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< class="what-entry-title">Read this: “The Guantanamo ‘Suicides’”>
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Black Hood, Orange Jumpsuit, Bored CopPhoto: takomabibelot

In an upcoming article in the March issue of Harper’s, Scott Horton reports on a possible (and ongoing) cover-up of the circumstances surrounding the death of three Guantanamo inmates in 2006.  According to Horton:

… new evidence now emerging may entangle Obama’s young administration with crimes that occurred during the Bush presidency, evidence that suggests the current administration failed to investigate seriously — and may even have continued — a cover-up of the possible homicides of three prisoners at Guantanamo in 2006.

Horton’s article — which relies in large part on interviews with camp guards present the night of the deaths and reports from Seton Hall University’s Center for Policy and Research (which, by the way, has done some impressive work reviewing and analyzing the government’s own documents to piece together the abuses and misconduct that has taken place in Guantanamo) — is a chilling account of death (likely) by torture, the government’s refusal to engage in a meaningful investigation of the deaths, and the possible existence of a black-ops site at Guantanamo itself.

Horton’s account of the Obama DOJ’s almost cursory dismissal of the evidence presented by the guards present on the night of the deaths is, of course, deeply troubling, and further exemplifies the serious lack of accountability and disregard of fundamental principles of the rule of law which continue to plague the entire Guantanamo regime.  Meanwhile, the federal government of Canada refuses to abide by a Federal Court order to seek the repatriation of Omar Khadr from Guantanamo, thereby abandoning one of its own citizens to — in the words of Horton — “an extra-constitutional prison camp.”

“The Guantanamo ‘Suicides’: A Camp Delta sergeant blows the whistle” (Harper’s)

ETA Dahlia Lithwick over at Slate has some very interesting commentary on why Horton’s article isn’t getting coverage in the American press (and a fairly thorough summary of the contents of Horton’s article, though it really deserves a full read).

“Too Terrible To Be True?  Why aren’t we talking about the new accusations of murder at Gitmo?” (Slate)

< class="what-entry-title">Seeing through airport scanner rhetoric>
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The BCCLA unpacks the Canadian response to the Underwear Bomber, pointing out critical flaws in the body scanning machines that will be appearing in Canadian airports in the near future. This article will break down the BCCLA’s complaints with the scanners, focusing on privacy concerns, weaknesses of the technology, and issues with the lack of public debate before the devices were purchased.

Unless you’ve spent the past month in a media vacuum, you know by now that on December 25, 2009, Umar Farouk Abdulmutallab allegedly attempted to blow up an airplane with explosive underpants.

The “Underwear Bomber” has since pleaded not guilty to charges of attempted murder and possession of weapons of mass destruction. For the next few weeks, what Bruce Schneier calls airport security theatre—attempts to do something (anything!)  for the sake of being seen to do something—became a theatre of the absurd.

In Canada, carry-ons were banned completely from U.S.-bound flights. Controversies erupted over what exactly could be brought onto a plane and who got to decide. Books were thought to be banned and then promptly unbanned. Travellers were told that they can’t be told what not to bring, because telling them would threaten security. Final decisions on many items not included on “the list” of approved items would be left to the discretion of airport screeners, and might vary based on criteria like the length of the flight.

While the carry-on restrictions and other new rules are both frustrating to travellers and illustrative of the knee-jerk reactions to obscure threats we’ve seen over the past few years (liquid bombers, shoe bombers), they pose few serious concerns for the BCCLA. The real threat to our liberties comes from what is set to be the real legacy of the Underwear Bomber—virtual strip search machines.

The BCCLA has several critical concerns with the scanners:

1. The privacy implications

A. Genital blurring bait-and-switch

When CATSA recommended the scanners for use in Canada in October, 2009 and placed its initial order for 7 of the machines, they were ordered without the ‘genital blurring software’ that had been in place during the Kelowna trial.

The images that have been plastered all over newspapers around the world are an example of what can seen with the genital blurring software enabled. That’s the picture below, center. To the left, you see the cartoony image that will be available to screeners interacting with passengers. To the right, you see what the scanners will see with genital blurring software disabled. These images are far more detailed and far more revealing.

B. Image retention and transmission

Canadians have been assured that the scanners being installed in Canadian airports will delete images after a passenger has passed through security screening, and will not have the capacity to save or send the images they capture. Putting aside the reality that screeners could just take photos of the image on their screen with their own cameras or even their cellphones, claims that the image cannot be saved or sent appear to be false.

Yesterday, the Electronic Privacy Information Center (EPIC) posted documents it has received as part of a lawsuit involving body scanners. The documents came from the Transportation Security Authority (TSA) in the United States, and detail administrative overrides on the scanning machines that would allow images of passengers to be saved and sent over the internet.

 

C. Secondary today, primary tomorrow?

One of the lessons of the war on terror has been that technology that is implemented for one purpose will soon be used for another. While Canadians are being promised that the machines will be used only for secondary screening and that concerned individuals can opt for a physical patdown search, how long will it be before we are told that it is necessary for these machines to be used in primary screening and without an option for a patdown?

The push for virtual strip search as primary screening has already begun in the U.S. and in Britain.

In the United States, body scanners are still mostly used as secondary screening, but they are a primary screening device in at least six airports, though patdown searches are also an option.

In Britain, travellers are being told that a random selection of passengers will be sent through the scanners, and they won’t have the option for a patdown instead:

Airline passengers will have no right to refuse to go through a full-body search scanner when the devices are introduced at Heathrow airport next week, ministers have confirmed.

The option of having a full-body pat-down search instead, offered to passengers at US airports, will not be available despite warnings from the government’s Equality and Human Rights Commission that the scanners, which reveal naked bodies, breach privacy rules under the Human Rights Act.

 

D. The patdown option

While some people say that they would prefer a body scan to a patdown search, the assured pressure to make scans more prevalent will disproportionately impact people whose religious beliefs include maintaining bodily modesty and people who have a profound dignity interest in preventing various items from being viewed, including those wearing incontinence garments, sanitary napkins, colostomy equipment, and so on.

 

E. Won’t someone think of the children?

In one of the more bizarre twists of the body scanner saga, concerns have been raised in the United Kingdom that scanned images of people under the age of 18 may run afoul of Britain’s child pornography laws:

A 12-month trial at Manchester airport of scanners which reveal naked images of passengers including their genitalia and breast enlargements, only went ahead last month after under-18s were exempted.

The decision followed a warning from Terri Dowty, of Action for Rights of Children, that the scanners could breach the Protection of Children Act 1978, under which it is illegal to create an indecent image or a “pseudo-image” of a child.

In Canada, minors have also been exempted, but this raises entirely new questions. How effective can the machines be if people under the age of 18 aren’t being screened?

 

2. The technology

A. Effectiveness

The BCCLA wholeheartedly agrees that security measures are necessary to make sure air travel is safe. However, it appears that the scanners being rushed into operation in Canada would not have detected the Underwear Bomber’s bomb, and in fact have difficulty detecting much that would not be detected by a metal detector. To quote security expert Bruce Schneier, body scanners are “not just a dumb idea, they don’t actually work.”

The failings of the body scanning technologies have been pointed out many times, including on this German TV clip showing a man bringing bomb making supplies through a scanner:

 

All varieties of body scanners available are good at picking up dense items, like metal or thick plastic, but looser items—powder, gels, or thin layers of plastic—are as invisible as your clothing. A 2007 report from the Committee on Assessment of Security Technologies for Transportation of the U.S. National Research Council found that “there is insufficient technology available to develop a system capable of identifying concealed explosives”, and recommended continued research before the systems are implemented.

Similar results have come out of the UK:

Yesterday, the London Independent reported on “authoritative claims that officials at the [UK] Department for Transport and the Home Office have already tested the scanners and were not persuaded that they would work comprehensively against terrorist threats to aviation.” A British defense-research firm reportedly found the machines unreliable in detecting “low-density” materials like plastics, chemicals, and liquids—precisely what the underwear bomber had stuffed in his briefs.

Even if the systems could detect explosives secreted on the surface of the body, they are not foolproof. They could not detect anything between folds of flesh or inside body cavities. Are cavity scans just around the corner?

 

B. Efficiency

The Kelowna trial also showed that the scanners would further slow the lines at airport security, processing people at only a fraction of the speed. Efficiency cannot be the deciding factor in what security measures are appropriate for airports, but when combined with the ineffectiveness, privacy concerns, and cost of the full body scanners purchased by CATSA, the additional time spent screening passengers is not worth it.

 

C. Health concerns

There are many health questions being raised around full body imaging systems, and the only definitive answer so far seems to be “we don’t know yet.” In all likelihood, the machines are safe. The American College of Radiation and American Roentgen Ray Society have both said they are not concerned by the technology. All the same, long term studies on the safety of millimeter wave technology have not been conducted, and the health impact on sensitive individuals—pregnant women, for instance—is still unclear.

 

 

3. The process

A. Lack of debate

The BCCLA has been monitoring the Canadian Air Transport Security Authority’s (CATSA) efforts to get the machines approved for and installed in Canadian airports for some time now. From June 2008 through January 2009, the machines were put through a trial at Kelowna International Airport in BC. The trial was cursory at best, designed to gauge passenger acceptance and not  test the efficacy of the machines. Based on those results, the machines were recommended by CATSA in September 2009, and seven were ordered before they had even been approved by the Privacy Commissioner of Canada. Finally, the machines were given approval by Canada’s Deputy Privacy Commissioner, Chantal Bernier, in October 2009.

On January 5th, Transport Minister John Baird announced that Canada will be installing 44 “body scanners”, virtual strip search machines that see through travellers’ clothing to reveal items concealed beneath. The first 12 of the scanners arrived in Canadian airports the week after.

On January 13th, Minister Baird claimed that the machines had been ordered months ago, and stressed the need to act immediately. “We’re taking the leadership in this. We have to move quickly and expeditiously.”

It’s very hard for politicians to say no to heightened security. They have to be seen to do something to respond to an attack, even if, as is the case with body scanners, that response wouldn’t have prevented the attack being responded to.

This type of security logic is badly broken. It amounts to an arms race, where security is geared toward the last attack that was tried, completely ignoring what might be tried in the future. Baird himself highlighted this issue, saying that, “We’ve always got to be raising our game, because the terrorists are always going to be changing theirs.” We’ve been “raising our game” ever since 2001; the benefits for safety are dubious and the cost to liberties has been high.

Ironically, the best security fixes since 2001 are incredibly non-intrusive, adapt to nearly every possible in-air terror plot, and costs the government next to nothing. Cockpit doors have been secured, and passengers now know they have to fight back. That knowledge—not shoe removal or naked scans—is what kept the shoe and underpants plots from being successful.

We need to sit back and think about that simple fix. We need to think about the real risks of terrorism and debate what measures are sensible to take to prevent it. The worst time to make decisions like that is in the emotional moments after an attack, yet we continue to do just that.

 

 

 

B. The body scan lobby

Michael Chertoff, founder of the Chertoff Group of security consultants and former head of the Department of Homeland Security, has been making the rounds on cable news promoting the use of body scanners in the wake of the attack. It was recently revealed in the Washington Post that Rapiscan, one of the manufacturers of body scanners, is a client of Chertoff’s company.

The conflict of interest apparent in the U.S. body scan lobby has made a difference in Canada, as well. The TSA’s assessment of body scanners weighed heavily in Minister Baird’s decision:

“We’re confident that these are the best machines available on the market and they are the only ones recognized by the (U.S.) Transportation Security Administration, so that was an important part of our decision.”

 

C. A better way

Where is the way forward on body scanners? There are several options.

The best option would be to hold off until the technology has improved, but that ship has sailed. If the scanners are deemed a necessity, there are options that are no more expensive, no less effective, and better at protecting privacy than the L-3 machines purchased by CATSA.

Some systems have a “privacy mode” that only show cartoon-like images of the body, highlighting areas where suspicious items are detected in red. There are also millimeter wave scanners that operate on exactly the same principles as the L-3 scanners, but do not generate images at all. Much like the metal detectors currently used in airports, these machines will sound an alarm if suspicious items are detected, and the individual who triggers the alarm can be searched physically.

< class="what-entry-title">Another blow to the security certificate system>
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photo / mvcorks

While the Parliamentary inquiry into the treatment of Afghan detainees may be dominating the headlines, the government’s security certificate system received another blow last week when the Federal Court quashed the certificate against Toronto resident Hassan Almrei.  The Syrian-born Almrei was arrested in 2001 after a security certificate was issued against him, and has been subject to its restrictions since.  This is the second security certificate to be quashed in recent months; in September, Montreal resident Adil Charkaoui was cleared after the government failed to produce sufficient evidence in support of maintaining the certificate against him.

Justice Richard Mosley’s 183-page opinion is a fascinating read and highly critical of the government’s use of outdated information and poorly-substantiated allegations in order to maintain the certificate against Almrei.  (Justice Mosley also filed a separate closed decision, which sets forth his analysis of facts that — due to their national security sensitivity — could not be divulged in a public decision.  Justice Mosley’s references to his closed decision, however, suggest that it too is critical of the government’s evidence and use of unreliable information.)

In his decision, Justice Mosley acknowledged that Almrei “was at the very least an opportunist willing, for a suitable fee, to violate Canada’s laws”, observing that he:

lied and engaged in criminal activities prior to and following his entry to Canada.  He maintained contacts with other Afghan Arab veterans, associated with persons who were believed to be Islamic extremists and made contact with others who were involved in human smuggling and the false document trade. He was prepared to assist others in obtaining those services and himself procured a false passport and other travel documents.

Based on this and other information quickly assembled by the government in the wake of the September 11 attacks, Justice Mosley “would have had no difficulty upholding” the certificate filed in 2001.  What Justice Mosley found troubling was the government’s failure to subsequently verify the accuracy of the information it gathered in 2001, and its reliance on outdated and unreliable information in order to keep Almrei in detention.

The public summary of the “Security Intelligence Report” setting out the government’s evidence against Almrei was reviewed by expert witness Professor Brian Williams, who not only opined that the report “was not written by experts”, but appeared as if the authors had

went to Google with about two weeks notice and cobbled the material together.

The decision goes into significant detail criticizing the sources cited upon by the government (such as Wikipedia, among other internet sources of dubious reliability).  The Court also criticizes the government’s selective use of testimony from human sources.  In one example, a source who had provided “implausible” information incriminating Almrei in 2001 (when the source was “highly motivated to curry favour” with the government) subsequently provided another account in 2004 which tended to support Almrei’s evidence.  However, in preparing the 2008 SIR, the government ignored the new evidence and chose to reiterate the 2001 account.

Accordingly, Justice Mosley found

it troubling that the work done to prepare the new SIR in 2008 had not kept pace with developments in the field.  And the sources relied upon by the Service were often non-authoritative, misleading, or inaccurate. . . . [T]he SIR presented in 2008 simply recycled stale information without attempting to offer a more balanced and nuanced view.

Justice Mosley was also critical of the government’s “evidence” linking Almrei to Al Qaeda and other terrorist organizations, which consisted primarily of assertions that Almrei shared many of the same ideological views as members of Al Qaeda.  As the Court observes:

As I understand the Ministers’ position, anyone who shares the principles of Al Qaeda and is in some way linked to it is a member of the Bin Laden network.

. . .

[However,] individuals and groups who have no connection with Al Qaeda cannot be said to be part of the network without some other indicia of membership such as willingness to follow directions from Bin Laden.  It is not enough, in my view, to assert membership in an organization merely on the basis of a shared ideology.  That is what I believe the Ministers have been attempting to do in this case.  They can’t establish that Almrei is a member of Al Qaeda or an affliated organization and have attempted to bring him within the scope of this amorphous concept of a network based on his belief and participation in jihad.

An “unrestricted and broad” interpretation of organization does not encompass those who have expressed views that are sympathetic to the ideology of Bin Laden and Al Qaeda and approval of the actions they have taken.  That is far too broad a net to cast and would be incompatible with the freedom of expression guaranteed by our Charter.

As a result, the Court found that the government had breached its duties of utmost good faith and candour with respect to Almrei:

The duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case.  That was not done in this instance.  The 2008 SIR was assembled with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment.  As [CSIS agent Robert] Young observed, in an unguarded moment, they thought that they had done their job in 2001 and there was no need to continue the investigation.

This decision is noteworthy in several respects.  First, it highlights the crucial importance of access to the government’s evidence in these cases.  It wasn’t until after the Supreme Court’s decisions in Charkaoui I (2007) and Charkaoui II (2008) that “special advocates” — security-cleared lawyers who are permitted to review classified and sensitive evidence on behalf of the individual subject to the security certificate — were appointed and that the government was required to retain and disclose all materials relevant to the security certificate, not just the information that bolstered the government’s case.  Here, once the government was compelled to disclose its evidence and submit its witnesses to cross-examination by the special advocates, the weaknesses in its case against Almrei were exposed.

Second, this decision is important in what it didn’t do — opine on the constitutionality of the security certificate regime as a whole.  (Keep in mind that under the special advocate system, certain sensitive evidence made available to the special advocate will not be made available to the subject of the security certificate himself because of “national security concerns”, which means that the individual with the best knowledge of the facts and the most at stake in the case cannot assist his counsel in examining the evidence.)

Because Justice Mosley found that Almrei’s certificate could be quashed based solely on the lack of sufficient evidence, he declined to determine whether the security certificate regime itself comports with the Charter.  Nonetheless, without engaging a full-blown constitutional analysis, he makes the following observation in support of the status quo:

I think it is important to comment, however, on [Almrei’s] argument that he was denied procedural fairness because of the lack of full disclosure.  It is my view that the essential elements of the government’s allegations against Mr. Almrei were disclosed to him in these and the prior proceedings.  Based on his testimony and the submissions made on his behalf, Mr. Almrei was clearly aware of the Ministers’ allegations against him.  He was not given full disclosure of all of the closed information that supported the Ministers’ case, such as human source reports, but that was unavoidable in the circumstances.

In the Matter of Hassan Almrei (Federal Court decision)

ETA: Lawyers Weekly features an interview in this week’s edition with the public counsel and special advocates in the Almrei case, where they discuss the questionable constitutionality of the security certificate system and why, in this case, special advocates worked.

Security certificate quashed by court (The Lawyers Weekly)

< class="what-entry-title">Photo of the day: Empty chairs (UPDATED)>
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Empty chairs, courtesy CBC

Conservative MPs boycotted the Tuesday emergency meeting of the parliamentary committee looking into allegations that Canadian Forces transferred Afghan detainees to torture. The seven Conservative MPs on the Committee left their chairs empty while Opposition MPs tried to figure out what had happened.

This latest stalling tactic comes amidst rumours that Prime Minister Harper may ask that Parliament be prorogued for the second time in two years. Along with killing all the bills before the House of Commons and Senate, a prorogue would have the convenient effect of shutting down the Committee until at least March, keeping Ministers out of the hot seat over the torture of Afghan detainees.

ETA:  ‘Tis not the season to be investigating complicity in torture, it seems.  The Tories are justifying their boycott thusly, according to the Globe and Mail:

The Tories defended their decision by saying there’s no urgency to hold more hearings in the holiday period.

“It’s not the time to be having meetings that are implying, intentioned or not, that Canadians are somehow guilty of war crimes,” [said] Laurie Hawn, the parliamentary secretary for the Defence Minister.

The Conservatives have, of course, been arguing against establishing a public Commission of Inquiry into detainee transfers, stating that the matter should be handled by the Special Committee.  This boycott — and the Harper government’s refusal to provide unredacted copies of relevant documents to the Special Committee, despite a Parliamentary motion to do so — illustrates the emptiness of the government’s commitment to determining whether Canada is knowingly complicit in torture.  And this is precisely why we need a public Commission of Inquiry immediately.

< class="what-entry-title">Colvin’s rebuttal>
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This morning, Richard Colvin delivered a 16-page letter to the Special Committee on Afghanistan, setting out additional evidence and rebutting his government critics. The letter is worth reading in its entirety, but here are some of the highlights.

First, Colvin counters the assertion by government witnesses that they were “not told” of the risk of torture. He summarizes the contents of six memoranda written by Canadian diplomats in 2006 warning of detainee abuse and describes a March 2007 interagency meeting in Ottawa.  According to Colvin, at this meeting, he informed 12 to 15 officials that:

“The NDS tortures people, that’s what they do, and if we don’t want our detainees tortured, we shouldn’t give them to the NDS.”  (The NDS, or National Directorate of Security, is Afghanistan’s intelligence service.)  The response from the Canadian note-taker was to stop writing and put down her pen.

He also details reports from the US State Department and the United Nations, confirming the systemic abuse of detainees in Afghanistan and use of torture by the NDS:

In other words, freely available documents from highly credible sources — including the United States Government and the United Nations — warned of “torture,” including specifically by the NDS.

(That is, Colvin is not merely a “Taliban dupe”, as some critics have suggested, unless the US State Department and the UN have been likewise duped.)

Colvin also challenges the idea that embassy reporting was based only on “second-hand” or “third-hand” evidence, noting that reports on detainees were based on information gathered from intelligence services, other embassies and diplomatic missions, and authoritative human rights bodies.  He further remarked that:

Diplomats traffic in information.  We seek out the most authoritative sources, build a relationship with those individuals, and report their information. . . . Information was cross-checked and triangulated.

Next, Colvin challenges the assertion made by witnesses that once the Canadian government was made aware of the risk of torture, steps were taken to prevent it from happening.  Colvin bluntly states:

All of this information — internal reporting from Canadian officials in the field, reports from the US and interventions with policy-makers — had no visible impact on Canadian detainee practices.  From February 2006 (when the Canadian battle group first deployed) to May 3, 2007 (when Canada signed a new Memorandum of Understanding on detainees that  gave us the right to monitor) our detainees continued to be transferred to the NDS, despite a substantial risk of abuse or torture.

. . .

Even after the new MOU was signed, Ottawa for the first five months did not send a dedicated DFAIT monitor to conduct the monitoring.  Monitoring in Kandahar was implemented by a rotating pool of officers, some on very short deployments.  As a result, Canadian detainees in NDS custody in Kandahar remained at risk of torture.  When a dedicated monitor was finally sent out in late October 2007, he quickly found conclusive evidence of continued torture.  This finally triggered a Canadian decision to stop transfers.

With respect to the allegation that Taliban detainees are trained to claim torture, Colvin points out, as deputy Task Force Afghanistan commander Lt. Cl. Tom Putt did in his testimony before the Military Police Complaints Commission, that the Afghans detained by Canada were largely “local yokels” — not literate, highly educated international jihadists like al-Qaeda terrorists.  According to Colvin, there is no Taliban equivalent to the al-Qaeda “Manchester manual”, which contained the instruction that upon capture, detainees should claim torture early and often.  Colvin also points out that of the four detainees he interviewed, none first alleged torture.

Colvin rebuts the notion that Canadian forces had no option but to hand over detainees to the NDS, setting out at three other viable alternatives proposed by the embassy, but ultimately rejected by the government.

He sharply counters the government’s testimony that Ottawa encouraged full reporting and that embassy reports were not censored, providing detailed examples of incidents in which David Mulroney, Arif Lalani, and Colleen Swords gave instructions to limit reporting on information that “conflicted with the government’s public messaging.”

He also addresses issues concerning his credibility, why he has spoken up the way has, and how information is provided to ministers and generals.

All in all, a measured, compelling, and strong rebuke to the spin that the government and its witnesses have been putting on Colvin’s original testimony.

Richard Colvin’s December 16, 2009 Letter to the Special Committee on Afghanistan (available from the CBC)

< class="what-entry-title">What’s behind the black boxes?>
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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.

< class="what-entry-title">Canadian Forces’ U-Turn: Detainee was abused>
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It’s interesting that General Walter Natynczyk wasn’t briefed on the case that the BCCLA and Amnesty International launched against the Canadian Forces in 2007. If he had been, he wouldn’t have been compelled to call a news conference today to correct false information he gave to the Commons committee on Tuesday.

Chief of Defense Staff Canadian Army Gen. Walter Natynczyk

Yesterday, the top military commander denied that there was evidence that a detainee who was beaten by Afghan police was handed over to Afghans by Canadian troops in 2006. Today, Natynczyk did a complete about-face and admitted that the man was indeed captured by Canadian troops. Natynczyk’s embarrassing turnaround is the lead story today in the Globe.

Our litigation uncovered information related to the transfer of the beaten Afghan man in 2007. Colonel Stephen Noonan told us about the existence of the man. Noonan stated in his affidavit filed in the litigation:

There was one incident in which the CF took custody of [sic] detainee who had been turned over to the local ANP by the CF. In this case, the CF learned that the detainee had been beaten by the local ANP. When they learned of this, they approached the local ANP and requested that the detainee be given to them. The ANP complied and the CH subsequently transferred the detainee to the Provincial ANP.

Documents we received after Noonan filed his affidavit reaffirmed that the detainee Noonan referred to had been captured by the Canadian Forces – and that the transfer occurred before Canada and Afghanistan entered into the second agreement. The documents revealed that when the Canadian Forces examined the man, they discovered “a large contusion, cause from blunt force trauma to the back of his neck and shoulder contusions/abrasions on the upper back”. “Further examination revealed apparent shoe prints on the back of his vest/clothes.  These marks were consistent with his reports…of being beaten with shoes.”

Our lawyer, Paul Champ, cross-examined Brigadier General Joseph Deschamps on this very issue. See the transcript from our lawsuit at para. 81.

Finally the Canadian Forces are waking up to the information that has been right in front of them for years. Who knows, maybe they’ll even get around to reading those pesky human rights reports.

< class="what-entry-title">Torture hearings liveblog: Peter MacKay>
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Today is the last session of the Special Committee on the Canadian Mission in Afghanistan before Parliament closes shop for the year. It promises to be an explosive day of testimony, as key government figures will be appearing, including the embattled Minister of National Defense, Peter MacKay.

MacKay’s repeated assertions that there have been no substantiated cases of transferred detainees being tortured or abused were challenged earlier today by Chief of the Defence Staff Walter Natynczyk. Natynczyk had backed up MacKay’s denials in his appearance before the committee but changed his story in a dramatic press conference this morning. The BCCLA’s thoughts on Natynczyk’s reversal are available here.

The video stream of the proceedings will be available on ParlVU when the committee meets at 12:30 Pacific time, 3:30 Eastern. We’ll also be live blogging our thoughts on the proceedings here, and posting a full summary later this evening.

—

LIVEBLOG

  • 2:22 – Meeting adjourned before an answer can be given.

  • 2:20 – Claude Bachand – I would like to be able to get answers about responsibility to know. What do you have to say about ministerial responsibility to know. Where is the ministerial responsibility?
  • 2:19 – MacKay – We’re concerned with detainees that we had taken in the field and then turned over. Hundreds of allegations are of great concern, but our focus and responsibility is on the prisoners that we’ve turned over.
  • 2:19 – Lalond – Were you or were you not aware of IAHRC’s report detailing torture in Afghan prisons?
  • 2:17 – MacKay – Cites Colleen Swords testimony – DFAIT became aware of ICRC being concerned about notification of transfers and over capacity. We took action. By Feb 2007 we had experts on the ground to increase capabilities and capacities of Afghan prisons.
  • 2:15 – O’Connor – We inherited a bad transfer agreement. We upgraded the agreement.
  • 2:13 – Francine Lalond, questions for O’Connor – Ministers have a responsibility to know things, not just to receive but to be informed. Were you aware of report prepared by IAHRC dealing with 398 prisoners that were tortured, 57 of them who were from Kandahar? Do you have responsibility to know about these things?
  • 2:10 – MacKay – Outrageous allegations that we would knowingly collude in sending anyone to torture. Completely without basis or proof that MacKay has personally withheld documents or evidence. MPCC chair made a choice to suspend hearings.
  • 2:09 – Dosanjh – International law – you don’t need actual knowledge of torture or specific allegations, just circumstantial evidence and overall risks. You had this but continued transfers. MPCC is sufficient? No, it has been obstructed. Frustrated committee by not providing disclosure. “You allowed our prisoners to be sent to torture, despite substantial knowledge of the risk of torture.”
  • 2:07 – MacKay – Ministers get information from deputies, etc. Information flows up through government departments to a minister for a decision. This is synthesized from many sources, seen through sources of diplomats and military. Some information we’ve heard came from emails sent in. Ministers’ inboxes receive thousands of emails brought forward for decision.
  • 2:06 – Dosanjh interrupts, speaker turns off mic.
  • 2:04 – MacKay – Discusses improvements in the new agreement. We didn’t deny general concerns, but when there were specific concerns, they were investigated.
  • 2:04 – Ujjal Dosanjh, question for MacKay – Asks for MacKay to step down.
  • 2:02 – Questions beginning.
  • 1:59 – “If I were asked to pick between a Corrections Canada Officer and an al-Qaeda tactic, I would pick Corrections Canada ten times out of ten” re: prisoners complaining of abuse.
  • 1:56 – “Can we shoulder responsibility for everything that happens in Afghan prisons? Of course not.”
  • 1:53 – Wonders why people are “fixated on the wellbeing of individuals who are suspected of being our enemies in this conflict” and to remember our own troops’ sacrifices… many detainees “had Canadian blood on their hands”

 

  • 1:48 – Hon. Lawrence Cannon, Minister of Foreign Affairs making opening statements

  • 1:47 – (Ed.- Is it really called the “Taliban prisoner transfer regime” or is that just a MacKayism?)
  • 1:45 – MPCC currently investigating detainee transfers. Federal Court has limited their jurisdiction, so it should resume soon.
  • 1:44 – Re: Colvin comments – Says at least seven witnesses say there is insufficient evidence to back up claims that were made. Not personal, and have never said “Taliban dupe”.
  • 1:43 – Careful review of information disclosed, vetted by all departments involved. Well-established procedure, free from political interference. Has been reviewed by Federal Court.
  • 1:43 – Must also protect relationships with partners in Afghanistan.
  • 1:42 – Have been concerns with disclosure, but gov has critical obligation to insure that lives of Canadians are not put at additional risk by the potential release of information that may be of an operational security nature.
  • 1:41 – Hon. Minister of National Defence Peter Mackay resuming opening statement.
  • 1:40 – Meeting called back to order.
  • 1:30 – Hearing still suspended. Will they extend the hearings past 3:30 or will time for questions be cut in half?

  • 12:56 – Hearing suspended for vote in House of Commons
  • 12:54 – Must rely on Afghans to meet their commitments, but must be sure that we are not transferring into a substantial risk of abuse, and that’s what we did.
  • 12:53 – Took allegations of abuse seriously and acted appropriately. Worked to make sure Afghan authorities were aware of Canada’s expectations. Reminds committee that Afghanistan is a sovereign nation.
  • 12:52 – Made new agreement because of concerns over prisoners’ conditions. Designed to enhance ability to meet obligations, both by Canada and Afghanistan.
  • 12:51 – Received information from a wide variety of sources. Considered information and used it to see how the arrangement could be improved. This led to May 2007 Supplementary Arrangement.
  • 12:51 – Received assurances from Afghan government that prisoners would be treated humanely.
  • 12:49 – Canada’s practices grounded in international law – laws of armed conflict, Geneva Convention.
  • 12:46 – It’s a difficult and dangerous mission. (Ed.- Yes, but what does that have to do with Canada’s obligations to prevent torture?)
  • 12:46 – Says Canada has never been complicit in torture or willfully blind to abuse, no one ever turned a blind eye
  • 12:45 – Hon. Peter Gordon MacKay, Minister of National Defence making opening statements
  • 12:44 – No abuse by Canadians, no condoning of abuse by Afghanis.
  • 12:42 – During visits never heard allegations of torture, never read reports from Colvin.
  • 12:40 – Says accusations of a coverup are “irresponsible”.
  • 12:39 – NATO recommended handing over prisoners within 96 hours of capture, “during my time as Minister I do not recall ever being advised of any abuse or torture of prisoners by Canadian Forces or any abuse or torture of prisoners they handed over”
  • 12:38 – O’Connor describing tactics used by Taliban – IEDs, etc.
  • 12:37 – Hon. Gordon O’Connor, Minister of State and Chief Government Whip making opening statements
  • 12:14 – Waiting for the hearings to begin. Check back in 15 minutes.
< class="what-entry-title">Proof of detainee abuse>
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Today, the Globe and Mail’s Paul Koring reported on evidence contradicting Defence Minister Peter MacKay’s repeated assertions that there has never been proof that Canadian-transferred detainees were abused by Afghan security forces.  This evidence was uncovered during the federal court challenge the BCCLA launched with Amnesty International.

From the Globe and Mail:

In one well-documented case in the summer of 2006, Canadian soldiers captured and handed over a detainee who was so severely beaten by Afghan police that the Canadians intervened and took the detainee back. Canadian medics then treated the man’s injuries. The incident is documented in the field notes of Canadian troops, recounted in a sworn affidavit by a senior officer and confirmed in cross-examination by a general.

The incident, which was previously known, takes on new and greater significance given the chorus of denials from Mr. MacKay.

The Globe and Mail also has a tidy round-up of MacKay’s repeated denials of detainee abuse.

Proof of detainee abuse exists, despite MacKay’s denials (Globe and Mail)

Verbatim: MacKay on detainees (Globe and Mail)

< class="what-entry-title">Richard Colvin Documents>
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Welcome to the BCCLA’s National Security blog.  Right now, we’re tracking the Afghan detainee hearings in Parliament and will be providing commentary and updates as testimony progresses.

Today, documents that support Mr. Richard Colvin’s testimony are being made publicly available for the first time by the BCCLA and Amnesty International.

Mr. Colvin, a senior diplomat who was stationed in Afghanistan, recently testified before a parliamentary committee that Canadian officials at the highest levels of seniority were made aware of serious concerns that Afghan prisoners were being subjected to torture and other human rights violations.

Prior to his testimony before Parliament, Mr. Colvin was called as witness before the Military Police Complaints Commission. The documents that are being released today were originally released to the Military Police Complaints Commission after being heavily censored by the Canadian government.

The BCCLA and Amnesty received those documents on November 23, 2009, but confidentiality agreements prevented the BCCLA and Amnesty from making the documents public. Those confidentiality agreements were lifted today, so the BCCLA and Amnesty are making those censored documents available to the public in their entirety.

The documents contain a series of 2006-2007 email correspondences and reports shared between officials involved in the Canadian mission in Afghanistan. They discuss detainee transfer agreements and the possibility that detainees transferred by Canadian Forces could be tortured by Afghan police.

The BCCLA and Amnesty are shocked that many of Mr. Colvin’s documents were not disclosed during the course of the lawsuits our organizations launched in 2007 and 2008. The government failed to disclose these documents despite the fact that they were obviously of direct relevance to the issues before the court and were certainly covered by requests for disclosure of documents that were made by our legal team. There is a legal duty for parties to disclose such documents, and the failure to disclose these documents raises serious questions about whether the government met their legal obligations.

The documents focus on inadequate tracking mechanisms that sometimes lost track of transferred detainees, and Richard Colvin’s concerns that Canadian Forces were sending detainees into almost certain torture at the hand of Afghan police.

The messages from Mr. Colvin became increasingly blunt as the severity of the situation and the government’s failure to address the situation became clear. He summed it up best in an email dated October 24, 2007:

“There seems to be a continued reluctance to acknowledge the scope or severity of the detainee problem, instead claiming that the “alleged” abuse is a Taliban fabrication or stressing fictitious ‘Afghan investigations.’ Our systemic failure to operationalize our human-rights rhetoric runs contrary to Canadian values and interests, and has needlessly damaged public support for the Afghan deployment.”

The documents are available online here.

To learn more about the BCCLA’s work on Afghan detainee issues and how you can help in the fight against torture, please visit our Afghan detainee section.

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