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.
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 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.
Last week, the European Court of Human Rights (“ECHR”) issued an excellent judgment on the issue of extraterritorial application of human rights instruments in the case of Al-Skeini and Others v. The United Kingdom. (h/t Paul Champ)
As readers may recall, in 2007, the BCCLA and Amnesty International (Canada) launched a Federal Court application for an order to halt the transfer of prisoners captured by Canadian Forces during military operations in Afghanistan to Afghan authorities. We sought this order because we were concerned that CF-transferred detainees faced risk of torture in Afghan prisons.
In response to our application, which argued that the fundamental human rights protections guaranteed by the Charter of Rights and Freedoms should extend to the conduct of Canadian soldiers acting in Afghanistan, the Government of Canada claimed that the Charter had no such extraterritorial reach. The Government of Canada made this claim notwithstanding the fact that our concern focused on individuals who had been captured by Canadian Forces and held in Canadian military custody at the time of their transfer to the Afghans. The motions judge at the Federal Court agreed with the Government, and dismissed our application. The Federal Court of Appeal affirmed the lower court’s decision. The Supreme Court of Canada denied our application for leave to appeal.
Al-Skeini deals with the question of whether the United Kingdom breached its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention”) for its alleged failure to effectively investigate the deaths of six Iraqi civilians who were said to have been killed by British soldiers operating in Iraq. In its submissions before the ECHR, the UK admitted that it did have jurisdiction over a killing that occurred in a British military prison, but that it did not have jurisdiction over the other deaths, which took place in southern Iraq. Accordingly, while the European Convention could be found to apply to the death that took place in the British military facility, it could not be said to extend to conduct occurring in other places where the UK was engaged in military operations because it did not have “effective control” over those areas.
The ECHR disagreed, and found that extraterritorial jurisdiction could attach in various ways. Of particular relevance to the Afghan detainee issue, the ECHR stated that in its previous cases dealing with the extraterritorial application of the European Convention, jurisdiction did not arise “solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.” The ECHR also additionally stated that in determining whether the UK had effective control over certain areas in Iraq,
it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 [of the European Convention] to secure, within the area under its control, the entire range of substantive rights set out in the [European Convention]. It will be liable for any violations of those rights.
Thus, the ECHR unanimously dismissed the United Kingdom’s preliminary objections based on extraterritorial jurisdiction. So far, so good: much of what is said about the UK’s effective control over persons and places can be readily applied in the context of Canada’s conduct with respect to Afghan detainees. But where this decision really gets terrific is in the concurring opinion of Judge Giovanni Bonello, where he returns to first principles and considers what it means to commit to “universal” recognition and observance of fundamental human rights.
For example, Judge Bonello addresses what he terms as the UK’s “indivisibility of human rights” argument, which he describes as follows: “as human rights are indivisible, once a State is considered to have extra-territorial ‘jurisdiction’, then that State is held to be bound to enforce all the human rights enshrined in the Convention. Conversely, if that State is not in a position to enforce the whole range of Convention human rights, it does not have jurisdiction.” He flatly rejects this argument, observing:
Extraterritorially, a Contracting State is obliged to ensure the observance of all those human rights which it is in a position to ensure. … I believe that it ill suits the respondent Government to argue, as they have, that their inability to secure respect for all fundamental rights in Basrah, gave them the right not to respect any at all.
Judge Bonello’s comment reminds us of something we have long argued in the context of Afghan detainee transfers. Those wishing to hand-wave away Canada’s responsibility over detainee transfers often point to Canada’s inability to control what happens in Afghan prisons, saying that it’s the Afghans who are engaging in torture, not Canadians. But that misses the point — Canada can most certainly control whether its forces hand over detainees to other countries. To borrow Judge Bonello’s words: Canada is in a position to ensure that it is not placing individuals at risk of torture, and by virtue of being in such a position, it has obligations to ensure that individuals under its custody and care are not delivered to harm.
Judge Bonello quite precisely observes:
… For me the primary questions to be answered boil down to these: when a State ratifies the Convention, does it undertake to promote human rights wherever it can, or does it undertake to promote human rights inside its own confines and to breach them everywhere else? Did the Contracting Party ratify the Convention with the deliberate intent of discriminating between the sanctity of human rights within its own territory and their paltry insignificance everywhere else?
I am unwilling to endorse à la carte respect for human rights. I think poorly of an esteem for human rights that turns casual and approximate depending on geographical coordinates. Any State that worships fundamental rights on its own territory but then feels free to make a mockery of them anywhere else does not, as far as I am concerned, belong to that comity of nations for which the supremacy of human rights is both mission and clarion call. In substance the United Kingdom is arguing, sadly, I believe, that it ratified the Convention with the deliberate intent of regulating the conduct of its armed forces according to latitude: gentlemen at home, hoodlums elsewhere.
Well said, indeed.
Yesterday, the Canadian Press reported that the Canadian Forces provost marshal — the head of the military police — will be granted more direct authority over all members of the military police. This is the result of a reorganization in the command structure, which will take effect today.
This is a welcome move towards greater investigative and policing independence in the Canadian military. Under the previous system, the CF provost marshal had direct command authority only over the National Investigative Service, which conducts major criminal investigations within the CF. The task force provost marshal — the head of the military police detachment in theatres of operation such as Afghanistan — reported to the local CF task force commander, and not up a military police chain of command. This, of course, creates a situation where there is potential for conflicts, given that the military police’s job is, in part, to assess whether the members of the Canadian Forces are behaving lawfully. These CF members include the commanders on the ground.
As those of you who have been following the BCCLA’s work at the Military Police Complaints Commission likely know, one of the issues in that case is whether the CF provost marshal and the task force provost marshal, among others, failed to investigate whether the task force commander in Afghanistan illegally issued orders to transfer detainees to substantial risk of torture. One of the issues raised during the hearing was whether the task force provost marshal’s decision to not investigate the commander’s conduct was influenced by the fact that the commander was his direct commanding officer. This reorganization of the chain of command may go towards curing that potential for conflict.
On the other hand, as we’ve said previously in these pages (and at length in our final submissions to the MPCC), testimony at the MPCC has made clear that the National Investigative Service, for example, saw no need to investigate the legality of orders to transfer detainees, notwithstanding ample publicly-available information documenting reports of torture in Afghan prison facilities. Today’s restructuring changes nothing with respect to the NIS’s chain of command — it has always been independent of the task force commander.
This change in the command structure also doesn’t address our concerns about ongoing detainee transfers, which continue to this day, notwithstanding concerns about detainee torture as recently as 2009. It does little to ensure that military police receive adequate training so that they recognize violations of human rights and law of war when they take place. And this is a move that only impacts the function of the military police — the policy decisions to transfer detainees to the custody of the notorious Afghan secret police were made by government ministers and officials across agencies, over many years. The military police can only bear part of the responsibility for Canada’s conduct in Afghanistan. There needs to be a public accounting for the role played by many other government actors.
The BCCLA National Security Blog comes to you live from Ottawa, where Amnesty International Canada and the BCCLA just presented oral (and final?) submissions to the MPCC. Here are some early press reports from The Globe and Mail and the Toronto Star.
Listening to the Department of Justice’s submission today emphasized the absolute necessity for a full public inquiry into Canada’s past — and ongoing — practice of transferring detainees to Afghan national security forces.
Repeatedly, the Department of Justice argued that the MPCC’s jurisdiction and mandate are narrow, and pointed to several key areas in which it would not be permitted to make findings. For example, the DOJ argued that the Commission would not be able to make any determination whether the orders to transfer constituted any breaches of law whatsoever. The DOJ also argued that the Commission could not pass judgment on decisions made across government branches with respect to the transfers. For those decisionmakers who are not subject to the jurisdiction of the MPCC — that is, anyone who isn’t a military police officer — there will be no assessment of responsibility.
The DOJ also reiterated its position that allegations of Afghan torture were historic, and in any event, efforts to mitigate the risk of torture were undertaken — notably, with the adoption of a supplemental transfer arrangement with the Government of Afghanistan in May 2007. But what the effect of the May 2007 arrangement was to show that torture and abuse were indeed taking place in Afghan prisons, and almost immediately in June 2007, transfers were suspended out of concern of detainee mistreatment. Again, in November 2007, transfers were suspended, following a prison visit conducted by Canada’s own officials. While certain additional measures were undertaken before transfers resumed in late February 2008, credible human rights bodies continued to report ongoing torture and abuse in Afghan prisons and by Afghan security forces. And according to the Canadian Forces, detainee transfers were stopped on three separate occasions in 2009, twice because of continuing concerns over post-transfer treatment of detainees, and once because of difficulties in accessing transferred detainees for monitoring.
The MPCC is performing extraordinarily important work, but given the jurisdictional fetters placed on the Commission, it may not be able to provide a full picture of Canada’s conduct in Afghanistan — past or present. But such a full accounting is vital. The onus placed on Canada by our international obligations, and by our own commitment to human rights as a country and as a society — require us to very carefully assess the conduct of those who act in our name.
Faithful readers of the BCCLA National Security Blog will know that we first kicked things off here in December 2009 with our post on Richard Colvin’s documents, which warned senior Canadian officials that prisoners being captured in Afghanistan by Canadian Forces were at serious risk of being tortured when our troops handed them over to the Afghan secret police.
Since then, we’ve reported to you about the ongoing Parliamentary inquiry into detainee transfers and our work at the Afghan Public Interest Hearings at the Military Police Complaints Commission. Today, the BCCLA and Amnesty International Canada filed its final written submissions with the MPCC, and are now preparing for oral argument in Ottawa next week.
The MPCC’s jurisdiction is narrow — it can only look into the conduct of members of the Military Police. The decisions undertaken by other key actors — such as the Chief of Defence Staff, the Minister of National Defence, or members of DFAIT (Canada’s foreign affairs agency) — which allowed for detainee transfers to continue despite documented risk of torture are very unlikely to be reviewed here, which is why a public inquiry is so necessary. Nonetheless, the work of the MPCC is a vital first step towards accountability and ensuring that Canada maintains its human rights commitments.
The men and women of Canada’s military sacrifice and serve to protect Canada and its values. Maintaining fidelity to the laws of war and international human rights law is essential to the reputation of our armed forces and is crucial for ensuring the humane treatment of our own troops when captured. Its essential for protecting the core values of what the military is fighting for.
Check back next week for our update on oral arguments. In the meantime, here are our written submissions.
So one of our readers pointed out recently that the National Security Blog’s long overdue for an update, and he’s absolutely right, especially given the things we’ve been up to recently.
- In late October, the BCCLA issued its report on the UN Security Council’s 1267 Regime. As you’ll recall, the BCCLA launched a lawsuit challenging this Regime earlier this summer.
- In November, hearings resumed at the Military Police Complaints Commission on the transfer of Afghan detainees to risk of torture. The Commission heard testimony from all of the subjects of the complaint — the senior members of the Military Police who would have had responsibility to ensure adequate investigations into whether the Canadian Forces were properly transferring detainees to Afghan authorities. Cross-examination of these witnesses was conducted by our pro bono counsel Paul Champ, BCCLA Litigation Director Grace Pastine, and BCCLA Counsel Carmen Cheung. The evidence we heard was distressing: again and again, senior members of the Canadian Forces Military Police informed the Commission that they never initiated meaningful investigations into the transfers, despite the fact that transfers had to be halted following one of many reports of detainee abuse by the Afghans. One witness even told the Commission that he didn’t know which country the CF was transferring to. We’ll be back in Ottawa and before the Commission in early February, as it hears final submissions from all of the parties.
- While Grace and Carmen were at the MPCC, BCCLA Policy Director Micheal Vonn was down the street, testifying before the Standing Committee on Transport at the House of Commons on Bill C-42 and the US Secure Flight Program, and our concerns about the imposition of a foreign blacklist on Canadian soil.
Some things we’re keeping our eye on too, in the coming months:
- Yesterday, the Globe and Mail reported that the Parliamentary Committee set up to review Afghan detainee documents is ready to release documents and a status report.
- The Federal Court’s three decisions concerning Mohamed Harkat, one of the remaining individuals subject to the federal government’s deeply troubling security certificates regime. In its rulings, the Federal Court approved the reasonableness of the security certificate against Harkat, which permits the government to maintain Harkat’s virtual house arrest. It also affirmed the constitutionality of the new security certificate regime, which was modified following the Supreme Court of Canada’s ruling in an earlier case involving Adil Charkaoui, whose own security certificate was eventually struck down.
- The Standing Committee on Public Safety and National Security started hearings this week on Bill C-17, which seeks to reintroduce into the Criminal Code so-called anti-terrorism legislation permitting investigative hearings and preventative detention without charge. The BCCLA is on the Committee’s list of witnesses; hearings on the measure are expected to resume following Parliament’s holiday recess.
And speaking of holiday recesses, the National Security Blog will be back in the new year with our updates and commentary, so we’ll see you then.