Mr. Richard Colvin (First Secretary, Embassy of Canada to the United States of America):
Thank you, Mr. Chair, and thank you to the committee for convening this session.
I would like to thank the committee for its interest in this important issue.
In this public setting, I will do my best to shed light within the limits imposed by my professional obligations, such as protecting the confidentiality of sources.
This presentation will take about 15 minutes. But I am ready to answer your questions afterwards, in French or in English.
A little bit of background: I joined the Department of Foreign Affairs and International Trade in 1994. I've had five overseas assignments, in Sri Lanka, Russia, the Palestinian territories, Afghanistan, and now in Washington, D.C. Afghanistan was therefore my second Islamic posting and third insurgency.
I spent 17 months in Afghanistan, first as a senior DFAIT representative of the provincial reconstruction team, or PRT, in Kandahar, and then for over a year at the Canadian embassy in Kabul as the head of the political section and chargé d'affaires—that is, the acting ambassador.
In these capacities, I was responsible for a large number of issues, including getting additional Afghan police and soldiers to Kandahar to relieve Canadian Forces; development issues; counter-narcotics; coordination with our NATO allies, the UN, and the Afghan government; and security and intelligence files. Detainees was only one of about 15 major issues I worked on. My primary focus was on improving the effectiveness of our efforts so that we had a better chance of achieving our goals.
I volunteered to go to Afghanistan. Canada's objectives are noble: to help bring peace, prosperity, and hope to Afghans after 30 years of war and the repressions of the Taliban.
I'd like to start with two general comments. First, Afghanistan was an extraordinarily difficult environment. Canada had not fought a war since the Korean War 50 years earlier and had not fought a counter-insurgency since the Boer War, 100 years ago.
Insurgency is the most complicated, demanding, and subtle of wars. There are vital geopolitical and security interests at play in Afghanistan. Kandahar is the most important province in the whole country, and most important, lives are on the line—Canadian lives and also Afghan lives. Afghanistan is not some bureaucratic exercise. It was therefore critical that we approach this daunting challenge with seriousness and also humility, and with a willingness to listen, to learn, and to adjust.
Second, I was very proud to have served in Afghanistan alongside the courageous and professional men and women of the Canadian Forces, including Canada's military police. The focus of our attention, in my view, should not be on those who obeyed their chain of command, which soldiers are obliged to do. Instead, any responsibility for Canada's practices toward detainees lies, in my view, with the senior military officers, senior civilian officials, and the lawyers who developed the legal framework, designed the policies and practices, and then ordered that they be implemented.
What was the nature of our detainee system in Kandahar? Perhaps a good place to start is to compare our practices to those of our principal NATO allies in southern Afghanistan: the United Kingdom and the Netherlands. What we were doing differed in five crucial respects.
First, we took and transferred far more detainees. As of May 2007, Canada had transferred to the Afghan authorities six times as many detainees as the British, who were conducting military operations just as aggressive as ours and had twice as many troops in theatre, and we had transferred twenty times as many detainees as the Dutch.
Second, we did not monitor our own detainees after their transfer. Again, unlike the British and Dutch, Canada's memorandum of understanding on detainees, signed by General Rick Hillier in December 2005, had no provision for our own officials to follow up on what happened to our detainees after they were handed to the Afghan intelligence service, the NDS, or National Directorate of Security.
Instead, our detainee system relied upon two human rights groups to monitor the well-being of detainees after transfer: the Afghanistan Independent Human Rights Commission, or AIHRC, and the International Committee of the Red Cross. Unfortunately, the AIHRC had very limited capacity, and in Kandahar were not allowed into the NDS prisons. So for the purposes of monitoring our detainees, they were unfortunately quite useless.
The Red Cross is a very professional and effective organization. However, they were also no good for us as monitors. Once a detainee had been transferred to Afghan custody, the Red Cross, under their rules, could only inform the Afghan authorities about abuse. Under those strict rules, they are not permitted to tell Canada.
The third important difference is that, again unlike the Dutch and British, Canada was extremely slow to inform the Red Cross when we had transferred a detainee to the Afghans. The Canadian Forces leadership created a very peculiar six-step process. Canadian military police in Kandahar had to inform the Canadian Forces command element at Kandahar airfield, who in turn informed Canadian Expeditionary Force Command, or CEFCOM, in Ottawa.
CEFCOM would eventually inform the Canadian Embassy in Geneva, who then informed Red Cross headquarters in Geneva, which finally was able to notify the Red Cross mission in Kandahar. This process took days, weeks, or in some cases up to two months.
The Dutch and British military, by contrast, had a one-step process. They simply notified the Red Cross office in Kandahar directly. The Dutch did so immediately upon detaining an Afghan, and the British within 24 hours.
In other words, in the critical days after a detainee was first transferred to the Afghan intelligence service, nobody was able to monitor them. Canada had decided that Canadians would not monitor. The AIHRC could not do so, because they had very weak capacity and were not allowed into NDS jails. The Red Cross in practice could not do so either, because we did not inform them until days, weeks, or months after we had handed over the detainee.
During those crucial first days, what happened to our detainees? According to a number of reliable sources, they were tortured.
The most common forms of torture were beating, whipping with power cables, and the use of electricity. Also common was sleep deprivation, use of temperature extremes, use of knives and open flames, and sexual abuse--that is, rape. Torture might be limited to the first days or it could go on for months.
According to our information, the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar, it was standard operating procedure.
A fourth difference between us and the British and Dutch was our unusually poor record-keeping. This had serious consequences. When the Red Cross was finally informed that we had transferred a detainee, not only had a lot of time passed, but the information that Canadian Forces had taken was so limited that the Red Cross was often unable even to locate our detainees.
Another consequence was that we ourselves did not know about the fate of a given detainee after transfer. Was he still in detention? Had he been released? Had he been transferred to a third party? Had he died under torture or been executed? We had no idea.
Once Canada did sign a new memorandum of understanding on May 3, 2007, we tried to go back to figure out what had happened to the large number of Afghans we had already transferred. However, our records were so poor that the task was physically impossible.
I'll offer a concrete example. In June 2006 an Afghan woman came to the PRT in Kandahar. She had three young children with her, including an infant of six or eight months who was listless and visibly sick. The woman's name was Fatima. It was, in my view, an act of considerable courage for her to pass through checkpoints to our heavily fortified compound to talk to a foreigner. Her husband, Bismillah, was a taxi driver. One day he had gone to work but had never come home. Fatima came to the PRT to ask if Canada had detained him. I tried to answer her question, but Canadian records were so hopeless that I was unable to.
The final difference, which is a very important one, is that Canada, unlike the U.K. and the Netherlands, cloaked our detainee practices in extreme secrecy. The Dutch government immediately informed the Dutch Parliament as soon as a detainee had been taken. The Dutch also provided their Parliament with extremely detailed reporting on every stage of detention and transfer and on the results of monitoring after transfer. The U.K. also announced publicly the number of their detainees.
The Canadian Forces, by contrast, refused to reveal even the number of detainees they had taken, claiming this would violate operational security.
When the Red Cross wanted to engage on detainee issues, for three months the Canadian Forces in Kandahar wouldn't even take their phone calls. The same thing happened to the NATO ISAF command in Kabul, who had responsibilities to report detainee numbers to Brussels. They were told, “We know what you want, but we won't tell you.”
Frankly, the operational security argument makes no sense to me. If we go into a village and take away three Afghans, everyone in the village knows exactly who we have taken. In practice, the information was being concealed not from the Taliban but from the NATO ISAF, the Red Cross, and the Canadian public.
To recap, Canada took far more detainees than the British and Dutch. Unlike our NATO allies, we conducted no monitoring. Instead of hours, we took days, weeks, or months to notify the Red Cross, which meant that nobody else could monitor. We kept hopeless records, and, apparently to prevent any scrutiny, the Canadian Forces leadership concealed all this behind walls of secrecy.
As I learned more about our detainee practices, I came to the conclusion that they were contrary to Canada's values, contrary to Canada's interests, contrary to Canada's official policies, and also contrary to international law. That is, they were un-Canadian, counterproductive, and probably illegal.
Starting in May 2006, as we in the field became aware of the scope and severity of these problems, we began informing Ottawa about them. We used the means available to us--that is, written reports and verbal briefings--to alert senior officials in both DFAIT and the Canadian Forces about the grave deficiencies of our detainee practices and their grave consequences.
It was our function, responsibility, and obligation to provide such information and analysis. That was our job. The concerns we expressed reflect, I believe, the mainstream views and values in both DFAIT and the Canadian Forces. A number of my closest military colleagues in Kandahar were extremely troubled by what we were doing with detainees.
We on the ground in Kandahar, civilians and military, informed DFAIT and the senior military leadership about the notification problems with the Red Cross, the delays and the inadequate information. We informed them about our very serious concerns about what was happening to detainees after transfer. We informed them about the lack of information being given to NATO.
In our annual human rights report at the end of 2006, we informed them about systemic problems of torture in Afghan jails.
By March 2007 we were orally warning Ottawa that the NDS tortures people, and if we don't want our detainees tortured, we shouldn't hand them to the NDS.
On April 24 and 25, 2007, as the detainee issue was becoming a political crisis in Ottawa, the embassy sent two reports that offered Ottawa a solution: to protect our detainees from being tortured, we should adopt the British and Dutch approach--that is, take responsibility for our own detainees, monitor them ourselves, and establish a robust, aggressive, and well-resourced monitoring mechanism that would guard our detainees from further risk of abuse.
Senior officials in DFAIT and the Canadian Forces did not welcome our reports or advice. At first we were mostly ignored. However, by April 2007 we were receiving written messages from the senior Canadian government coordinator for Afghanistan to the effect that we should be quiet and do what we were told. There was a phone message from the DFAIT assistant deputy minister suggesting that in future we should not put things on paper but instead use the telephone.
In May 2007 a new ambassador arrived. Immediately thereafter, the paper trail on detainees was reduced. Written reporting from the field was restricted to a very limited circle of officials, which shrank further over time. Reports on detainees began sometimes to be censored, with crucial information removed.
By summer 2007, internal censorship had spread to new areas. For example, we could no longer write that the security situation in Afghanistan was deteriorating, even though everyone knew that it was.
In terms of established DFAIT practice, all of these steps were extremely irregular.
By the end of April 2007, senior officials in Ottawa did accept the embassy's recommendations from April 24 and 25. On May 3 we signed a new MOU with the Afghan government that for the first time gave us the right to monitor. DFAIT accepted responsibility for that monitoring. However, the other part of our advice was not implemented--that is, to monitor effectively, we needed new resources, at a minimum one full-time officer, to conduct the monitoring as well as to manage the relationships with NDS, NATO allies, human rights partners, and other partners.
Instead, for the first five months of our new detainee regime, monitoring was done by a succession of officers, some of whom were in the field on short visits of only a couple of weeks. There was too little capacity and not enough continuity. The result was that despite the new MOU, some of our detainees continued to be tortured after they were transferred.
It was only in October 2007 that DFAIT's senior leadership finally sent a dedicated monitor to Kandahar. Within weeks, he found incontrovertible evidence of continued torture. An Afghan in NDS custody told him that he had been tortured, showed him the marks on his body, and was able to point to the instrument of torture, which had been left under a chair in a corner of the room by his interrogator.
Up to that point, we had done what we could to monitor in Kandahar, and also once in Kabul, the existing pool of detainees, at least those we could locate. Canadian officials interviewed numerous Afghans who gave very credible allegations of torture and who still had, in several cases, marks on their bodies. But they'd all been tortured before May 3, when the new MOU came into force.
The late October 2007 case was, I believe, the first instance after May 3 that we became aware of. However, because our monitoring regime was ineffectual, there may well have been other cases.
October 2007 was 17 months after the PRT first informed senior officials in the Canadian Forces and DFAIT about the very grave dangers facing our detainees after transfer. In other words, for a year and a half after they knew about the very high risk of torture, they continued to order military police in the field to hand our detainees to the NDS. As far as I know, Canada, even today, continues to transfer detainees to the NDS in Kandahar.
In October 2007 I left Afghanistan and started a new job in Washington, D.C. In April 2009 I was subpoenaed by the Military Police Complaints Commission. In response, DFAIT, in collaboration with the Department of Justice, took three significant steps.
First, they've made it very difficult for me to access legal counsel. This ongoing problem has still not been resolved.
Second, DFAIT and the Department of Justice, again working together, blocked my access to my own reports from Afghanistan. I was told, “We will decide which of your reports you require.” I was given none of them.
Third, government lawyers have threatened me under section 38 of the Canada Evidence Act. This had the effect of placing me in an impossible position. If I refused to cooperate with the MPCC subpoena, I could be jailed for up to six months; however, if I did cooperate, under section 38 I could be jailed for up to five years. And when this warning was sent, DFAIT and the Department of Justice, again acting together, were still withholding approval for legal counsel, depriving me of legal advice and protections.
I have a final section. I hope I'm not taking too long.
As a final section, asking kind of a rhetorical question, even if Afghan detainees were being tortured, why should Canadians care? I think there are five compelling reasons.
First, our detainees were not what intelligence services would call “high-value targets”, such as IED bomb-makers, al-Qaeda terrorists, or Taliban commanders. High-value targets would be detained under a completely different mechanism that involved special forces and targeted intelligence-driven operations. The Afghans I'm discussing today were picked up by conventional forces during routine military operations, and on the basis typically not of intelligence but suspicion or unproven denunciation.
According to a very authoritative source, many of the Afghans we detained had no connection to the insurgency whatsoever. From an intelligence point of view, they had little or no value. Frankly, the NDS did not want them. Some of these Afghans may have been foot soldiers or day fighters, but many were just local people: farmers, truck drivers, tailors, peasants, random human beings in the wrong place at the wrong time, young men in their fields and villages who were completely innocent but were nevertheless rounded up. In other words, we detained and handed over for severe torture a lot of innocent people.
The second reason that Canadians should care is that seizing people and rendering them for torture is a very serious violation of international and Canadian law. Complicity in torture is a war crime. It is illegal and prosecutable.
Third, Canada has always been a powerful advocate of international law and human rights. That is a keystone of who we are as Canadians and what we have always stood for as a people and nation. If we disregard our core principles and values, we also lose our moral authority abroad. If we are complicit in the torture of Afghans in Kandahar, how can we credibly promote human rights in Tehran or Beijing?
Fourth, our actions were counter to our own stated policies. In April 2007, Prime Minister Stephen Harper said publicly that Canadian military officials don't send individuals off to be tortured. That was indeed our policy. But behind the military's wall of secrecy, that unfortunately is exactly what we were doing.
Finally, even if all the Afghans we detained had been Taliban, it would still have been wrong to have them tortured. The Canadian military is a proud and professional organization, thoroughly trained in the rules of war and the correct treatment of prisoners.
I would like to quote, if I may, the authoritative military manual on counter-insurgency. It says:
||The abuse of detained persons is immoral, illegal, and unprofessional.... Torture and cruel, inhuman, and degrading treatment is never a morally permissible option, even if lives depend on gaining information. ... The methods used [by the military] must reflect the nation's commitment to human dignity and international humanitarian law.
When we look at our U.S. allies who work with us in Kandahar, their top commander, General David Petraeus, lists ten big ideas of counter-insurgency. One is to live your values. He said that whenever we place expediency above our values, we end up regretting it. In a counter-insurgency, when you lose moral legitimacy, you lose the war.
Canada's counter-insurgency doctrine makes the same point. Persons not taking part in hostilities, including fighters who have been detained, must be treated humanely. Once local citizens have lost confidence in foreign military forces, their sympathies and support will be transferred to the insurgents.
Counter-insurgency is an argument to win the support of the locals. Every action, reaction, or failure to act becomes part of the debate. In Kandahar, Canada needs to convince local people that we are better than the Taliban, that our values are superior and we will look after their interests and protect them.
In my judgment, some of our actions in Kandahar, including complicity in torture, turned some local people against us. Instead of winning hearts and minds, we caused Kandaharis to fear the foreigners. Canada's detainee practices, in my view, alienated us from the population and strengthened the insurgency.
Thank you for your attention.
Mr. Peter A. Tinsley:
Mr. Chairman and members of Parliament's Special Committee on the Canadian Mission in Afghanistan, good afternoon. I'm pleased to respond to your invitation and to assist, as I may be able, the committee in its work pursuant to its motions of October 28, 2009, concerning the treatment of detainees by the Canadian Forces in Afghanistan.
As you are aware, the Military Police Complaints Commission has been engaged in the investigation of complaints concerning the treatment of detainees by the military police of the Canadian Forces since January 2007, when the first such complaint was received from Dr. Amir Attaran.
Through the clerk, I have provided a chronology, and I hope you've received it, of the history of the commission, and more importantly, of these complaints and the decisions related thereto. I hope they may be helpful to you.
The first complaint filed by Dr. Attaran was resolved through a public interest investigation. The file was very recently closed following the reduction of the redactions to the original report and the re-release of the report. A copy of that re-released version may be found at tab E of the additional materials provided to you this afternoon.
The other complaints, also received in early 2007, from Amnesty International Canada and the British Columbia Civil Liberties Association, have not been resolved and remain either before the commission, pending an adjournment of the commission's inquiry by the public interest hearing process, or before the Federal Court of Appeal, pending a decision on the commission's application for leave to appeal, a decision of the Federal Court. Again, I've supplied the committee clerk with a chronology and the commission's decisions in respect of these matters, which I hope may assist you in understanding my very brief remarks.
I believe that it is because of these unresolved complaints that I've been invited here to speak to you and answer your questions. It's also because of the state of these complaints--still, as said, in the process of the commission's inquiry or before the Federal Court--that I may have to be restrained in what I may say in response to your questions; that is, restrained out of respect for and to maintain the integrity of these processes. I am currently presiding over a panel that is conducting hearings into the complaints that remain before the commission, and I have a duty to act fairly in respect of the parties, including a requirement to speak about matters specifically before the commission only through the decisions of the commission. I hope you will understand.
Given the constraints upon me, perhaps I can briefly and appropriately elucidate the present situation of the commission and its inquiry process by recapping and paraphrasing some concluding remarks I made previously, following delivery of the commission's decision to adjourn on October 14 this year.
The matter of the treatment of detainees by the Canadian Forces in Afghanistan by Canada's military police has, particularly given the notorious experience of some other nations in similar situations in Iraq and Afghanistan, and our own recent history in Somalia, attracted much public attention across our country and internationally. There is clearly an expectation of answers in respect of the complaints filed with the commission.
As I've said before, the concerns raised by the complaints are serious in the interest of what have been referred to as the victims or potential victims of the treatment in question. They also potentially call into question the honour and professionalism of Canada's military police in discharging their solemn duty to uphold the rule of law within the Canadian Forces, even in the midst of Canada's most substantial military engagement in half a century.
As an agency specifically created by Parliament in the 1990s to provide greater accountability following the tragic experience in Somalia, wherein the outstanding efforts of so many of the Canadian Forces were nationally and internationally stained by a few, and more particularly, by a lack of transparency regarding the events in question, the Military Police Complaints Commission very much regrets the delays occasioned to its inquiry process in these matters that leave the public record, as it is at this time, replete with more questions than answers. When I speak of the public record, I am not, to be sure, speaking of the commission's evidentiary record in respect of its hearings.
As of this moment, very little evidence is actually before the commission in the context of the formal proceedings of the public interest hearing. Nonetheless, over the past two and a half years of the preceding public interest investigation, and other inquiries preliminary to these hearings, certain information has come to the attention of the commission that moved the commission to convene its hearing process and that underscored the importance of the inquiry. Some of that information is indeed already in the public domain and much published.
The danger and difficulty of all of this information is that it is incomplete and/or untested in a procedurally fair and thorough manner, respecting the rights of those involved. Accordingly, it cannot properly be referred to as a proper and complete evidentiary base of fact. As such, the commission and I cannot draw any conclusions or implications from such information, and I have cautioned the public to adopt similar restraint.
The commission also appreciates the reality that by inquiring into the conduct of military police in respect of these allegations, facts may well come to light that reflect on the actions and decisions of those outside the military police. But as has been said repeatedly, that was never the purpose or focus of this inquiry, only a possible and necessary contextual consequence exacerbated by public attention.
However, for over a year the commission sought to address this complaint through an investigation without hearings--and for that matter, without challenge to its jurisdiction. But it was compelled to resort to the more formal and public route of a hearing, which was the only means available to compel production of information, or so the commission thought.
Agencies for the independent oversight of the police, like all parts of our administrative law structure, are intended to serve the people or community on behalf of the government that created them. That is, in the police oversight context in maintaining public confidence in the police, unquestionably what should be a priority for any democratic government today. The norms of independent oversight of the police across Canada, and indeed such international norms as do exist, dictate that such oversight agencies be created in statute form with the purpose of providing independence, both real and perceived, from the government of the day, of which the police are an agent.
This commission was so created in order to ensure its credibility and effectiveness in fostering public confidence in military policing, which effectively means the caring and enforcement of the laws and standards that Canadians expect within their military, including from the chain of command at home and abroad. Unfortunately, the fallibility of this arrangement has been exposed in the matter of the detainee complaints when quite out of step with the normal situation wherein the principal challenge to police oversight is what has been often referred to as “the blue wall”. The government becomes the obstacle in the oversight piece, as opposed to the police themselves.
In such circumstances, notwithstanding establishment empowerment by Parliament, experience to date in this matter has demonstrated that when the government does not cooperate, there is no equality of arms. By this martial analogy, which is also a legal one, I do not mean to suggest that the relationship between the government of the day and administrative tribunals is properly adversarial in nature; quite the contrary, it is not. Indeed, they form part of the executive branch.
However, administrative tribunals such as or including police oversight agencies are generally intended to serve the public interest by bringing to bear their particular expertise in a quasi-judicial fashion, including a certain independence from the government of the day. But while they are often imbued with court-like powers, they do not have the same degree of independent authority as the judiciary and are intended to provide more informal, expeditious, and expert forums for dealing with specialized matters.
However, the intended value of administrative tribunals is rendered for naught when they are confronted by the need to rely on the courts to give effect to their mandates, with all of the associated costs and delays associated therewith, a result likely not intended by Parliament when establishing such agencies.
It would seem that some of the key lessons of the Somalia experience, from which I have already said this commission arose, wherein accusations--whether well founded or not--were fueled by a lack of transparency, have not been learned. Oversight of military policing, like military policing itself, presents a number of unique challenges. The commission's goal throughout this process has been focused on one overarching objective: to ensure public confidence in the integrity and professionalism of military policing and the rule of law.
Again, I very much regret the additional delay occasioned by the present adjournment in rendering this service to the Canadian people, the complainants, and indeed to the military police personnel involved, who continue to live under a dark cloud of unproven suspicion. However, for the duration of my appointment, I can assure you that the commission will continue to be committed to resolving these matters as soon as possible, and in the public interest.
Thank you, Mr. Chair.