More than half a decade after the Harper government was rocked by bombshell allegations that Canada knowingly transferred prisoners to torture in Afghanistan, a watchdog has concluded a probe of the matter by saying Ottawa thwarted efforts to get to the truth.
The Military Police Complaints Commission (MPCC) announced in its final report that eight military police officers – the only people whose conduct it oversees – can’t be found responsible for failing to investigate these transfers because they were largely kept in the dark by Canadian Forces brass.
What’s most damning, however, is what the commission has to say about the stonewalling of its investigation by the Harper government. The politically explosive detainee controversy broke in 2007 and threatened to topple the minority Conservative government in 2009.
The watchdog says Ottawa’s conduct during its long probe threatened its independence, and lamented the “overall attitude of antipathy” shown by a government that insisted it, not the commission, would determine what information should be disclosed.
Stuart Hendin, a legal scholar who participated in the Somalia affair inquiry in the late 1990s, said the report demonstrates how Canada still has not found a watchdog for its military forces.
The beating death in 1993 of a Somali teenager led to the MPCC's creation, with a mandate for "greater public accountability" over military police investigations.
But the MPCC acknowledges that it has strict limitations, Mr. Hendin said; a public inquiry would likely be required to get the truth about what happened to the Afghan detainees, he added, but that does not appear likely.
"We don't want to face the fact, as a society, that we allowed this to happen," Mr. Hendin said.
The $3.4-million inquiry into Afghan prisoners lasted more than five years and four months, stretching back to when Canada was still fighting a bloody war in Kandahar, the heartland of Taliban insurgents.
Wednesday’s report describes how for 21 months the Harper government refused to provide records to the watchdog. “The doors were basically slammed shut on document disclosure,” commissioners say.
The watchdog compares the trials it faced wrestling the truth from Ottawa to the troubles confronted by the Somali inquiry.
“There are important implications for the independence of the commission,” it says, adding it found that the federal government “appears to view the commission as an adversary.”
Defence Minister Peter MacKay’s office said the report – which cleared the eight MPs – is more proof that Canadian soldiers did nothing wrong.
“[It’s] one more investigation demonstrating that no credible evidence was found to support the allegations against our men and women in uniform,” said Josh Zanin, Mr. MacKay’s press secretary. “We are proud of their professionalism in the conduct of the work we ask them to do.”
The watchdog was investigating whether eight members of Canada’s military police failed to adequately investigate the decisions of Canadian commanders to transfer detainees to Afghanistan’s notorious National Directorate of Security between May, 2007 and June, 2008.
It found that senior Canadian defence officials closely guarded important information about the treatment of detainees and kept military police out of the loop.
The commission said that the senior military police officer within the Canadian Expeditionary Force Command, or CEFCOM – the part of the military responsible for overseas deployments – was “marginalized when it came to any discussions and information related to post-transfer issues.”
Carmen Cheung, a lawyer who represented the B.C. Civil Liberties Association, said she was surprised that the MPCC report went into such exhaustive detail about government stonewalling.
"A significant part of this report is devoted to procedural issues," Ms. Cheung said. "They went into a lot of detail about how truly uncooperative the government was."
Despite years of legal procedures, she added, the Canadian government still has not revealed basic facts about the transfer program -- such as the number of detainees handed over to Afghan custody.
"Time and time again, why did we keep going back and handing people over?" she said. "We still don't know the answer."
The government offered more evidence Wednesday that it’s not about to change its approach. It resisted the watchdog group’s calls for its commissioners to be granted less restricted access to government records, saying it would prefer to decide on a “case-by-case basis.”
Peter Tinsley, former chair of the Military Police Complaints Commission, said this reluctance “sets the table for a repeat” of the stonewalling and delays that afflicted the Afghan detainee probe.
The most damning aspect of the MPCC findings were the passages that point to senior military officers keeping their own military police branch ignorant about the legally explosive issue of detainees, said Amir Attaran, an associate law professor at the University of Ottawa.
"They were kept in the dark deliberately by task force commanders," Mr. Attaran said. "The brass basically ordered the police out of the room and then engaged in a plot to transfer those people into torture."
That contrasts with the British military police system, which gets deeply involved with detainee handling to ensure that British troops aren't violating international law, Mr. Attaran said. Ottawa assigned staffers from the department of Foreign Affairs to follow up on detainee conditions in 2007.
"It's not an accident that the Harper government put diplomats in charge of the monitoring, because diplomats can't arrest you," Mr. Attaran said. "They engineered the perfect cover-up."
The Military Police Complaints Commission fought a losing battle with Mr. MacKay and the rest of the Harper government as it tried to investigate allegations the military knew the detainees it turned over to Afghan officials would face abuse and mistreatment.
Mr. MacKay’s Conservatives battled the watchdog in court and succeeded in significantly limiting the scope of its investigation. The Defence Minister also refused to extend the term of the original chair of the commission so he could finish his probe.
The commission said it’s disappointed that senior Canadian government civil servants – who were supposed to protect the integrity of the public service -- were complicit in the cover-up.
“It was particularly disturbing for the commission to learn that decisions not to produce documents were taken by a committee of the highest ranking civil servants from various branches of the government,” the MPCC report said.
Paul Champ, a lawyer for Amnesty International, said there’s never been a proper investigation of the legality of the transfer of detainees.
“There is no justice here for the many prisoners who were transferred from Canadian custody into the hands of torturers. The Commission emphasized that it was only looking at the conduct of eight individuals who were kept out of the loop and marginalized, and therefore no serious review was conducted about the appropriateness or legality of the transfer decisions,” he said.
“The commission did make it clear that there was significant evidence about the risk of torture to the detainees. While the Commission did make recommendations about the military police chain of command, the most important lessons to be learned aren’t found in this report. From that perspective, we are really disappointed. “
NDP foreign affairs critic Paul Dewar said nobody has ever answered who was responsible for deciding to transfer prisoners to Afghan prisons that were widely considered torture factories.
“The government will have you believe this exonerates them – but of course they are cherry-picking here,” Mr. Dewar said.
“The commission said the government has stonewalled it – and has withdrawn the support it should be giving,” he said.
He said Mr. MacKay as Defence Minister should wear the blame for Ottawa’s intransigence.
“The question is what have we learned since Somalia? According to this report, not enough.”
Liberal MP Stéphane Dion charged that the report shows the military watchdog was a “victim of the culture of secrecy of that Prime Minister Harper is imposing everywhere.”
The military police complaints commission said the federal government knew the dangers of transferring detainees to Afghan jailers.
"The commission is of the view there was a great deal of reliable information available, from a variety of reputable sources, to document the risk of ill-treatment of detainees at the hands of the Afghan authorities, and especially the NDS,” it said of the National Directorate of Security.
It also said that it found military police were actually discouraged from inquiring into detainee transfers.
“The commission heard evidence that MP input into post-transfer detainee issues or the status of the transfer process would have been perceived as unwelcome,” the watchdog wrote in its report.
“One CEFCOM provost marshal, Major Martin Laflamme, did attempt to involve himself with detainee discussions when he learned, through military police channels, transfers had been stopped in November 2007. He was told he did not have a ‘need to know’ the details of those detainee discussions.”