Afghan Detainee Mega Thread

[garb811]

In other words, even if the JAG lawyers win this battle, they'll be hurting the CF's overall PR war.  Unless I'm missing something...

While I generally agree with your writing, on this issue you're missing quite a bit, some of which I articulated in the thread CAN Investigating Treatment of AFG Prisoners by CF.  The crux of the matter is that the MPCC was created with a very specific and extremely limited mandate; to investigate complaints related to the conduct of Military Police personnel conducting Policing Duties and MP complaints of interference and obstruction from the Chain of Command, period.  The Complaints About the Conduct of Military Police Regulations further reinforce this point by specifically excluding certain categories of activity:

(2) For greater certainty, a duty or function performed by a member of the military police that relates to administration, training, or military operations that result from established military custom or practice, is not a policing duty or function.

In this specific instance, it is my belief that the custodial duties being performed by MP were Detention Operations as defined in established Canadian doctrine, NOT Policing Operations. 

While to you this may seem to be a senseless PR battle, it is not.  While I won’t deign to comment on the broader issues being put forth by JAG, for MPs this will have a very serious bearing on how we will conduct our duties domestically and on Ops.  What’s next, MPs being investigated for an excessive Use of Force complaint submitted by Amnesty International when they engaged the enemy while following ROE on Ops because in the MPCC's opinion, application of force is a policing duty?  Now suddenly the MPCC is investigating not only the MP but also the ROE issued for the Mission?  What about if we transfer a civilian we arrested to the RCMP (as we are unable to hold civilians in cells in Canada) and that person subsequently dies in cells?  Is the MPCC going to launch an investigation because Human Rights Watch complains we should have known the person stood the possiblity of dying in RCMP custody given the number of persons who have done so in the last 10 years?  Suddenly the MPCC is not only investigating the MP who did the transfer but also the RCMP?  What about the fact that MP Jr NCOs are likely the ONLY ones who will be subjects in this inquiry as they are probably the only ones who actually physically conducted the transfers?  Might as well give the press another Somalia analogy to push...scapegoats anyone?

Although it may look bad in the press at the moment, silent acquiescence to this is not in the best interest of the CF or the personnel involved.  Kudos to the JAG for taking a stand and moving against this disgraceful attempt by the MPCC to broaden its mandate and public profile on such spurious grounds.

 

[Babbling Brooks]

MP 00161, I agree with you that the MPCC are overstepping the intent of their mandate, which I tried to articulate in my post.  I'm just not convinced they're overstepping the letter of their mandate.  In other words, I don't think this challenge is going to work.

You may have a point as far as detention as part of a military operation versus custody as part of a policing function, but I don't know that I'd want to bet the PR farm on that argument in front of a civilian judge.

As far as the chilling effect on MP conduct going forward, I can see where you're coming from.  The ROE of the mission is exactly what's under the microscope here, which is why I think it's a backdoor way to attack it - drag the MP's through the mud in order to criticize their orders.  I'm still not sure that an attack from within DND on a public agency created to be a watchdog on a subsection of DND is the best way to push back, though.

I'll link back to this discussion from the blog so that folks can see your perspective on the whole thing.  Thanks for laying the argument out.

 

[garb811]

Thanks for linking back to this thread, it saved me having to type in two places. 

I doubt it will be possible to “de-link” the prisoner transfer agreement from the actual actions of the individual MPs, unless there is an “opt out in case of suspected torture” clause which could have been invoked.  If the "de-link" can't happen, I believe the only possible course of action the MPCC has in this specific complaint is to investigate and rule on the legality of the prisoner transfer agreement in order to determine the legality of the MP actions.  This is clearly not within the mandate of the MPCC in any way, shape or form as the negotiation, signing and continuance of the agreement is not within the purview of MP personnel.

Fortunately one of the roles of the courts is to interpret laws and regulations when there is a dispute as to what the intent of the law or regulation actually is.  In the past, the courts have erred on the side of caution in relation to granting authority beyond that intended by the drafters of the legislation, (see R vs Nolan for how the SCC carefully limited the mandate of MP to avoid creating an “uber police force” with cross-Canada jurisdiction and greater powers of arrest than any civilian agency) and I have full confidence that the courts will again rule in a manner which clearly disallows the MPCC from going beyond the intent of why it was created.

The Federal Government has to take action in this instance, if they do not precedent will be set and suddenly the MPCC will be in the position to investigate all manner of Federal treaties, agreements and legislation via the pretence of investigating complaints of MP conduct.  Although it is JAG who is the public face of this, you can bet that many OGD legal advisors are in on the action in the background…

 

[GAP]

O’Connor can’t be that blind
By SCOTT TAYLOR On Target
Article Link

OVER THE PAST few weeks, Defence Minister Gordon O’Connor has been facing an increasing barrage of questions concerning the Canadian military’s handling of Afghan detainees.

Initially, O’Connor had deflected the responsibility for the continued monitoring of apprehended Taliban suspects to the International Committee of the Red Cross.

We were told that prisoners captured by Canadian soldiers were transferred to Afghan security forces at the earliest possible opportunity and from that point forward, the Red Cross would ensure the physical well-being and oversee the legal proceedings of the accused Afghans and inform Canada of any wrongdoing.

This all sounded well and good until the Red Cross publicly contradicted O’Connor by saying that its agency has traditionally not informed third parties, such as the Canadian government, once detainees were in the possession of another government.

When it became obvious that Canadian officials were not quite sure what happened to Afghan prisoners after our forces relinquished control, O’Connor flew to Kandahar to sort matters out for himself.

The purpose of the hastily organized unannounced visit to Afghanistan was so that O’Connor could meet face-to-face with the head of the Afghanistan Independent Human Rights Commission, Abdul Qadar Noorzai. It is now Noorzai’s organization the Canadian government will trust to ensure that any abuses inflicted upon our ex-prisoners will be dealt with by the Afghan authorities.

However, by their own admission, the commission has limited resources, little clout with the local police and only eight staff members to monitor Afghanistan’s southern provinces. For example, it was noted the commission have no access to Uruzgan, north of Kandahar province, because it is too dangerous to visit.
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[Quag]

At least Mr. O'Connor was proactive in remedying the problem.  I wasn't sure just how the outcome of this mix up would be, however I think that the action Mr. O'Connor did makes it harder for the media to bash him and the CF.  Key word: Harder...

 

[Colin Parkinson]

Funny thing as soon as the media announced that the AI was involved in taking Canada to court about the prisoners, all of the AI fundraisers disappeared off of the street here, now that it’s quieted down they are back. Just had a discussion with one, asked them what AI solution to the problem was…

He said we should treat them as POW and hold them. I said since most insurgencies last 10-15 years, Canada is supposed to hold prisoners for that amount of time until a peace treaty is signed????

Then he babbled about the US and Gitmo bay saying they had put 800 people there, I asked him how many they had released, 400 he admitted, he then went on about them not getting a fair trial, I mentioned that POW’s aren’t supposed to be tried unless accused of a war crime….he started babbling and I left.

 

[armyvern]

Yes indeed. Yes it's quite interesting that:

This all sounded well and good until the Red Cross publicly contradicted O’Connor by saying that its agency has traditionally not informed third parties, such as the Canadian government, once detainees were in the possession of another government.

Now that the Red Cross has admitted that it's agency has traditionally NOT informed third parties or the Canadian Government as to detainee status of prisoners; that the media can spin-cycle this into an O'Connor/CF shortfall and problem.

Fact of the matter is: Prisoners are handed over to local authorities. The Red Cross then becomes involved. As per tradition...the Red Cross is not under any obligation to inform a third party (Canada in this instance) who no longer have any jurisdiction/authority over that prisoner.

The Red Cross would be obligated to deal with the Nation holding the prisoner (Afghanistan) and the Nation from where the prisoner originates. Period. Anyone else is a third party...and is no longer involved in the process. Unless the prisoner is a CANADIAN...our government is not involved after that transfer has occured. Nor is any other nation who has handed over prisoners. The CF has handed the prisoners over to HN authorities, and has acted IAW the Geneva Conventions. The Red Cross is involved from that time and their duty/obligation to inform ends at the HN and the birth/nationality nation of that prisoner.

What is the problem here?? Why is this being made out to be a Canadian Government problem?

 

[Yrys]

What is the problem here?? Why is this being made out to be a Canadian Government problem?

I think most Canadians don't realise that our laws don't applied there, they only applied in Canadians territory.
And for some of them, since the CF is handling the prisoners, they think they should thread them humanly, by
Canadians standard and not hand them to the Afghan. They react emotionally, and not rationally.

( I spell check : )

 

[scoutfinch]

Yrys:

Please provide the basis for your opinion vis a vis Afghan emotional vs rational treatment of prisoners.  Some might argue that treating them humanely is pandering to emotion whereas a rationale approach would extract the information required from them without consideration of touchy feely human rights.

Be careful of the application of stereotypes when uninformed.  It serves no purpose.

 

[GAP]

O'Connor apologizes for detainee statements
Updated Mon. Mar. 19 2007 1:58 PM ET CTV.ca News Staff
Article Link

Defence Minister Gordon O'Connor has formally apologized in the House of Commons for inaccurate comments he made about the monitoring of detainees handed over to the Afghanistan government.

O'Connor has received heavy criticism for wrongly claiming that the International Committee of the Red Cross (ICRC) observed detainees under the conditions of the prisoner handover agreement and that they would report back to Canadian officials if anything was wrong.

"I fully and without reservation apologize to the House for providing inaccurate information to members," O'Connor said Monday in Parliament. "I regret any confusion that may have resulted from these statements.

"The answers I gave were provided in good faith. I take full responsibility and do so without hesitation."

O'Connor also tabled letters to correct information he and other DND officials provided to the House of Commons.

In a report by The Globe and Mail earlier this month, the ICRC denied O'Connor's initial claims saying they were not responsible for monitoring the Canada-Afghanistan detainee-transfer agreement.

The ICRC said they only report findings to the country that is holding the detainees.

O'Connor made it clear Monday that he understood saying the "International Committee of the Red Cross is under no obligation to share information with Canada on the treatment of detainees transferred by Canada to the Afghan authorities."

The apology corrects numerous statements he made in the past, including one to the House on May 31, 2006:

"The Red Cross or the Red Crescent is responsible to supervise their treatment once the prisoners are in the hands of the Afghan authorities. If there is something wrong with their treatment, the Red Cross or Red Crescent would inform us and we would take action."
More on link

 

[Gnr_Harrison]

I watch a news clip on the internet about O'Connor being attack in the house of commons about the AFG Prisoner.. But like said earlier no one is talking about what would happen to a CF member if they were to fall in to the AFG hands.  The thing is we are giving ROE's to follow and onces the prisoner is truned over to high it is out of the CF members hands!!

 

[Sassy]

Yea, the Glob and spew has a full page spread on allegations that Canadian troops have beaten detainees,not once do they mention the treatment of Western prisoners by Taliban or Iraqi insurgents.

Bravo I agree Colin.

It's a war zone, and isn't Afghanistan now a democratic country?  So it's up to that country to decide what happens to enemy combatants and criminals-isn't it? Of course the odd soldier might snap and smack a detainee, that's hardly torture.  The media is more concerned with the enemy or criminal element than they are with our soldiers' well being.  The country is run on a Tribal System, what does the media expect us to do try and run a Canadian style penal system in a country with beliefs that haven't evolved in the past hundred years.

 

[geo]

hmph...

The press expects us to fight by following the rules of the Marquis of Queensbury


- To be a fair stand-up boxing match in a twenty-four foot ring or as near that size as practicable.
- No wrestling or hugging allowed.
- Rounds to be of three minutes duration and one minute time between rounds.
- If either man fall through weakness or otherwise, he must get up unassisted, ten seconds be allowed to do so, the other man meanwhile to return to his corner; and when the fallen man is on his legs the round is to be resumed and continued until the three minutes have expired. If one man fails to come to the scratch in the ten seconds allowed, it shall be in the power of the referee to give his awart in favour of the other man.
-  man hanging on the ropes in a helpless state, with his toes off the ground, shall be considered down.
No seconds or any other person to be allowed in the ring during the rounds.
- Should the contest be stopped by any unavoidable interference, the referee (is) to name the time and place as soon as possible for finishing the contest, to that the match can be won and lost, unless the backers of the men agree to draw the stakes.
- The gloves to be fair-sized boxing gloves of the best quality and new.
- Should a glove burst, or come off, it must be replaced to the referee's satisfaction.
- A man on one knee is considered down, and if struck is entitled to the stakes.
- No shoes or boots with springs allowed.
- The contest in all other respects to be governed by the revised rules of the London Prize Ring.

 

[Babbling Brooks]

Librarian, there seem to be a number of reasons some Canadians are exercised about the transfer policy.  Firstly, there's the legal aspect: Canada has signed on to treaties that forbid handing anyone over to authorities that are known to torture, and they submit that Afghanistan falls into that category.  Secondly, both the Dutch and the UK have more comprehensive agreements with the Afghan gov't that provide for follow-up with detainees they took into custody, while in an Afghan prison - so the Cdn agreement looks worse in comparison.  Thirdly, there's a concern (shared by folks I know in uniform) that this agreement sets Taliban free to go back to fighting Canadians, since the Afghan prison system is...leaky (bribes, threats, etc).

For me, the question is not whether this agreement is perfect or if it's flawed - it's undoubtedly flawed.  The question is whether any of the suggested fixes will actually work, and if they do, at what cost - not just money, but opportunity cost by taking focus away from other projects.  I've written more about it here: http://toyoufromfailinghands.blogspot.com/2007/03/choices.html

Oh, and Geo, speaking of the Marquis of Queensbury, you'll like this: http://toyoufromfailinghands.blogspot.com/2006/12/fair-fight-is-one-you-didnt-plan.html

 

[geo]

Sooo... the only way to ensure the TB are treated humanely would be to give them immigration papers and bring them over here, put them on welfare, medicare, Canada Pension, Old age security and.... because they faught the soviets in the bad old days...veterans pensions from DVA.

I don't think so!

We are allied to a democraticaly elected government.  Their standards of culture, hygene and pert much everything else are below our standards BUT, we aren't bringing over to Canada the entire population of Afghanistan..... are we?

If we don't trust our Ally then what the heck are we doing there in the 1st place?
Should we listen to these bozos and roll up our carpets and go home?

 

[Babbling Brooks]

MP 00161, from O'Connor's recent statements in the HofC, I believe JAG has been told to back off challenging the mandate of the MPCC.  From Monday's Hansard:

Mr. Michael Ignatieff (Etobicoke—Lakeshore, Lib.): Mr. Speaker, the role of the Red Cross is not the only issue on which the minister is misleading Canadians.

Last week we learned that the Minister of National Defence was challenging the jurisdiction of the Military Police Complaints Commission to investigate alleged abuse of detainees in Afghanistan. The minister's action contradicts the commitment made in the House, “there are three investigations going on. We are not going to interfere with those investigations”.

Why did the minister mislead the House saying he would not interfere when he is interfering?

Hon. Gordon O'Connor (Minister of National Defence, CPC): Mr. Speaker, I am not interfering in any of the ongoing investigations. There are four ongoing investigations and they will continue.

Mr. Michael Ignatieff (Etobicoke—Lakeshore, Lib.): Mr. Speaker, when the minister was questioned in this House about the investigation by the Military Police Complaints Commission, he stated, “—I do not interfere with, nor will ever interfere with, any investigative process”.

Now his department is contesting the commission's jurisdiction.

Why did the minister mislead this House by stating that he would support this investigation when he knew very well that his department was plotting to derail it?

Hon. Gordon O'Connor (Minister of National Defence, CPC): Mr. Speaker, currently four investigations are ongoing and four investigations will carry on to their conclusion, at which point we will learn whether there has been any wrongdoing or improper following of procedures. We will wait for the outcome of the four investigations.

Full post about it here: http://toyoufromfailinghands.blogspot.com/2007/03/ok-now-im-really-confused.html

This looks to me like a complete charlie foxtrot.

 

[geo]

this sounds like grand prix wrestling at it's best / worst.... two wrestlers looking to gain advantage over the other.... something out of a "B" movie.

 

[Gnr_Harrison]

Sooo... the only way to ensure the TB are treated humanely would be to give them immigration papers and bring them over here, put them on welfare, medicare, Canada Pension, Old age security and.... because they faught the soviets in the bad old days...veterans pensions from DVA.

I don't think so!

This is something that our buddy Jack Layton would love to do for them!!  Lets be happy that we have a Prime Minister that will stand behind his troops.

 

[GAP]

Top military officers off base on detainee file
Minister given questionable information on safeguards for prisoners, papers show
JEFF ESAU Special to The Globe and Mail
Article Link

OTTAWA -- Beleaguered Defence Minister Gordon O'Connor wasn't the only person at National Defence who was off base regarding detainee follow-up in Afghanistan. A gaggle of senior military officers and top civilian departmental officials also seem to have had it wrong, and they repeatedly drafted responses for Mr. O'Connor to deliver to Parliament, documents show.

On Monday, the minister apologized to Parliament for "providing inaccurate information" about prisoner safeguards in Afghanistan. As minister, he said, he took "full responsibility" for repeatedly asserting that the International Committee of the Red Cross would tell Canada of any detainee abuse or torture once captives were handed over to Afghan authorities.

The ICRC never tells third parties about its inspections and monitoring of prisoners, and reports back only to the government holding the captives. That principle has been central to its role for nearly 150 years and is crucial to its ability to deal confidentially with all parties to a conflict.

But according to documents entitled Advice for the Minister and made public under the access to information law, a high-level group of half a dozen senior policy, legal and parliamentary advisers told the minister to imply that the ICRC would inform Canada if detainees it handed to Afghanistan were mistreated.
More on link

 

[GAP]

And to further add to nonsense and confusion there's this.....

Could it be that the bureaucracy is playing fast and loose with the information it dolls out to the MND??

CIDA contradicts Ottawa on funding Afghan monitor
PAUL KORING  From Friday's Globe and Mail
Article Link

Canada has not funded the Afghan Independent Human Rights Commission for years, despite the government's insistence that it plays a vital role in safeguarding captives transferred by Canada to Afghanistan's notorious prisons.

The detainee issue has already ensnared Defence Minister Gordon O'Connor in its coils -- he was forced to apologize in the House on Monday for misleading MPs on the issue -- and now the question of funding is further complicating the Conservatives' story.

Government House Leader Peter Van Loan said Monday, that "the government of Canada has funded the Independent Human Rights Commission to the amount of $1-million."

Mr. Van Loan did not mention that the $1-million was given five years ago by the previous Liberal government.

"No new money has been issued to AIHRC by CIDA" since 2002, Greg Scott, a spokesman for the Canadian International Development Agency, said in an e-mailed reply to The Globe and Mail.

On Monday, Mr. Van Loan and Mr. O'Connor were keen to explain that the AIHRC could monitor detainees, thus meeting Canada's obligations under international law to make sure they weren't abused, tortured or killed in Afghan custody.

Mr. O'Connor had just apologized to Parliament for misleading MPs about the role of the International Committee of the Red Cross in informing Canada about the fate of transferred prisoners.

During a raucous Question Period, as Mr. Van Loan defended both Mr. O'Connor and the arrangements with the AIHRC, he made no mention that the $1-million was old money.
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