Canadian Afghan detainee issue


 * For a more detailed timeline of events, see Timeline of the Canadian Afghan detainee issue.



The Canadian Afghan detainee issue concerns questions about actions of the executive branch of the Government of Canada during the War in Afghanistan in regards to Canada transferring Afghan detainees to the Afghan National Army (ANA) or the Afghan National Directorate of Security (NDS). This issue has at least two distinct subcategories:

The first issue concerns whether or not the executive branch of the Government of Canada knew about alleged abusive treatment of Afghan detainees by those Afghan forces. Particularly at issue are questions of when the government of Canada had this alleged knowledge. The question of "when" is important because it pertains to their responsibility to act on knowledge of mistreatment of detainees. That responsibility is outlined in the Third Geneva Convention, which Canada is a party to. Article 12 states that "the Detaining Power [(in this case Canada)] is responsible for the treatment given [to prisoners of war]".

The second issue arose in March 2010, when allegations surfaced that the government did more than turn a blind eye to abuse of Afghan detainees, but that Canada went even further in intentionally handing over prisoners to torturers. The allegations were sparked by University of Ottawa law professor Amir Attaran, who claimed that full versions of government documents proved these claims. If the allegations are true, Canada could be considered guilty of a war crime, according to critics.

Subsequently, the Canadian House of Commons has been the scene of a showdown, as opposition Members of Parliament (MPs) have tried to force the government into releasing said documents in full, unredacted form. The controversy over the documents was fueled further when Parliament was prorogued at the end of 2009. The government maintained that they had a duty to protect Canadian troops and citizens as the documents contained sensitive information, while opposition MPs have argued they have the parliamentary privilege to see them. At the request of the Speaker of the Canadian House of Commons, the opposition parties and the government worked together to organize a system to determine what documents were sensitive or not, so that they could be released to MPs. The Canadian public, which generally holds the view that there was knowledge of detainee abuse by military or government officials, now awaits for a clearer picture of the issue as these documents are released.

Background
Canada's military involvement in Afghanistan began in 2002 with the International Security Assistance Force (ISAF), a coalition of soldiers from 42 countries, which was tasked as a counterinsurgency effort in response to the September 11 attacks. ISAF had initially been established as a stabilization force by the United Nations Security Council on December 20, 2001, to secure Kabul. The Canadian Liberal government at the time, under Prime Minister Jean Chrétien, chose to have the Canadian Forces hand over its prisoners to the United States, who led the fight against al-Qaeda and other insurgents. After NATO took command of Afghanistan in 2003, Abu Ghraib torture and prisoner abuse at the hands of the United States armed forces in Iraq came to the attention of the public, and Canada soon faced pressure to hand their prisoners to someone else. Canada entered into an agreement with the Afghan government and started transferring detainees to Afghan security forces, which comprised the Afghan National Army (ANA) and the Afghan National Directorate of Security (NDS).

On December 18, 2005, then-Chief of Defence Staff Rick Hillier signed an agreement between Canada's Department of National Defence and the Government of Afghanistan. The agreement did not include any explicit right of access by Canada to Afghan detainees. Members of the opposition requested then-Minister of National Defence Gordon O'Connor to renegotiate the prisoner transfer agreement. This request was dismissed, with O'Connor saying the International Committee of the Red Cross (ICRC) and the Red Crescent fulfilled the duty of ensuring fair treatment of detainees and Canada could be notified and take action in any cases of abuse. However, the Red Cross stated that their mandate was being misunderstood, and it was the responsibility of Canada. It maintained that it had no role in monitoring the Canada-Afghanistan detainee-transfer agreement, and that following long-established operating procedure, the Red Cross would not reveal to any foreign government any abuses it might find in Afghan prisons. While maintaining that detainee monitoring was the Red Cross' duty until March 2007, O'Connor apologized to the House of Commons for previously misleading them on the issue. In turn, a new agreement was reached in April 2007 that allowed Canadian officials to have access to Kandahar jails.

Surfacing of allegations
The first allegations of detainee abuse came in early February 2007, when University of Ottawa law professor Amir Attaran produced documents he had received through an Access to Information request showing that three prisoners in the custody of Canadian military police were brought in by their Afghan interrogator for treatment of similar injuries to the head and upper body, all on the same day. Attaran argued this could be evidence of torture on the part of the interrogator and should be investigated. Attaran has maintained these allegations, stating in 2010 that the documents show torture of detainees was an actual tactic used to obtain information during interrogation.

In April 2007, The Globe and Mail published interviews with 30 men who claimed they were "beaten, starved, frozen and choked after they were handed over to Afghanistan's National Directorate of Security" by Canadian Forces members. It also revealed that it had received an censored report by the Canadian government on human rights in Afghanistan through an access to information request, and it contained "negative references to acts such as torture, abuse, and extra judicial killings [that] were blacked out without an explanation." This prompted intensive questioning in the House, to which O'Connor claimed that a new agreement had been reached, saying "we have, in the last few days, entered into a local agreement in the Kandahar province to enter the detention facilities any time we want." This would be reaffirmed by Prime Minister Stephen Harper, stating that there was "no evidence that access is blocked to the prisons", and that Afghan authorities had agreed to "formalize that agreement so there is no potential misunderstanding." Regardless, NATO Secretary General Jaap de Hoop Scheffer announced that the Afghan government was to launch an inquiry about the fate of detainees. In January 2008, it was revealed that the government ceased the detainee transfers after an internal investigation revealed allegations of a detainee being abused on November 5, 2007.

Allegations regarding the treatment of Afghan detainees resurfaced in November 2009 via parliamentary testimony by Richard Colvin, the second highest ranked member of Canada’s diplomatic service in Afghanistan from 2006 to 2007. Colvin claimed that many detainees were probably tortured, and it was a standard operating procedure for Afghan interrogators. This would be consistent with special reports by the United Nations Human Rights Commission and the US Department of State. Colvin also said the torture involved beatings, whipping with power cables, the use of electricity, knives, open flames and rape. The Canadian government dismissed opposition calls for a public inquiry the next day. "There has not been a single, solitary proven allegation of abuse involving a transferred Taliban prisoner by Canadian forces", Defence Minister Peter MacKay said in the House of Commons, with his parliamentary secretary suggesting Colvin was not credible.

Regardless, Colvin would provide further testimony in a hearing at the Military Police Complaints Commission. He stated that upon visiting Kandahar province's main prison in May 2006, he discovered the ICRC had a "serious problem" with trying to keep track of Afghan prisoners. Officials had approached Colvin with "forceful" concerns about the lack of information given to them by Canada, causing them to lose "many, if not most — and possibly all — of our detainees," stated Colvin. He has also presented allegations that Canadian government and military officials knew about reports of abuse and human rights violations surrounding former governor of Kandahar Asadullah Khalid, saying Canadian officials heard credible sources claiming that Khalid ran a drug network, used drugs himself, used private detention facilities, and sexually abused young girls. Colvin is not the only civil servant to indicate there was a problem about Afghan detainees. Eileen Olexiuk, another Canadian diplomat in Afghanistan, also revealed in an interview with the CBC that she had warned the government in 2005 about torture problems. She said that the government, which was under the leadership of Paul Martin at the time, ignored her advice.

On December 8, 2009, General Walter Natynczyk testified before a parliamentary committee that one particular detainee that was abused on June 14, 2006 by Afghan police was never in Canadian Forces custody. Canada's chief commander stated that although Canadian Forces members had questioned the man, he was taken into custody by Afghan police, and Canadian troops rescued him when the police started beating him with their shoes. However, the general corrected himself the following day upon receiving new information that the man had in fact been in Canadian custody. This would be the first piece of evidence that Afghan detainees in Canadian custody were subsequently abused by Afghan officials, contrary to government claims that there was no such evidence. It prompted opposition MPs to recall for a public inquiry into the matter, and for Peter MacKay to be fired. Canada's top military commander subsequently ordered an inquiry to find out why he had not been informed about this incident. This inquiry revealed many Canadian soldiers were aware that Afghan security forces beat prisoners "in the street and elsewhere" on a regular basis. A separate report to General Natynczyk also concluded that the detainee beaten in June 2006 was not defined as a Canadian detainee, preventing it from being reported up the chain of command, and that the Department of Defence and Canadian Forces should “be tasked to examine the detainee reporting process...to develop one consolidated process for the reporting on [Canadian Forces] detainees.”

In March 2010, the Canadian Press reported that documents filed with the Military Police Complaints Commission showed that the Canadian Security Intelligence Service (CSIS) had starting playing a role in the interrogation of Afghans captured by Canadian Forces in 2006. Sources say the military's decision to hand captives over to the National Directorate of Intelligence was sometimes based on the recommendations of CSIS interrogators, but Canadian military officials always delivered the final decision. This prompted CSIS to undertake a review of its dealings with Afghan detainees. "This review is being conducted to ensure that the Service can clearly and without reservation account for its engagement during this period," according to a memo to Minister of Public Safety Vic Toews.

The role of Canada in regards to children suspected of being involved in insurgency has also been called into question. A briefing note to Peter MacKay states that many juvenile detainees were arrested by the Canadian Forces, and transferred to the NDS, as per CF policy for all detainees under the age of 18. This is amid reports that the NDS issues rough treatment of children, including a United Nations report from April 2010 stating "use of harsh interrogation techniques and forced confession of guilt by the Afghan National Police and the National Directorate of Security was documented, including the use of electric shocks and beating." The briefing note also states juvenile detainees were being kept in a Canadian transfer facility in Kandahar for "a significant period."

While the first specific allegations of abuse surfaced more than three years ago, there has been no official public inquiry. MPs in the House of Commons voted 146 to 129 in favour of a motion to set one up, but the Prime Minister has refused to consider it, stating that "the government of Canada has taken all necessary actions in all instances where there is proof of abuse of Afghan prisoners." Some critics and the Speaker of the House of Commons have also scolded both the government and opposition MPs for using the issue for political gain. Opposition MPs have also stated that it should not be left to the military to investigate itself through the Military Police Complaints Commission. The issue has brought memories of the 1990s Somalia Affair, in which a Canadian Forces member beat a Somali teen to death and the Canadian military hid the evidence, causing the disbanding of the Canadian Airborne Regiment, and greatly damaging the image of the Canadian Forces.

Allegations in other nations
There are also allegations that the NDS tortured detainees handed over to them by British soldiers in Afghanistan. These allegations came as Maya Evans, an anti-war activist, revealed them in a London courtroom as she sought a judicial review of Britain's detainee transfer policy in Afghanistan. Details of the torture on seven detainees, labelled 'Prisoner A' through 'G', included beatings with sticks, wires, and steel rods, being hung from the ceiling, being put in stress positions, sleep deprivation, and electrocution. Daniel Carey, who is helping Evans in her bid for a judicial review, also claims there is evidence that British Armed Forces have received evidence of this torture, and NATO "as buried its head in the sand while torture has continued, and it's known about it."

The British High Court of Justice ruled on June 25, 2010 that there was "a possibility of torture and serious mistreatment” of prisoners. While it is now illegal for British troops to hand over detainees to the NDS in Kabul, The High Court still approved of transfers to the NDS in Kandahar and Helmand provinces. This was on the condition that government and military officials improved its systems for monitoring detainees, in order to avoid "a real risk of torture or serious mistreatment.” This led to a statement by Amir Attaran that Canada has "been put on notice...that torture is real in their experience,” and that policies regarding detainee transfers must be changed before Canada is charged with war crimes.

Sand Trap I and II
It is believed that initial investigations into the treatment of Afghan detainees sparked investigations into Canada's elite military unit, Joint Task Force 2. The first investigation, named Sand Trap I, examined events occuring between 2005 and 2008 and resulted in no charges being laid. However, a larger investigation called Sand Trap II began hearing from witnesses in May 2009, according to a briefing note between General Walter Natynczyk and Defence Minister Peter MacKay. This investigation is still ongoing.

Dispute over documents and parliamentary committees
Opposition MPs in the House of Commons have called for all documents the government possess regarding the detainee issue, including reports to the government by Richard Colvin, to be made public. Minister of Foreign Affairs Lawrence Cannon assured the House of Commons that the documents would be handed over to a special committee in charge of looking into the issue. "There's a mandatory obligation on public officials to ensure that when information is released that it is in compliance with the Canada Evidence Act [to avoid security risks]," according to Minister of Defence Peter MacKay. However, opposition MPs and other critics have stated that this is an absurd argument, as Parliament has the constitutional right to have access to the documents uncensored. This view was shared by law professor Amir Attaran, who claimed he had personally seen the documents unredacted before through an access to information request. Regardless, the government has stuck to this line, and even boycotted an Afghan committee meeting, failing to make it meet quorum and rendering it useless.

On December 10, 2009, the House of Commons passed a motion requiring the release of unredacted documents concerning the Afghan detainees to the committee hearing the issue. However, the government has refused to abide by the motion. Critics repeated that the government was violating the Constitution of Canada and will be in contempt of Parliament if it continues to refuse to release uncensored documents regarding the Afghan detainee issue. On March 2, 2010, MP Derek Lee announced that, as soon as he can, he will introduce a privilege motion that calls for an official reprimand of Defence Minister Peter MacKay and a reproach of a Department of Justice official. If his motion is successful, it could see the Commons sergeant-at-arms using a never-before-exercised power to seize the documents which Parliament requested in December, 2009. He also wrote to the Governor General warning that she may need to wade into the fray if the government decides to keep flouting the December 2009 Parliamentary order to produce documents related to the treatment of Afghan detainees.

Justice Minister Rob Nicholson announced to the House of Commons on March 5, 2010 that former Supreme Court of Canada judge Frank Iacobucci was appointed to advise Nicholson if any "injurious" effects would result from making the Afghan detainee documents public. However, University of Ottawa law professor Amir Attaran pointed out that Iacobucci was not a sitting judge and therefore had no power except to give lawyer advice to Nicholson. The opposition expressed deep disappointment with the decision, saying that they did not doubt the competence of the former justice, but believed that it was nothing more than another way to delay the issue. On March 5, 2010, the Parliamentarians were not given a copy of the exact question that the government posed to Frank Iacobucci. While parliamentarians were not given the Terms of Reference posed to Iacobucci immediately, they were released on March 13, 2010.

The government finally released thousands of documents to MPs at the end of March 2010. The documents immediately drew fierce criticism by the opposition, because they were still heavily redacted. Specific criticisms included the "totally incoherent and totally disorderly" fashion of handing them out in a single copy and only in English (instead of both of Canada's official languages), and the fact that the still-existing redactions were merely a way to continue "hiding the truth" and "bide time to protect themselves." The government maintained that redactions are required to protect Canada, with Justice Minister Rob Nicholson stating they were done by "non-partisan public servants whose only interest is the protection of national security."

On March 18, the three opposition parties united in a bid to force the government to let them look at uncensored documents on the Afghan detainees affair or face parliamentary contempt proceedings. Specifically, they called on the Speaker of the Canadian House of Commons, Peter Milliken to rule that the government violated collective parliamentary privilege #5 in refusing to hand over uncensored documents on the transfer of Afghan detainees. MPs have claimed that the request from Parliament was based on "340 years of bedrock constitutional history", and that there are systems in place to decide what is and is not appropriate to release to the public. Referring to those "systems," Reg Whitaker noted that members of the "Military Police Complaints Commission, whose investigation of the Afghan detainee issue actually led to the calling of the parliamentary inquiry ... are [already] fully security cleared [to see the unredacted documents]."

The Speaker first asked for a comments from the government and the opposition on the matter. Those comments in Parliament came first from Peter MacKay and Rob Nicholson (representing the government), then from Derek Lee and Jack Harris (representing the opposition), then from Tom Lukiwski and Jim Abbott (again representing the government). After considering the matter for two weeks, the Speaker ruled on April 27, 2010 that Parliament had a right to ask for uncensored documents. He asked that all House leaders, ministers and MPs to come to a collective solution "without compromising the security and confidentiality contained."

The Speaker gave the House until May 11, 2010 to find a common ground, and there was speculation that if a deal was not reached, the government could make it a vote of confidence triggering an election, or ask the Supreme Court of Canada to hear the case. Both the Prime Minister and Opposition leader Michael Ignatieff stated they were willing to work together, but Harper repeated that it must be done in a way to not "break the law [or] order public servants to break the law, nor can it do anything that would unnecessarily jeopardize the safety of Canadian troops." MPs were cautiously optimistic about a deal in the initial meetings, stating there was "incremental progress," and there is was "emerging consensus" between all parties. MPs within the negotiations had to ask The Speaker for an extension of the deadline, as MPs started becoming stalemated on what should and should not remain secret. An extension until May 14 was granted, and a deal was reached that morning. A Memorandum of Understanding on the particulars was not established until June 16, when it was actually tabled in the House of Commons. It was still not agreed to by all political parties: The New Democratic Party refused to endorse the deal. There is still disagreements over whether the Speaker of the House had made unanimity a requirement, and whether the agreement was good.

A group of MPs began the task of going through over 40,000 documents related to Afghan detainees on 10 July 2010. The MPs, consisting of one member and one alternate from the Liberal, Conservative and Bloc parites, determines what is relevant to the allegations of abuse. An independent panel of jusrists determines how documents will be released publicly, in some cases censoring documents that may threaten national security, international relations, or soldiers in Afghanistan. This panel consists of Frank Iacobucci, fellow former Supreme Court justice Claire L'Heureux-Dubé and former B.C. Supreme Court judge Donald Brenner. Any documents that the government claims to contain legal advice may force the panel to determine whether to allow the MPs to see them.

Prorogation
On December 30, 2009, Parliament was put on hold, or 'prorogued' at the request of the Prime Minister. According to his spokesman, he sought this prorogation to consult with Canadians about the economy. The move caused cries from opposition MPs who labelled it as an attempt to "muzzle parliamentarians amid controversy over the Afghan detainees affair." Prorogation prevented the parliamentary committee from continuing to probe the issue. Although informal committee meetings continued, they had no power to compel testimony or grant immunity, and Conservative MPs would not be represented. Bob Rae has not ruled out a formal censure of the government in response to the prorogation of parliament preventing the parliamentary committee from investigating the issue.

Public opinion
An EKOS poll conducted in December 2009 revealed that 83% of the respondents believed the government knew Afghan detainees were tortured. This was a consistent result across all age groups, genders and geographic locations. It also concluded that 41% of respondents were dissatisfied with the governments transparency on the issue, and only 24% were satisfied. The remaining 35% were still undecided or had no opinion. As time progressed, 61% of Canadians still believed Afghan detainees were tortured in May 2010, according an Ipsos-Reid poll. This poll also found that 52% of respondents believed that Stephen Harper and Canadian soldiers knew torture was occurring, and 75% believed senior military officials would have known about the problem. A poll done by Angus Reid during January 5 and 6, found that 38 per cent of Canadians believed that Harper used the December 30, 2009 prorogation to curtail the Canadian Afghan detainee issue.

Videos

 * Government under attack over Afghan detainee abuse allegations (April 2007 video compilation of Parliamentary debates)
 * Canada's pro-democracy movement (includes footage of Colvin) Produced by Jesse Freeston, January 29, 2010; Publisher: The Real News (duration: 10:36)