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.

See you in September (?)

The latest dust-up at the MPCC over document disclosure from the Department of Justice looks to derail the next few weeks of hearings. The hearings were initially scheduled to be concluded by May 12, but now could be delayed until the summer, or even the fall.

Commission chair Stannard in hearings today. Image: Globe and Mail

This morning, MPCC lead counsel Ron Lunau informed the Commission that it appeared that documents were being “weeded out” of government disclosures to the investigation. He expressed concern that information could be held back by the DOJ “so that we never become aware of its existence.”

Last week, the evening before CEFCOM Political Advisor Gabrielle Duschner was set to testify, the DOJ informed Commission counsel that it still had not disclosed documents relevant to her testimony. Yesterday, Mark Wallace, counsel for Capt. (N) (ret’d) Steven Moore, argued that given the ongoing document disclosures by the DOJ and the delay in evidence from certain witnesses (such as Ms. Duschner), the subjects of the investigation should not be compelled to testify before all that evidence is in. Paul Champ, counsel for the BCCLA and Amnesty International, tried to keep the hearings somewhat on track. He suggested that the Commission could hear from non-subject witnesses, and may need to recall some witnesses if new evidence surfaces.

Based on these submissions, the Commission ruled this morning that while it will attempt to continue hearing from witnesses over the next few weeks, the subjects (who were scheduled to testify starting next Monday) will be rescheduled for a later date.

When will that date be? Presumably, it will be after the DOJ has delivered documents pursuant to a number of outstanding requests. Fresh off yesterday’s spat with the Commission over the timing of document disclosure, Alain Prefontaine, counsel for the DOJ, was able today to provide a timeline. According to Prefontaine, the DOJ will make disclosures on a rolling basis, and that the last set should be “good and ready” by the end of June.

So for now, the witness schedule is in a bit of disarray.  We’ll bring you an update when we have it. For now, some appropriate music for the wait:

Canada’s disregard for human rights in Afghanistan

Murray Brewster at the Canadian Press has obtained access to uncensored copies of diplomatic memoranda stating that Canadian officials continued to support Asadullah Khalid, the former governor of Kandahar, despite repeated warnings that he was a “known human-rights abuser”.

MacKay with Khalid in 2006 (Photo by Sergeant Carole Morissette)

From Sunday’s article:

The revelation about Asadullah Khalid, who stayed on as governor two years after concerns about his notorious reputation were raised, opens up another embarrassing avenue of inquiry over Afghan prisoner abuse.

The new allegation is contained in a two-year-old end-of-mission report by Richard Colvin, the whistleblower foreign service officer. An uncensored version of the report was shown for the first time to The Canadian Press.

Colvin’s disgust that Canada would support a “known human-rights abuser” was palpable and formed the most incendiary paragraphs of the report. References to Khalid were entirely blacked out in the version of the report publicly released to the Military Police Complaints Commission.

The article is available in full here.

Recently, Brewster reported on other unreleased documents detailing Canada’s troubling conduct with respect to Afghan detainees.

In this article, Brewster reports on an unreleased 2009 memo stating that the Afghan secret police — itself notorious for its blatant disregard for human rights — “refused to accept Canadian-captured prisoners over the summer because the military was providing ‘insufficient evidence’ of wrongdoing.”

And last week, Brewster reported on secret memos showing that Canadian officials were not only warned of detainee torture as early as 2006, but were preparing public responses at that time, should the allegations of abuse come to light.

Canada defended Afghan ‘human-rights abuser,’ memos allege (The Canadian Press)
Afghans rejected Canadian-captured prisoners for ‘insufficient evidence’ (The Canadian Press)
Calls for MacKay’s resignation over Afghan prisoner furor (The Canadian Press)

ETA: MacKay responds to these allegations

What’s behind the black boxes?

Aaron Wherry over at MacLean’s was sharp enough to spot the difference between the version of a report cited by General Walter Natynczyk in his press conference on Wednesday morning and the version provided to the BCCLA and Amnesty back in 2007.

The difference? The report of a prisoner transferred by Canadian Forces to Afghan police being abused by Afghan forces was redacted in the version the BCCLA and Amnesty got to see.

In the version provided to the BCCLA (right), critical pieces of evidence have been redacted, hiding the suggestion that abuse by the ANP was well known to Canadian Forces.

A tale of two documents

Here’s a transcribed version of the unredacted document, as provided by the CBC. I’ve noted the sections that were redacted in the version provided to the BCCLA and Amnesty in bold:

20:00 14 Jun 06 [location redacted]

Stopped along Rte [redacted] and held up a vehicle that was proceeding south down the route. Stopped and searched the three individuals in the white van and got a very weird feel from one of them. Had the terp [interpreter] come and he [unclear] that the individual was in an probability Enemy (Taliban) due to his accent and his false story of being from Kandahar City. So I had him lie down on his stomach, then conducted a detailed search (I had him empty his pockets prior to this) catalogued all his items and then took down his particulars (name [redacted]  from Uruzgan). We then photographed the individual prior to handing him over, to ensure that if the ANP did assault him, as has happened in the past, we would have a visual record of his condition. The ANP Section Comd, [redacted] then arrived, asked the suspect a couple of questions and concurred with our assessment that the individual was enemy. We in good faith handed the PUC (person under control) over to them so that he could be transported to the Zhari District Center [Forward Operating Base Wilson] where [watchdog] (a radio call-sign for military police) could get him. That was the last I saw him. [redacted] is one of [redacted] men.

Wonder what else is behind black boxes on the documents the government has disclosed so far? So does Parliament.  Today the opposition parties teamed up to pass an unusual motion that may force the government to produce uncensored versions of many critical documents relating to prisoner transfers and reports of torture or abuse. The government is expected to ignore the motion, triggering a battle between national security privilege and parliamentary privilege that could wind up in the courts.