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.
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?
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 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] 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]
Notwithstanding this productive working relationship, CSIS’s assessment of the NDS was both cautious and measured.
CSIS continued to stress that most allegations of human rights abuse were unconfirmed, [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.
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.
We here at the BCCLA National Security Blog have been anxiously awaiting the disclosure of materials from Parliament’s detainee document review, notwithstanding the fact that it was more than likely that the most relevant documents would be withheld from public disclosure (because of national security concerns and the like) or even Parliamentary review (because of Cabinet confidences and solicitor-client privilege). We’re going through the 4000-odd pages of disclosures, but in the meantime, we’d like to share some of the media coverage we’ve found interesting these past few days:
Terry Milewski from the CBC highlights just one example of inconsistent redactions between the Parliamentary disclosure and the documents provided to the Military Police Complaints Commission, and wonders what national security interest was at stake when the three-judge panel decided to retain the government’s redaction.
Colin Freeze and Daniel LeBlanc at The Globe and Mail report that despite the government’s assertion that this set of disclosures puts to bed the “detainee controversy”, the fact remains that the panel still has documents yet to be vetted and released.
Greg Weston at the CBC provides a contextualized history of government attempts to thwart disclosure of materials and information about Canada’s Afghan detainee policy, and ties together goings-on in Parliament and at the MPCC.
We’ll be back to share any new information we find in the recent document disclosures, so stay tuned.
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.