Afghan Detainee Torture: The Issue That Grew, and Grew, and Grew

Since 9/11, the question of Canadian complicity in torture has bedeviled the Ottawa security intelligence community. Unlike Canada’s closest ally, the United States, Canadian officials have never been implicated directly in the use of torture, but even hints of complicity and cooperation with those who do torture – including, unfortunately, our American allies under the previous Bush administration – are enough to cause serious criticism. Torture is like the live third rail of Canadian public life: everyone who touches it, or comes close to touching it, is damaged. It might even bring about the fall of a government.

The first case to gain attention was Maher Arar’s extraordinary rendition and torture in Syria: the report of Justice Dennis O’Connor landed like a bombshell; helped bring about the resignation of RCMP Commissioner Zaccardelli, and led to extensive changes in the way the RCMP handles national security cases.

There followed the cases of Abdullah Alamalki, Ahmad Abou-Elmaati, and Muayyed Nurreddin, held and tortured in Syria and Egypt, which were examined in an ‘internal’ inquiry by Justice Frank Iacobucci, with CSIS coming in for special criticism.

The case of Abousfian Abdelrazik, imprisoned and tortured in Sudan, then left in limbo in the Canadian Embassy until a Federal Court order forced his return in Canada, attracted considerable media attention. Possible CSIS complicity in his mistreatment may feature in legal proceedings initiated by Abdelrazik against government officials.

The case of Omar Khadr, the teenager taken prisoner by the Americans in Afghanistan, and held at the notorious Guantanamo camp, now repudiated by the Obama administration, has gone through several court proceedings, finally reaching the Supreme Court of Canada, and remains unresolved. But the revelation that Khadr was subjected to systematic sleep deprivation (a universally recognized torture technique) before being turned over to Canadian interrogators, as well as his status as a child soldier, has led the courts to agree that his Charter and human rights have been abused, with Canadian complicity. CSIS and Foreign Affairs have both been criticized by the courts for their role, and CSIS has been chastised by its independent review body, SIRC.

What all these cases have in common is that each involves a Canadian citizen subjected to torture while in foreign custody. In each case, Canadian officials contributed, or appear to have contributed, to this mistreatment of a Canadian, either through Canadian cooperation with allies against terrorism; through complicity in how these Canadians came to fall into hostile hands; or through a desire by Canadian agencies to acquire intelligence gained by means that would be illegal and repugnant to the Charter of Rights if used in Canada.

Although official disavowals of intelligence cooperation with regimes with poor human rights records have been given, the waters were further muddied when a senior CSIS official testified at a parliamentary committee hearing that there might be cases in which CSIS would use information acquired through torture. Although he was quickly repudiated by the Director of CSIS, and later claimed to have misspoken, doubts were widely expressed that Canadian agencies have cleaned up their act.

None of these cases, however, has the potential for political dynamite currently carried by the issue of the transfer of Afghan detainees by Canadian Forces to Afghan authorities, in light of extensive evidence that these detainees have suffered torture and death while in Afghan custody. At first glance, this may seem surprising. After all, none of the detainees are Canadian citizens, and all are suspected Taliban or Taliban sympathizers in a war against Canadian troops. Yet attempts to investigate what has happened to these detainees have led to a situation where the Parliament of Canada is locked into a constitutional impasse with the minority Conservative government, with a precedent-setting potential for the House of Commons voting to hold the executive in contempt of Parliament, and the possible precipitation of an election.

Even if these extremes are avoided, the threat of a vote of contempt was enough to cause the Prime Minister to prorogue Parliament for two months – a highly controversial, and politically damaging decision – and has already brought relations between government and opposition to new lows. To understand how this issue has escalated into such a serious crisis, it is first necessary to look more closely at what is involved.

The agreed facts are as follows: Canadian Forces deployed in Afghanistan since 2002 follow a policy of holding no prisoners. Instead, combatants or Taliban suspects captured by Canadian soldiers are transferred to other jurisdictions. Prior to late 2005, they were transferred to the Americans. The latter refused to recognize the application of the Geneva Conventions on prisoners to the Afghan conflict. As evidence mounted of human rights abuse at American facilities such as Bagram in Afghanistan and Guantanamo, where some of the Canadian transferees ended up, Canada decided to take another route, and instead opted in late 2005 to hand battlefield prisoners over to Afghan authorities.

They entered into this arrangement despite the well known fact that torture and abuse of prisoners is systematic throughout the Afghan prison system. At least this fact was well known, even notorious, among NATO officials, NGOs, the media, etc. – and, it now appears, among Canadians attached to the Afghan mission. We know this because diplomat Richard Colvin posted to Aghanistan in 2006/7 courageously faced down attempts by his own employer, to testify that he had been warning everyone he could communicate with in the chain of civilian authority that those transferred were almost certainly being tortured. We also know that the government was preparing a media strategy to cover the release of “credible” reports of torture. Yet little was actually done to track the prisoners, and almost nothing done to check first hand on prison conditions.

It was only when reporter Graeme Smith’s exposé of the horrors of Afghan prisons hit the front page of the Globe & Mail in 2006, that the government reacted – first with media spin, then with a revised transfer arrangement with the Afghans that managed to acknowledge the problems inherent in the first agreement, without actually fixing anything substantively. We don’t know, and the Canadian government apparently does not know, what exactly has happened to prisoners handed over for the past four years. But what Canadian officials should have known, and almost certainly did know, was that the prognosis in general was very bad indeed. And herein lies the issue of Canadian complicity.

If Canadians knowingly handed over prisoners to be tortured, they are potentially culpable of violation of the Geneva Convention on the treatment of prisoners. Knowingly handing over prisoners to be tortured by someone else is the equivalent of torturing them yourself. If they were simply covering their eyes and engaging in a variation of a ‘don’t see, don’t tell’ policy, they might be viewed, at best, as naive, and perhaps hypocritical. But if the process was knowing, it could be construed as a war crime. That is as serious as any charge ever brought against Canadian military and diplomatic missions abroad. No wonder all hell broke loose in Ottawa when the full dimensions of the potential scandal became apparent. And no wonder that ever since, the government has been in full damage control mode on this issue.

A defence of naive innocence does not, of course, reflect well upon the competence of the government in a mission that the Conservatives have always tried to claim as a successful instance of a new, more robust foreign and defence stance in the world. Consequently, they have not invoked this excuse. But the other side of the coin is even less palatable. The official strategy has been simply to deny and obfuscate. When Colvin came out of the bureaucratic closet to point his finger, the reaction was to try to discredit him personally. Three retired generals were trotted out to refute his testimony, with Gen. Rick Hillier going so far as to term his charges “ludicrous”. Ministers and Tory backbenchers routinely impugn the patriotism of anyone questioning the detainee transfer policy, suggesting that they are undermining our troops and aiding the Taliban.

The government has gone to great lengths to stifle any investigation of the charges, which necessarily raises suspicions among critics. They have consistently rejected any and all calls for an independent inquiry. The Military Police Complaints Commission decided to look into the issue and immediately found themselves blocked by the government at all turns. Not only were they denied access to documents, but the government sought to shut their inquiry down as beyond the Commission’s jurisdiction. When Richard Colvin was called as a witness by the MPCC, the government unsuccessfully tried to prevent his attendance. When the Chair of the Commission who had agreed to initiate the inquiry came to the end of his appointed term, the government refused to reappoint him, and has yet to replace him, leaving the Commission leaderless.

This stonewalling led a parliamentary committee to undertake an investigation. In fact, as a result of the government’s position, the parliamentary committee route is only avenue left for independent inquiry, but this too has been targeted for shutdown. The Tory members of the committee have exploited parliamentary procedure to tie the committee in knots (late last year, just prior to prorogation, they refused to show up in a body, thus denying the committee a quorum). But this issue which has brought everything to a head, and may yet precipitate a constitutional crisis, is the refusal to provide the committee with unredacted documents. This issue has in a sense overshadowed the torture issue, but it is a necessary step to get to the truth: if the government is successful in denying documents, we may never know if a war crime has been committed.

The committee insists that it must have the same unrestricted access to the documents that witnesses who have appeared before the committee, and will appear in future, have. Specifically, the documents about which Colvin testified, and which the generals and bureaucrats defending the government disputed, have been made available to the committee members only in expurgated form. How, they reasonably ask, can they make sense of conflicting testimony without access to the documents that are being contested?

The Minister of Justice asserts that he cannot release unredacted documents because some parts cannot be disclosed under exemptions in the Access to Information Act for material that might harm national security, the defence of Canada, or international relations. The committee, and the majority of Parliament as a whole, rejects this argument, and insists that the committee can receive restricted documents in camera, and under a publication ban (there is a 1990 precedent for just such an arrangement). They also have a more fundamental, constitutional, argument: that Parliament has an enforceable power to order “people, papers, and records” from the executive, that this is a fundamental element of parliamentary sovereignty.

The prime Minister’s initial reaction to this demand, made late last year, was to shut down Parliament for two months, but now that Parliament is back in session, the issue is back on the table. The fallback position was to appoint retired judge Frank Iacobucci to review the documents and advise the government on their release. The opposition parties have, rightly, rejected this as a delaying device and a diversion from the real issue of Parliamentary supremacy. Instead, they have sought a Speaker’s ruling that Members’ privileges have been breached by the government’s refusal to comply with the resolution of the majority of the House. If the Speaker upholds the House, we could see a vote to hold the executive in contempt of Parliament – something unprecedented in parliamentary history. The government, on the other hand, could interpret this as a vote of non-confidence, and precipitate an election.

The constitutional issue has taken on a life of its own, but it is well to remember the original cause for this grand confrontation. We should ask ourselves why has the government gone to such extremes – even precipitating a constitutional crisis – to avoid investigation of the torture issue, if they do not have something they are desperately determined to cover up? If suspicions are really unfounded, why not call a public inquiry like the Arar or Air India inquiries?

One hint that something darker may be involved has emerged recently: evidence that the Special Forces unit, JTF2, and CSIS, were involved in interrogation of prisoners before their transfer to the Afghans. This raises the uncomfortable possibility that transfers might have been a kind of instant rendition to place them in the hands of those who were expected to use methods that Canadians could not employ, but might profit from.

This is only speculation, of course, and might prove unfounded. But we keep returning to a troubling point: if smoke does not indicate fire, why is the government so desperately obstinate about blocking any independent inquiry?