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.
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.
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.
After a long summer hiatus, the Afghan Public Interest Hearings at the Military Police Complaints Commission resumed today, with Major General Mike Ward of the Canadian Forces taking the stand to discuss the transfer of detainees to Afghan security forces during his tenure as Chief of Staff: Operations (CoS) at CEFCOM, the Ottawa-based office heading the Canadian mission in Afghanistan. He was CoS from 2005 until 2006, a time when Canada’s detainee policy was not yet under the heavy scrutiny it has seen over the past three years.
MGen Ward’s testimony continued to develop what is an increasingly clear picture of CEFCOM leadership and Ottawa bureaucrats ignoring the realities on the ground in Afghanistan.
He called the National Directorate of Security (NDS), the Afghan intelligence organization that receives Canada’s transferred detainees, a “very highly thought of organization“, neverminding the fact that torture by the NDS has been well documented. Reports from independent observers like Human Rights Watch and the International Committee of the Red Cross (ICRC), the U.S. State Department, the Afghan Independent Human Rights Commission (AIHRC), and even Canada’s own Foreign Service have all confirmed abuse in NDS facilities.
He also showed a lack of understanding of Canada’s international obligations. MGen Ward said that he was not hearing more reports of torture out of Afghanistan than he was from the other regions that Canadian Forces were involved in, but also admitted that he could not “dismiss the fact torture happened“, but that we could not “assume that’s the case all the time”.
Under international law, Canada cannot transfer detainees to a risk of torture, full stop. The standard is not “to a risk greater than that in other countries”, or “to a certainty of torture”. It’s not good enough to say that the system is working because not every transferred detainee is tortured. The “fact that torture happened”, as MGen Ward put it, means that transfers should not have happened at all, not until Canada was satisfied that there was no longer a substantial risk of torture.
MGen Ward also dismissed concerns over detainee transfers from CEFCOM’s Provost Marshal at the time, Major Kevin Rowcliffe. Maj Rowcliffe had told MPCC investigators that his superiors had ignored his attempts to express his concerns over detainee transfers. MGen Ward did not remember having a conversation with Maj Rowcliffe about detainees, but said that his comments were “outside the lane” because Canadian Forces already had enough to worry about without adding concerns over detainees into the mix. He also said that at CEFCOM, people had other things on their mind, and that talk about detainee abuse was a “conversation killer at the water cooler”.
In the end, it became clear that MGen Ward just did not want to think about detainees. He knew that some detainees were tortured and that the Canadian Forces transfer regime did little to prevent it, but just didn’t want to be the one to dampen the mood at CEFCOM with that depressing water cooler talk about torture.
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.”
A terrific decision has come out of Ottawa in Abousfian Abdelrazik’s case against Lawrence Cannon and the Canadian government for damages resulting from Canada’s complicity in his reported torture by Sudanese authorities and Canada’s sustained refusal in permitting him to return home. Readers of these pages will know that the BCCLA recently launched a lawsuit in conjunction with Mr. Abdelrazik and the International Civil Liberties Monitoring Group to challenge Canada’s domestic implementation of the UN Security Council’s 1267 Regime.
Madam Prothonotary Roza Aronovitch’s judgment is significant, in part, because it recognizes for the first time a private law cause of action for torture. While the issue of whether such a cause of action exists — and whether Mr. Abdelrazik has proven that he has suffered damage as a result of Canada’s purported complicity — remains to be resolved, it is telling that the Court refused to exclude the possibility that such a cause of action could be sustained. In discussing her reasons for permitting Mr. Abdelrazik’s claim to go forward, Madam Prothnotary Aronovitch writes:
These pleadings raise an important issue as to the scope and content of Canada’s international law obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the prohibition against torture in customary international law. The linkage between international law and domestic law is evolving. The plaintiff, moreover, is supported by academic opinion and jurisprudence which evidently leaves open the possibility that courts may, in the proper circumstances, recognize a cause of action for violation of customary international human rights. It is therefore not plain and obvious that the plaintiff can not succeed, and it is premature to foreclose the debate at this juncture.
This decision can potentially open the door for individual damages in other instances where Canada is alleged to have been complicit in torture, such as with Benamar Benatta.
Startling (and encouraging?) news from Maher Arar and his lawyers yesterday. Fresh off of the U.S. Supreme Court’s denial of certiorari in Mr. Arar’s appeal from the dismissal of his civil suit against U.S. officials for their role in his rendition and torture in Syria, Mr. Arar and his lawyer Paul Champ revealed that the RCMP has been conducting a four-year investigation called “Project Prism” into possible violations of the Criminal Code by American and Syrian officials participating in Mr. Arar’s rendition.
The Criminal Code prohibits torture of a Canadian citizen inside or outside of Canada, and Canada can exercise personal jurisdiction over foreign officials if their home governments agree to their extradition, or if these officials find themselves physically located in a place where Canada or Interpol can exercise jurisdiction.
According to Mr. Arar, he has co-operated with the RCMP’s investigation and believes that given the U.S. Supreme Court’s refusal to hear his appeal, Canadian prosecution of foreign officials complicit and participating in his torture “is more important than ever.”
Mr. Champ, as per usual, puts it neatly:
The United States has taken the approach of let bygones be bygones but there are hundreds, if not thousands of people around the world who have been tortured as a result of U.S. government policies that have been carried out by individuals. The last time I checked, that was not only a crime but an international crime.
Center for Constitutional Rights Senior Attorney Maria LaHood, the lead lawyer on Mr. Arar’s civil case in the United States, seemed impressed by the RCMP’s initiative. “It takes some amount of courage to stand up to the U.S. government and I give the RCMP Full credit for that,” she said.
We here at the BCCLA National Security Blog are pretty impressed too. Perhaps the Americans and the Syrians will be held to account after all.
UPDATE David Cole, one of Mr. Arar’s US lawyers, has a post up on the NY Review of Books on his thoughts about the Supreme Court’s denial of certiorari.