Contrariwise, if it was so, it might be; and if it were so, it would be; but it isn’t, it ain’t. That’s logic. (1)
Happy 2012 from the BCCLA National Security Blog. We start off the year with a report that the Department of National Defence has decided to extend the protections of Canada’s Privacy Act to detainees captured by Canadian Forces operating in Afghanistan.
According to media reports, the DND’s invoking the detainees’ privacy rights as a means of resisting disclosure of photographs.
By way of background, Paul Champ and Amir Attaran sought, via an Access to Information request, photographs of detainees captured by Canadian Forces in Afghanistan. They had originally requested these photographs to determine whether they contained any evidence of detainee torture or abuse. Their request was refused.
Such secrecy and refusal to disclose even basic information about the treatment of CF-captured detainees is nothing new, of course. Readers of these pages will recall how difficult it was for the MPCC — and even Parliament — to get documentary disclosures relating to Afghan detainees from government. To test how far the government was willing to keep information about detainees out of the public eye, Professor Attaran modified his request: if maintaining the detainees’ privacy rights was a concern, then he would be willing to accept photographs that completely blacked out the detainees’ faces, but left their hair-styles unobscured. His request was again refused, despite a recommendation from the Information Commissioner of Canada that the blacked-out photographs be released.
The Ottawa Citizen is now reporting that the DND withheld these photographs based on a theory that their release would violate the detainees’ privacy rights. As reported:
“National Defence will not follow the recommendation made by the Information Commissioner of Canada regarding disclosure of photographs covered by this file and is prepared to defend the decision in court if necessary,” Julie Jansen, head of DND’s Access to Information branch, wrote in the October 2010 briefing note.
Jansen argued the photographs constituted “personal information” of the insurgents and releasing images of their hairdos would “probably cause injuries related to national security.”
The privacy rights of detainees are important, certainly. In fact, the Geneva Conventions make clear that proper treatment of prisoners of war means that their photographs should not be disseminated in any way that could be seen as degrading or humiliating them. But in the case of the photographs being requested by Professor Attaran, it’s far from clear as to what privacy rights are being protected by withholding their disclosure. And for the government to invoke the rights of the detainees in an effort to shield itself from public accountability and scrutiny is nothing short of astounding. We can’t put it any better than Professor Attaran:
“The same government that says those detainees have no rights under the Charter of Rights and Freedoms now embraces the idea that detainees have rights under the Privacy Act,” he explained. “The government’s position is that these persons have privacy rights but no constitutional right to avoid torture.”
And indeed, legal experts are already suggesting that by extending the jurisdiction of the Privacy Act to Afghan detainees, the government may be (inadvertently?) setting the stage for an argument that the protections of the Charter — our most basic law — should be likewise available.
This isn’t the first time we’ve heard the government invoke the Privacy Act and the need to protect detainees’ privacy rights, at the expense of ensuring accountability for violations of fundamental human rights. During the course of the Afghan Public Interest Hearings at the MPCC, the government made the argument that members of the military police didn’t have any reason to launch an investigation into whether detainees were being transferred to torture and abuse because they had no reason to suspect that detainees were being tortured, or that Canadian commanders disregarded the risk of torture. The subjects of the MPCC complaint largely claimed that they weren’t aware of first-hand accounts of torture and abuse, notwithstanding the fact that some of these reports were documented by Canadian diplomats and provided to Canadian military commanders. Furthermore, it was argued, members of the military police could not have reasonably been expected to know or access information relating to detainee abuse and torture because it would violate the detainees’ privacy rights.
And so (again): in the name of protecting detainee privacy, government shuts the door to any scrutiny of its conduct, to any attempts at discerning what has happened to the men and children our troops have delivered to the Afghan government, and to any true accountability to the Canadian public.
(1) h/t Lewis Carroll.
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.
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.
How’s that for substantial risk?
While the BCCLA National Security Blog usually limits itself to commentary on Canadian conduct, we think it’s worth discussing the detention of Bradley Manning, the U.S. army private accused of leaking classified information to WikiLeaks.
Manning — who has yet to be convicted of any crime — has been in solitary confinement at Quantico since August 2010. As described by Salon’s Glenn Greenwald:
For 23 out of 24 hours every day he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he’s barred even from exercising and is under constant surveillance to enforce those restrictions. For reasons that appear completely punitive, he’s being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch).
Until March of this year, Manning was forced to sleep every night in nothing but his boxer shorts. At the beginning of March, Quantico ordered that Manning be forced to sleep completely naked, and be subjected to a daily morning inspection where he is required to stand outside his cell, naked. As The New York Times observed this week,
Forced nudity is a classic humiliation technique. During the early years of the Bush administration’s war on terror, C.I.A. interrogators regularly stripped prisoners to break down barriers of resistance, increase compliance and extract information. One C.I.A. report from 2004 said that nudity, along with sleep deprivation and dietary manipulation, was used to create a mind-set in which the prisoner “learns to perceive and value his personal welfare, comfort and immediate needs more than the information he is protecting.”
The U.S. government claims that Manning must be held in such conditions to protect national security and his own safety. Yet, as The Times reports:
Military officials say, without explanation, that these precautions are necessary to prevent Private Manning from injuring himself. They have put him on “prevention of injury” watch, yet his lawyers say there is no indication that he is suicidal and the military has not placed him on a suicide watch. (He apparently made a sarcastic comment about suicide.)
All of this is nothing short of appalling. It is well-documented that prolonged solitary confinement, such as the sort experienced by Manning, has devastating psychological effects. The U.N. Committee Against Torture has called for its abolition. It has been described by international bodies as constituting a breach of the anti-torture principle. Indeed, Manning’s lawyers have reported that military doctors are dosing him with anti-depressants in order to help maintain his psychological integrity.
The issue of prolonged solitary confinement has been much on our minds here at the BCCLA. Two weeks ago, we launched a constitutional challenge against the use of long-term, indefinite solitary confinement in Canadian prisons. Like Manning, prisoners in Canadian penitentiaries are all too often subjected to long-term isolation. They too are kept in their cells for up to 23 hours a day, with no meaningful human interaction, for months or years at a time.
A recent article by Howard Sapers, the Correctional Investigator of Canada, reported that during fiscal year 2008-09, there were, on average, approximately 904 individuals in solitary confinement in Canadian prisons, on any given day. A snapshot on April 12, 2009, shows that almost 37 percent of those in solitary confinement had spent over 60 days there. These numbers are alarming, given that the total number of prisoners living in institutions with solitary confinement units is less than 10,000.
The conditions of Manning’s detention are shocking, but the brutality of solitary confinement is something experienced by too many Canadian prisoners, as well. To learn more about solitary confinement, we recommend this excellent article from The New Yorker, by surgeon and journalist Atul Gawande. To learn more about solitary confinement in Canada and the BCCLA’s advocacy, take a look at our special section on solitary confinement at the BCCLA’s website.
This morning at the MPCC, Paul Champ resumed his cross-examination of BGen Guy Laroche. Readers of these pages may recall that at the close of the last session of MPCC hearings this May, we heard conflicting testimony from BGen Laroche and his political advisor, Ed Jager, who each claimed that the other was responsible for assessing whether detainees were facing substantial risk of torture at the time of their transfers.
The first press reports from this morning’s session are troubling. Despite evidence that one in five Afghan detainees reported abuse to Canadian diplomats from late 2007 to early 2008, BGen Laroche continued to insist that such reports did not constitute evidence of systematic abuse. According to the Canadian Press, BGen Laroche testified that these reports of abuse were merely allegations which needed investigation. But that, of course, begs the question of what investigation was ever undertaken. From the testimony offered thus far, there doesn’t seem to be much evidence of any sort of careful, diligent investigation into these claims. So how was BGen Laroche — the commander of Joint Task Force Afghanistan, Canada’s mission in Afghanistan — confident that he wasn’t transferring prisoners to torture? Your guess is as good as ours.
Aaron Wherry over at MacLean’s was sharp enough to spot the difference between the version of a report cited by General Walter Natynczyk in his press conference on Wednesday morning and the version provided to the BCCLA and Amnesty back in 2007.
The difference? The report of a prisoner transferred by Canadian Forces to Afghan police being abused by Afghan forces was redacted in the version the BCCLA and Amnesty got to see.
In the version provided to the BCCLA (right), critical pieces of evidence have been redacted, hiding the suggestion that abuse by the ANP was well known to Canadian Forces.
Here’s a transcribed version of the unredacted document, as provided by the CBC. I’ve noted the sections that were redacted in the version provided to the BCCLA and Amnesty in bold:
20:00 14 Jun 06 [location redacted]
Stopped along Rte [redacted] and held up a vehicle that was proceeding south down the route. Stopped and searched the three individuals in the white van and got a very weird feel from one of them. Had the terp [interpreter] come and he [unclear] that the individual was in an probability Enemy (Taliban) due to his accent and his false story of being from Kandahar City. So I had him lie down on his stomach, then conducted a detailed search (I had him empty his pockets prior to this) catalogued all his items and then took down his particulars (name [redacted] from Uruzgan). We then photographed the individual prior to handing him over, to ensure that if the ANP did assault him, as has happened in the past, we would have a visual record of his condition. The ANP Section Comd, [redacted] then arrived, asked the suspect a couple of questions and concurred with our assessment that the individual was enemy. We in good faith handed the PUC (person under control) over to them so that he could be transported to the Zhari District Center [Forward Operating Base Wilson] where [watchdog] (a radio call-sign for military police) could get him. That was the last I saw him. [redacted] is one of [redacted] men.
Wonder what else is behind black boxes on the documents the government has disclosed so far? So does Parliament. Today the opposition parties teamed up to pass an unusual motion that may force the government to produce uncensored versions of many critical documents relating to prisoner transfers and reports of torture or abuse. The government is expected to ignore the motion, triggering a battle between national security privilege and parliamentary privilege that could wind up in the courts.