, independent investigation into the complaint.” Importantly, it also noted that

As the independent oversight body tasked by Parliament with carrying out a public inquiry into the complaint, it is the MPCC’s responsibility to make its own, independent decision as to what documents it considers necessary for a full investigation of the complaint. It should not have to rely on selected documents provided on the basis on an opaque screening process conducted in-house by government officials. … If the Commission does not have full access to relevant documents, which are the lifeblood of any inquiry, there cannot be a full and independent investigation.

(Emphasis added.) Accordingly, the Federal Court found that the MPCC did not overstep its jurisdiction in seeking additional documents from the government.

What this means

The MPCC’s mandate and the scope of its report will not be further narrowed.

Recall that the jurisdiction of the MPCC itself is already exceedingly limited — it can only really examine the conduct of the military police branch of the Canadian Forces. And following the government’s first challenge to the MPCC’s jurisdiction to the hold the Afghan Public Interest Hearings, the scope of the MPCC’s review was limited to the question of whether the named subjects had failed in a duty to investigate potential misconduct related to the transfer of detainees to Afghan custody. If the government had succeeded in its applications, there was the possibility that the MPCC’s jurisdiction in this case would be even further circumscribed.

So, a small procedural victory, but an important and welcome one.


Second verse, same as the first

Last week, the Security Intelligence Review Committee (SIRC) published a declassified version of its review into CSIS’s role in interviewing Afghan detainees. Shortly following media reports in early 2010 that CSIS was involved in interrogating prisoners captured by Canadian Forces in Afghanistan, both CSIS and SIRC commissioned investigations into the matter.

According to the SIRC report, the CSIS study was designed to “form a chronology and general description of CSIS’s involvement in this issue, and to consider its involvement from the standpoint of CSIS’s legal risk.” The SIRC investigation, by its own description, sought to “review CSIS’s files to assess performance, and the efficiency and effectiveness of its policy and operations.”

Much has been made in the media of how the SIRC report has “cleared” CSIS of “wrongdoing in connection with the abuse of Afghan detainees.” In order to understand why this declaration is — put mildly — somewhat misleading, it’s necessary to make clear the limited scope of the SIRC review and to spell out what it is that the report doesn’t consider.

The SIRC review — and the “parallel” CSIS study — looked at the very narrow issue of what role CSIS played in interrogations of CF-captured detainees prior to their transfer to the National Directorate of Security (NDS), Afghanistan’s secret police. To that end, SIRC agreed with the CSIS study’s conclusions that, for example:

  • CSIS’s participation in the interviews of detainees in Canadian Forces custody was at the Canadian Force’s request;
  • the Canadian Forces were ultimately responsible for the transfer of prisoners/detainees to Afghan authorities. CSIS’s role was one of facilitation, when required, between the Afghan NDS and other Canadian entities such as the CF or DFAIT;
  • CSIS officers posted to Afghanistan had no first-hand knowledge of the alleged abuse, mistreatment or torture of detainees by Afghan authorities.

In essence, CSIS is saying that to the extent that their spies were present at interviews, it was at the request of the Canadian Forces. And at the end of the day, it the Canadian Forces were ultimately responsible for making the decision to transfer detainees to Afghan custody. Moreover, CSIS officers in Afghanistan had no “first hand knowledge” of detainee torture and abuse by Afghan authorities. (More on what “first hand knowledge” means in a bit.) In sum, CSIS is telling us that if anyone’s looking to see who’s responsible for delivering detainees to torture, then they should be talking to the CF. As we’ve seen repeatedly in the context of the Afghan detainee issue, “not my job” is a familiar refrain.

But these conclusions still leave important questions unanswered. The extensive redactions in the declassified SIRC report make it difficult to say for certain what was and what wasn’t considered by the Committee, but it suffices that the publicly available portions of the report do not indicate any investigation into, for example, what information CSIS had concerning NDS use of torture and abuse in its prison facilities, and whether CSIS shared (or should have shared) that information with the CF and other branches of the Canadian government responsible for detainee issues.

These are important questions, because even the scant information provided in the declassified SIRC report reflects a certain wariness on the part of CSIS in its dealings with the NDS. In summarizing CSIS’s relationship with the NDS, the unredacted portions of the SIRC report state that:

In the process leading up to seeking formal approval [to establish an arrangement with the NDS], CSIS undertook preliminary consultations with DFAIT officials [redacted]

[redacted]

[redacted] CSIS pledged to take a cautious approach and to closely scrutinize the content of the information provided to, or obtained from the NDS to ensure that non of the information exchanged could be used in the commission of acts which would be regarded as human rights violations.

The Service’s relationship with the NDS consisted of [redacted] exchanges of information, [redacted]

[redacted]

Notwithstanding this productive working relationship, CSIS’s assessment of the NDS was both cautious and measured.

[redacted]

CSIS continued to stress that most allegations of human rights abuse were unconfirmed, [redacted]

[redacted]

In the course of this review, SIRC found no indication that in the period during which they conducted detainee interviews, CSIS officers posted to Afghanistan ever had first-hand knowledge of abuse, mistreatment or torture of detainees by Afghan authorities.

[redacted] Our review found that CSIS made efforts to contextualize NDS-originating information in order to assess its importance and credibility.

(Emphasis added)

This language all reflects a worry that the NDS was an agency that could not be relied upon to adhere to basic human rights, and that there was a present, real risk that the NDS was engaged in human rights abuses.

CSIS was alive to these concerns, notwithstanding the reported lack of “first-hand knowledge” of torture or abuse. (The notion of “no first-hand knowledge” is something we’ve seen employed repeatedly by government witnesses before Parliament and the MPCC — as far as we’ve been able to discern, it merely means that Canadian officials and representatives did not actually see the act of torture taking place. From what we’ve observed, learning of torture through direct reports from detainees or credible human rights bodies, or even foreign governments does not, in this technical parsing of language, constitute “first-hand knowledge”, as the term is used by the Canadian government.)

And thus, the SIRC report concluded that CSIS had “ongoing human rights concerns” with the NDS, and understood that there was “the possibility that information provided to CSIS by [the NDS] could have been derived from torture.” Yet there is no discussion of whether these concerns, and the underlying evidence giving rise to these concerns, were passed on to the relevant decisionmakers responsible for formulating the detainee transfer policy, or for authorizing detainee transfers. Instead, SIRC’s only observation is that in light of these risks, “CSIS took care to emphasize the need to mitigate this risk by managing its relationship and exchanges of information with the NDS carefully.”

And while this may technically “clear” CSIS of wrongdoing so far as intelligence collection and exchanges go, it leaves unanswered the question of what CSIS knew which caused them to suspect the NDS of committing human rights abuses, and whether that information was shared with DFAIT or the CF. If it wasn’t shared with the other relevant branches of the Canadian government, why not? (Bureaucratic inefficiencies cannot excuse Canada from its duties under international law to prevent and eradicate torture.) If such information was shared with DFAIT and the CF, then was the nature of this intelligence such that it should have compelled Canada to stop detainee transfers to the NDS?

These are issues that the SIRC report doesn’t resolve, and unfortunately, aren’t going to be resolved by the MPCC process or the half-completed Parliamentary review of detainee documents, either. Detainee handling in Afghanistan was an issue that crossed government agencies — what Canada calls a “whole of government” approach. Review commissions like SIRC or the MPCC — mandated only to oversee the conduct of one specific agency — have neither the jurisdiction nor the capacity to engage in a fulsome and meaningful accounting of Canada’s detainee transfers. This report illustrates precisely why detainee handling cannot be reviewed in a piecemeal fashion, and why a full public inquiry is the only way to achieve any measure of accountability.


No complicity in torture

Today, the BCCLA sent a letter to Minister of Justice Robert Nicholson, urging him to ensure that Canadian citizens are protected against foreign prosecutions relying on evidence derived from torture. The issue arises in the context of the ongoing attempts to extradite Hassan Diab for trial in France.

As readers of this blog know, Mr. Diab is a Canadian citizen whose extradition is being sought in connection with a bombing in Paris in October, 1980. We’ve been following his extradition proceedings because of the prominent role unsourced intelligence played in the Republic of France’s original Record of the Case submitted to support its extradition request, and the role that unsourced intelligence is likely to play at his trial in France.

In June of this year, a court in Ontario issued a commital order for Mr. Diab’s extradition, which is the legal mechanism permitting the government to surrender Mr. Diab to the French authorities. But the ultimate decision to surrender Mr. Diab falls on the Minister of Justice, who must decide whether it is appropriate to send Mr. Diab to face trial before a French court. In its letter to the Minister of Justice, the BCCLA sets out the reasons why surrender would be inappropriate in this case.

Chief among our concerns is the documented use of evidence derived from torture in French terrorism proceedings. Human rights organizations and international experts have reported on France’s willingness to use intelligence information coming from international partners well-known to routinely engage in torture. To date, France has not confirmed that the unsourced intelligence being offered against Mr. Diab was obtained by means other than torture.

The BCCLA has long maintained that evidence derived from torture has no place in judicial proceedings. Canadian and international law are clear on this point. In our letter, we called on the Minister to refuse Mr. Diab’s surrender altogether, as that would be the best guarantee that he would not be extradited to face an unfair trial. In the case that the Minister does decide to surrender Mr. Diab, we called on him to seek and obtain meaningful assurances from France that no evidence derived from torture would be used in the case against Mr. Diab.

Meaningful assurances, in this case, would mean that France must commit to providing adequate procedural safeguards to ensure that no intelligence information used in the case against Mr. Diab was derived from torture, or else commit to excluding all unsourced intelligence from Mr. Diab’s prosecution entirely. Getting these assurances is the only way that Canada can maintain its committment to the elimination of torture, wherever it may take place.