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Thwarted for more than a year by the Conservative government's refusal to co-operate, the independent Military Police Complaints Commission announced Wednesday it would hold public hearings to try to force disclosure of documents that will show whether the military knew detainees transferred to Afghan custody were likely to be tortured.
The decision sets the stage for a confrontation between the Harper government and the independent civilian oversight body.
“Ordering a public interest hearing is necessary to ensure a full investigation of the grave allegations raised in this complaint,” said Peter Tinsley, chairman of the MPCC.
The government has refused to release uncensored versions of hundreds of pages of documents – many of which are entirely blacked out – although it provided no reasons.
These prisoners, captured by Canadian soldiers in Kandahar last year, were later handed over to Afghan police. (John D. McHugh/AFP/Getty Images)
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“The commission will use subpoena power to compel the various government departments to provide uncensored documents,” the MPCC said in announcing the public hearings.
“The government's refusal to provide the commission with full access to relevant documents and information” left no choice but to order the hearing, Mr. Tinsley said.
In the Commons, opposition MPs hammered the government for stonewalling on whether it knew transferred detainees faced torture.
“The Prime Minister's government stands accused of withholding key information, witnesses and the kinds of documents that are essential to get to the bottom of prisoner abuse that has been alleged in Afghanistan,” NDP Leader Jack Layton said.
“There is no refusal to co-operate,” Prime Minister Stephen Harper responded, adding the government would “provide all information that it is able to provide under the law.”
In an unrelated development, the Federal Court ruled Wednesday that prisoners held by Canadian Forces abroad aren't protected by the Canadian Constitution.
That ruling will likely be appealed and is expected to eventually reach the Supreme Court, where the extraterritorial reach of Canada's Charter of Rights will ultimately be decided.
The commission is investigating a complaint from Amnesty International Canada and the British Columbia Civil Liberties Association that alleges the government and the Canadian Forces knew, or should have known, that torture and abuse were rife in Afghan prisons and that international law bars transferring prisoners from being handed over under such circumstances.
“The government's continuing attempt to stonewall and delay are consistent with its communication strategy on detainees and torture,” Jason Gratl, president of the BCCLA, said Wednesday.
“But it's only a matter of time that the issue of torture catches up with them.”
After insisting for nearly a year that safeguards to prevent torture existed, and repeatedly changing those safeguards as they proved inadequate, the military stopped transferring detainees to Afghan security forces in November after credible evidence of torture was reported by Canadian diplomats.
A transferred prisoner was able to tell them were the electrical cables used to beat him were hidden under a chair.
The government kept the cessation of transfers secret for more than two months before government lawyers told a Federal Court proceeding that no prisoners were being handed over to Afghan custody pending an investigation and more improvements in monitoring.
Detainee transfers resumed last month. Once those detainees being held by Canadian Forces at Kandahar air base were handed over, the government made the resumption public.
Efforts by rights groups to get an injunction failed.
“If Canada can't engage in combat without breaking its international obligations about torture, then it shouldn't engage in combat at all,” Mr. Gratl said.
The Geneva Conventions outlaw transferring prisoners to those who would torture or abuse them or can't properly look after them.
Ordering a public-interest hearing gives Mr. Tinsley the authority to issue subpoenas for witnesses and documents. Those documents include reports from the Foreign Affairs and corrections departments detailing conditions inside Afghan prisons and the harrowing accounts of transferred detainees who have alleged beating, abuse and torture by Afghan prison guards and police officers.
A handful of documents have been leaked. For instance, the government censured every reference to torture in its routine annual human-rights and governance summaries. It also blacked out the reference to Asadullah Khalid, governor of Kandahar, when a detainee alleged he had been tortured by him.
However, the details of most of the heavily censored documents remain completely unknown.
The Harper government has insisted national security concerns justify its refusal to make them public or deliver them to the court.
But the MPCC was expressly set up to be able to deal with top secret and other classifieds documents and matters pertaining to national security.
It is a government agency, its chairman and key staff all have the highest security clearances and it is bound not to reveal details that could imperil national security.
“This is not a security or classification issue,” Stanley Blythe, the MPCC chief of staff, said yesterday. “We are a part of the government; the public isn't going to see these documents.”
The documents will help the MPCC understand “what did they know or should have known” when decisions were made to transfer detainees, Mr. Blythe said.
“We have tried at every level we can,” including writing to ministers to seek the release of the uncensored documents, he said.
Mr. Tinsley said he didn't “take this decision lightly; it is estimated the hearing process could cost in the range of $2-million and will easily add months to the investigation. However, we are simply left with no other choice.”
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