What they should have known

By Aaron Wherry - Tuesday, April 5, 2011 at 9:47 AM - 15 Comments

The Harper government is once more seeking to limit the purview of the Military Police Complaints Commission.

The federal government already argued successfully in 2009 that the findings should be limited to what military cops knew or could be reasonably expected to know, but now Ottawa is challenging the definition of what the military police should have known. The federal government wants to narrow the definition so that it includes only information the military police would have physically possessed — such as being copied on an email — instead of what they may have been able to find out by asking questions.

A mid-April surprise?

By Aaron Wherry - Friday, March 25, 2011 at 10:00 AM - 9 Comments

Liberal Dominic LeBlanc says the detainee document review committee will soon be ready to release documents.

“It is our information the process is on track to release a substantial amount of information within the next couple of weeks,” Liberal defence critic MP Dominic LeBlanc, who was also part of the negotiation team with the other parties, told the Toronto Star Thursday.

The NDP’s Jack Harris says an election will make this impossible, but it’s actually not clear to me at the moment, from my rereading of the memorandum of understanding, what the precise mechanism is for the public release of information. Here, for instance, is Clause 6. Continue…

Mr. Speaker

By Aaron Wherry - Thursday, March 24, 2011 at 1:51 PM - 64 Comments

When the government falls tomorrow afternoon and Parliament is subsequently dissolved, Peter Milliken‘s time as Speaker of the House of Commons will come to an end, Mr. Milliken having already decided that he will not seek reelection as the MP for Kingston and the Islands. First elected to the post in January 2001, he will retire as the longest-serving Speaker in the history of the House.

His tenure will be remembered as historic on a number of fronts, but his ruling last year on Afghan detainee documents and his rulings this year on statements made by International Cooperation Minister Bev Oda and the government’s refusal to turn over documents requested by the House will likely be of significant and lasting consequence. Amid much gnashing of teeth over the state of our parliamentary democracy, Mr. Milliken reasserted the power and preeminence of the House of Commons. As a legacy, a Speaker could not ask for much greater.

An ultimatum

By Aaron Wherry - Thursday, March 3, 2011 at 10:44 AM - 12 Comments

Gilles Duceppe says if the Afghan detainee document review committee doesn’t produce disclosures in the next six weeks, the Bloc will pull out.

“This delay makes no sense, because we were told that in January it would be done,” Duceppe told the French newspaper La Presse. ”Now there is a deadline.”

Detained and transferred

By Aaron Wherry - Monday, February 7, 2011 at 3:49 PM - 3 Comments

On Friday, the Defence Department released statistics on the number of individuals detained and transferred during operations in Afghanistan in 2009. The year set a new high mark for the number of those detained, but only 40% of those individuals were transferred.

In 2009, the CF detained 225 individuals. One (1) individual detained in 2008 remained in custody into 2009, bringing the total of detained individuals in 2009 to 226. Of the 226, 126 were released by the CF, while 92 were transferred. One (1) individual died of wounds as a result of injuries suffered on the battlefield. The individual passed away at the Role 3 hospital while receiving medical care. Seven (7) individuals were detained near the close of 2009 but remained in CF custody until 2010.

'This is our final opportunity to have this issue taken seriously'

By Aaron Wherry - Thursday, February 3, 2011 at 10:35 AM - 11 Comments

Murray Brewster covers the last day of hearings at the Military Police Complaints Commission.

The issue of the treatment of Afghan prisoners has fallen off the political map, something Neve lamented.”We have tried so many different ways to have that issue taken seriously,” he said Wednesday just before the hearings concluded.

Gilles Duceppe said in December that the committee of MPs charged with reviewing documents related to the treatment of detainees would have something to release in January. After QP on Tuesday, he was reminded of that. Continue…

'The process is a serious one'

By Aaron Wherry - Friday, December 10, 2010 at 11:29 AM - 46 Comments

From yesterday’s scrums after QP, here is Liberal defence critic Dominic LeBlanc’s response to the NDP’s impatience.

My understanding is that the process is going quite well. Mr. Dion and others don’t identify any disruptions in the process. The NDP were not serious from the beginning in finding a way to make a process work. They sabotaged the discussions and walked out prematurely as they had always planned to do. So this is as predictable as their publicity stunt around the discussions with the government. I think it is a little disingenuous to pretend that former Supreme Court justices and senior judges would somehow be involved in a sham process and as a front for some government obstruction. My understand is that the process is a serious one and is proceeding well and I’m quite confident that we will see some documents released very soon.

Separately, Gilles Duceppe said there would be documents made public in January.

The enduring impatience of New Democrats

By Aaron Wherry - Thursday, December 9, 2010 at 11:42 AM - 31 Comments

Jack Layton calls out Michael Ignatieff and Gilles Duceppe.

One year after Parliament voted to demand documents relating to the torture of Afghan detainees, Jack Layton is calling on his opposition counterparts to cancel their failed disclosure deal with the Harper government and insist on a public inquiry instead.

“Stephen Harper has done everything in his power to hide what his government knew about the treatment of Afghan detainees. Now he’s doing it again, but with help from the Liberals and the Bloc,” said Layton at a press conference today. “Mr. Ignatieff, Mr. Duceppe, end this charade today and join us in holding Mr. Harper accountable.”

How many? (II)

By Aaron Wherry - Thursday, December 2, 2010 at 7:48 PM - 13 Comments

For the fourth consecutive day, Lawrence Cannon was pressed during QP to say how many children have been detained and transferred by the Canadian Forces in Afghanistan. For the fourth consecutive day, this did not result in an answer.

Afterward I emailed Mr. Cannon’s office with the following.

According to the Canadian Forces records released in September, 439 individuals were detained by the CF in Afghanistan between 2002 and 2008. Two-hundred and eighty-three of those individuals were transferred. Two questions: How many of those detained were juveniles? How many of those transferred were juveniles?

That was eventually forwarded to the Department of National Defence, which responds as follows. I’ve bolded the portion that seems most particularly applicable to the questions at hand. Continue…

How many?

By Aaron Wherry - Wednesday, December 1, 2010 at 12:21 PM - 5 Comments

Aside from a fire alarm, Question Period was highlighted, if that’s the right word, yesterday by various attempts to coax the government side into providing specific information on the transfer of children detained in Afghanistan. Jack Layton, Jean Dorion and Bob Rae all failed to find the right combination of words that unlocks such secrets—notably on the question of how many children have been transferred.

The number of detainees transferred by Canadian Forces was, until this past September, a matter of operational security. Since then the Canadian Forces has committed to releasing such data.

Although some types of Afghanistan detainee-related information remain OPSEC in nature, basic statistical information such as number of persons detained, released, transferred and deceased, does not pose OPSEC concerns. Additionally, the CF has determined that releasing cumulative detainee-related statistics would not pose a threat to Canadians or our allies in the field. In light of these considerations, and in the interest of accuracy and transparency, historical detainee data will now be released on an annual basis – once per calendar year after being protected by the CF for a period of 12 months.

The Commons: Lawrence Cannon's lips are sealed

By Aaron Wherry - Monday, November 29, 2010 at 6:39 PM - 16 Comments

The Scene. It is entirely possible that when all has been, said, done, investigated and disclosed that Canadian officials will be found to have done a largely admirable job of handling, seizing, transferring and monitoring those individuals detained during this country’s mission in Afghanistan—and that that conclusion will do very little to redeem this government’s various cabinet ministers for the various things they have said about the matter these last four and a half years. To understand why is to get at perhaps the central paradox of so much about this place and these times: the serious, complex nature of modern problems set against the increasingly simplistic, largely evasive way we seem compelled to talk about those problems.

The latest cause for incoherence is a report from the CBC, based on a secret government briefing note, that Canada has been transferring children to Afghan authorities. For sure, this sort of news raises all sorts of complicated questions about law, human rights, war and foreign affairs. For sure, none of these complicated questions will ever properly be addressed here.

Here though stood Thomas Mulcair, the first to state for the benefit of the House a series of varyingly inflammatory questions—”Why is Canada transferring children to the Afghan torturers, NDS? How many children have been arrested? How many children have been transferred? How many children have been tortured?”—to which he couldn’t possibly have expected to receive answers. Continue…

'This may draw attention to the role of juveniles in the Afghan conflict'

By Aaron Wherry - Monday, November 29, 2010 at 9:09 AM - 41 Comments

The CBC has obtained a briefing note for Defence Minister Peter MacKay which details the detention and transfer of juveniles by the Canadian Forces in Afghanistan.

That juveniles were being transferred was raised in the House three years ago—see here, here, here, here, here and here. That juveniles were, or are, being held for a “significant” amount of time by Canadian Forces seems to be a revelation to Paul Champ, a lawyer who has been closely involved in this ongoing matter of Afghan detainees.

A test of patience

By Aaron Wherry - Wednesday, October 20, 2010 at 4:03 PM - 0 Comments

The Canadian Press gets the latest news, such as it is, from the Afghan detainee document review.

The committee — made up of Conservative, Liberal and Bloc Quebecois MPs — has been poring over documents since early July. But a three-member panel of independent arbiters has yet to authorize public disclosure of any information…

Bryon Wilfert, one of two Liberal MPs on the committee, says there’s no indication the panel will become an obstacle to the eventual release of documents. ”Just say that it’s a work in progress,” he said. “Although it’s not as fast as maybe we would like, it’s working well. There’s good faith all around, both with all the members of the ad hoc committee and with the arbiters.”

The paper trail

By Aaron Wherry - Wednesday, October 6, 2010 at 4:04 PM - 0 Comments

While the Military Police Complaints Commission continues to go over what was known, what was believed and what could be proven about the treatment of detainees in Afghanistan, the NDP has released a memo drafted by Richard Colvin in June 2007—apparently obtained through an access to information request—that details three allegations of abuse.

The visit reported in the memo came six weeks after the Globe’s pivotal reporting of detainee abuse. Transfers were halted in November 2007 after an embassy official heard an allegation of mistreatment from a detainee and was directed to the electrical cable allegedly used.

'In the interest of accuracy and transparency'

By Aaron Wherry - Thursday, September 23, 2010 at 9:05 AM - 0 Comments

Previously considered a matter of operational security, the Canadian Forces has now disclosed the number of detainees taken in Afghanistan between 2001 and 2008—as well as how many were transferred and how many were released—and promises to release new numbers, with a 12-month delay, on an annual basis from here on.

As the Canadian Press notes, the percentage of detainees who were released without being transferred steadily increased over the last three years on record.

What we now know

By Aaron Wherry - Tuesday, September 14, 2010 at 3:17 PM - 0 Comments

Detainee transfers were halted in May 2009 after an Afghan intelligence officer bragged of torture. Two allegations of mistreatment from later that year have now come to light.

Military Police Complaints Commission hearings have resumed and, while testifying, a Canadian general defended Afghanistan’s NDS (“these are not torture chambers per se”). After reviewing new documents, the CBC figures Canada has transferred in excess of 400 detainees to Afghan authorities. The Hill Times reports that the government was preparing in 2007 to deal with difficult questions.

Meanwhile, the Brits have completed their own review of detainee policy and practice.

All things to all people

By Aaron Wherry - Wednesday, July 14, 2010 at 3:55 PM - 0 Comments

Justice Frank Iacobucci, as noted, has been tabbed as one of the eminent jurists who will arbitrate for the committee reviewing Afghan detainee documents. The NDP says the presence of Justice Iacobucci taints the process because he was previously under contract to the government to review documents on their behalf. The Liberals say transparency is ensured because they were assured Justice Iacobucci’s retainer has been terminated.

Justice Iacobucci was also previously tabbed by this government to conduct an inquiry into the torture of three Canadians overseas. In that case, Mr. Iacobucci’s findings were endorsed by the NDP public safety and national security critic Don Davies—”One of the most eminent jurists in our country,” he said—but are presently being contested by this government.

Your eminent jurists

By Aaron Wherry - Wednesday, July 14, 2010 at 1:21 PM - 0 Comments

The office of Justice Minister Rob Nicholson has announced the three eminent jurists charged with arbitrating for the committee of MPs reviewing Afghan detainee documents. They, with their various letters of significance are: the Honourable Claire L’Heureux-Dubé, C.C., G.O.Q., the Honourable Frank Iacobucci, C.C., Q.C., and the Honourable Donald I. Brenner, Q.C..

Official biographical details after the jump. The NDP has already scheduled a news conference for later this afternoon in response, perhaps for the purposes of restating their objections to the involvement of Justice Iacobucci.  Continue…

'It is time to clear up this matter once and for all'

By Aaron Wherry - Wednesday, July 7, 2010 at 1:20 PM - 0 Comments

The Prime Minister (of Britain) announces an inquiry into allegations of (British) complicity in the mistreatment of detainees.

Our reputation as a country that believes in human rights, justice, fairness and the rule of law—indeed, much of what the services exist to protect—risks being tarnished. Public confidence is being eroded, with people doubting the ability of our services to protect us and questioning the rules under which they operate. And terrorists and extremists are able to exploit those allegations for their own propaganda.

I myself, the Deputy Prime Minister and the coalition Government all believe that it is time to clear up this matter once and for all, so today I want to set out how we will deal with the problems of the past, how we will sort out the future and, crucially, how we can make sure that the security services are able to get on and do their job to keep us safe.

Take their word for it

By Aaron Wherry - Monday, July 5, 2010 at 1:40 PM - 0 Comments

Two new allegations of detainee abuse come to light in British court proceedings.

Canadian officials say the abuse allegations, from last summer, were promptly investigated and found groundless: An internal probe by Afghanistan’s National Directorate of Security exonerated the NDS interrogator involved. They contend the handling of the allegations demonstrates that Canadian safeguards in detecting claims of abuse and demanding investigations are working…

In a series of exchanges with The Globe and Mail, both the Canadian Forces and the Foreign Affairs Department declined to provide any substantiation or documents, from either the initial follow-up visit that produced the allegations of abuse or the subsequent NDS investigation that dismissed them, to buttress the conclusion that the Afghan detainees had lied about being beaten and that the interrogators had been properly investigated and cleared.

'It was my No. 1 priority, but my bosses had other priorities, too'

By Aaron Wherry - Friday, June 18, 2010 at 4:28 PM - 4 Comments

As the Military Police Complaints Commission hearings continue, perhaps as many questions are raised as are answered.

Former diplomat Nicholas Gosselin visited Afghan detention facilities at least 38 times, but conducted only a handful of interviews with prisoners in the months after a bombshell allegation that a Canadian-captured detainee had been beaten with electrical cables. The revelation stunned both the inquiry chair and the human-rights group that prompted the continuing torture inquiry.

Gosselin told a Military Police Complaints Commission inquiry Tuesday that there often wasn’t time to get in to a question-and-answer session with inmates of either the Afghan intelligence jail, or the notorious Sarpoza prison.

“It wasn’t that there wasn’t a will,” said Gosselin, whose job at the Kandahar provincial reconstruction base included monitoring prisoners. “It was my No. 1 priority, but my bosses had other priorities, too.”

Towards an understanding of the understanding (II)

By Aaron Wherry - Friday, June 18, 2010 at 12:45 PM - 20 Comments

At my request, a few thoughts from Lorne Sossin on the Conservative-Liberal-Bloc memorandum of understanding.

The reference to the solicitor-client privilege and cabinet confidentiality (para. 7) potentially could be used to shield much of the material which is at the heart of the debate, but I think these are issues which cannot be ignored, and the delegation of decision-making over them outside a partisan framework to a panel of independent arbiters, guided by the overall goal of maximizing disclosure and transparency, is a fair and reasonable solution to a thorny dilemma. It also, however, puts additional pressure on the selection of the arbiters and the need for these individuals to enjoy broad credibility and trust across party lines.

'I will consider the matter closed'

By Aaron Wherry - Friday, June 18, 2010 at 12:14 PM - 27 Comments

With a slight allowance for the potential of future trouble, the Speaker officially declined yesterday to entertain a point of privilege from Jack Harris on Afghan detainee documents—more or less clearing the Conservatives, Liberals and Bloc to proceed with their memorandum of understanding.

In considering this matter, the Chair has taken great care to assess whether the existence of this consensus satisfies the broad conditions that were imposed on the parties in the ruling of April 27.

I must stress that it is not for the Chair to examine the details of the agreement or to compare it to the agreement in principle tabled on May 14. I am responding to the interventions that have been made on behalf of an overwhelming majority of members who have stated that they are satisfied with the consensus agreement that has been tabled.

The Chair can only conclude, therefore, that the requirements of the ruling of April 27, 2010, have indeed been met and, accordingly, I will not call on the honourable member for St. John’s East to move a motion at this time. Instead, the Chair will allow time for the processes and mechanisms described in the agreement to be implemented. Should circumstances change, members will no doubt ensure that the Chair will again be seized of the matter, but for now I will consider the matter closed.

Towards an understanding of the understanding

By Aaron Wherry - Thursday, June 17, 2010 at 10:55 AM - 22 Comments

After conferring with both sides (or at least two of the three sides) of the detainee document agreement, it would seem that this much is agreed upon.

If, in the process of producing documents, the government believes that all or part of a document may be covered by solicitor-client privilege or cabinet confidence, that document will be sent directly to the panel of arbiters. The panel of arbiters will then decide what from those documents can be disclosed to the ad hoc committee of MPs. If the panel of arbiters does decide that the document is subject to privilege, they must explain their decision to the ad hoc committee of MPs.