Contrariwise, if it was so, it might be; and if it were so, it would be; but it isn’t, it ain’t.

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.

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.

From the media: coverage of Afghan detainee disclosures

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.

Ongoing torture of Afghan prisoners?

In today’s online edition of the Toronto Star, Murray Brewster of The Canadian Press is reporting that an Afghan intelligence officer with the National Directorate of Security (NDS) boasted to Canadian ground commanders as recently as May 2009 that he was permitted to torture prisoners during interrogations.

Documents obtained by The Canadian Press show that it was this NDS claim which prompted an immediate halt in the transfer of detainees by Canadian Forces in May 2009.  As readers here may recall, Canadian-captured detainees in Afghanistan are transferred to the custody of the NDS, and it is this practice which is being investigated at the Afghan Public Interest Hearings at the Military Police Complaints Commission.

As Brewster reports:

But the torture claim by the NDS official prompted an extraordinary meeting on May 12, 2009, according to a briefing document prepared for MacKay. Officials with Foreign Affairs, National Defence, military commanders in Ottawa and Afghanistan, along with diplomats in Kabul met via secure video conference link with official of the Privy Council Office — the bureaucratic end of the Prime Minister’s Office.

The “statements are significant and necessitate a response,” said the May 15 summary of the meeting presented to MacKay.

The response was extraordinarily swift.

Within days of the claim being made, Foreign Affairs dispatched officials to interview six Canadian-captured prisoners, who were in custody at the Kandahar NDS facility at the time, and promised to “immediately double their visit tempo,” according to written summary prepared for Foreign Affairs Minister Lawrence Cannon.

Canada’s ambassador in Kabul at the time, Ron Hoffman, registered Ottawa’s “concern” with President Hamid Karzai’s government. Both the International Red Cross and the Afghanistan Independent Human Rights Commission were notified and in turn opened their own investigations.

While the scope of the current MPCC hearings does not extend to conduct as recent as 2009, reports such as these simply beg the question of how Canada can continue its ongoing practice of transferring detainees to the NDS.  As Paul Champ, lawyer for the BCCLA and Amnesty International at the MPCC hearings, remarked in this article:

“Torture is a practise deeply entrenched in the National Directorate of Security and you can’t wave a magic wand and have it disappear overnight,” he said. “Canadian government officials who are dealing with these matters, I’m sure, don’t believe that is the case.”

Secret documents, secret review

Yesterday, a detainee document agreement was struck between Government and two of three Opposition parties. The “pact” comes a full month and a half after Peter Milliken, Speaker of the House, ordered Government to resolve the disclosure issue.  Recall that when Speaker Milliken made his order, he gave the House two weeks to work with Government to devise a system of disclosure, and threatened to find the Government in contempt if no agreement was arrived at by that time.  The House apparently didn’t hold Government to this deadline, perhaps with the hope that an agreement allowing for greater access and transparency would be struck, but as it stands now, the document deal is fairly unsatisfying.

The agreement creates an ad hoc committee composed of four members, one each from the four parties.  This committee will have access to review, in secret, all of the detainee documents previously requested by Parliament in December 2009, and determine which of these documents can and should be released to the public and other members of Parliament.  The agreement also creates a Panel of Arbiters, composed of “three eminent jurists”.  While the ad hoc committee seems to hold the final say in what documents are relevant for disclosure, it is the Panel of Arbiters which is responsible for determining whether documents should be protected by national security privilege, attorney client privilege, and Cabinet privilege.  And according to the agreement, the decisions of the Panel of Arbiters with respect to disclosure is final and unreviewable.  Importantly, this ad hoc committee does not appear to have the power to conduct an actual investigation into the contents of the documents; its role looks to be strictly limited to reviewing the documents for relevance and more general disclosure.

Accordingly, the present agreement is unlikely to get to the heart of the matter. Its snags are serious, and have been criticized not only by the NDP, but also by legal experts who have gone so far as to call the deal “a mess”. The provisions around the “Panel of Arbiters” are one point of concern. This panel of retired judges appears to have the final say on which documents will be released and whether they will be censored or not, but there has been no word about whether their decision-making will be made public. The ban on investigating advice issued by government lawyers as well as internal Cabinet communications is another problematic point given that information about knowledge of torture may well be contained in these files.  At the end of the day, the House committee tasked with investigating Canada’s conduct with respect to detainee transfers will only have a limited and censored set of materials to work from.

With the NDP boycotting the investigation, the ad hoc committee will consist only of representatives from the Conservative party, the Liberals, and the Bloc Quebecois.

This latest development in the ongoing struggle for detainee document disclosure serves as a sad reminder of how little has been accomplished since the issue was first brought to the Government’s attention by Amnesty and the BCCLA in 2002. The government has consistently waffled on the question of document disclosure. This has included stymieing efforts by the MPCC to get to the truth, though the Commission’s been hearing from key military officials and members of government since May 2009.

We here at the BCCLA maintain that this issue has been shrouded in secrecy for long enough. A secret review that rests in the hands of a body of retired judges and is subject to the proposed restrictions strikes us as problematic, and inimical to any legitimate truth-seeking. For those reasons, we would reiterate our call for a public inquiry —one where a Commission would have full and complete access to the relevant documents and witnesses.

Top military brass knew of Richard Colvin’s concerns

Today the MPCC is hearing testimony from Gabrielle Duschner, a key link between DFAIT and the Canadian Forces. Ms. Duschner worked for DFAIT as a political advisor to CEFCOM (the Canadian Expeditionary Forces Command), headquarters to Canadian military missions overseas.  This morning, she affirmed that there was a general awareness and concern about the treatment of prisoners in Afghan jails prior to April 2007.

Richard Colvin in November 2009 / Toronto Star

But the big story of the morning concerned several May 2007 CEFCOM memos, which had only been recently produced to the MPCC and were put into evidence this morning. As we’ve reported previously, Ms. Duschner was originally scheduled to appear before the MPCC two months ago.  Her testimony was delayed at the last minute after the DOJ informed the MPCC that the government had still had not disclosed documents relevant to her testimony.  Apparently, these documents included Canadian military memos calling for diplomat Richard Colvin’s dismissal or censure over the frank nature of his reporting on the risk of torture faced by transferred detainees. “Recent messages drafted by Mr. Colvin have illustrated a pattern of reporting that risks compromising Canada’s military and diplomatic position in Afghanistan,” one memo read.  According to another memo, “CEFCOM is concerned that [Colvin’s] continued employment in Kabul as a political counselor and deputy to the [Head of Mission] could become a liability to the government of Canada’s interests if left unchecked”.

One of the memos was drafted by Mike Carter, a subordinate of Ms. Duschner, who was employed by DFAIT but seconded to CEFCOM. Ms. Duschner had read the memo and recalled “some speculation among staff that [Colvin’s] tenure should come to a conclusion.”  Nonetheless, Ms. Duschner said that she disagreed with the report’s conclusions.

These memos show that not only was the Canadian military – and those in its very highest levels of command – aware of Mr. Colvin’s warnings, they were deliberately trying to silence them. Indeed, as one memo recommended:  “Mr. Colvin be engaged directly in DFAIT and reminded of his responsibilities as a diplomat and boundaries as a reporter”.

UPDATE  Prism Magazine is live-streaming the MPCC hearings today and tomorrow.  Watch it here.

UPDATE  Some more items of interest from Ms. Duschner’s testimony yesterday.  Readers may recall that Richard Colvin had testified about an interagency meeting he had attended in Ottawa concerning the detainee issue.  Mr. Colvin informed both the MPCC and Parliament that he had told the group that if Canada was concerned about torture, they should stop transferring detainees to Afghan authorities.  According to Mr. Colvin, when he made that statement, the notetaker put down her pen and stopped taking notes altogether.  It turns out that this notetaker was Ms. Duschner, who informed the MPCC yesterday that she felt justified in putting down her pen because no one else in the room seemed interested in Mr. Colvin’s recommendation on how to stop torture.