The Harper government has struck a new detainee transfer agreement with Afghanistan that includes stringent safeguards for follow-up monitoring to prevent torture and abuse that were previously absent, it was revealed in federal court today.
The new deal signed this morning in Kabul by Canada's new ambassador to Afghanistan, closes the gaping holes that rights groups claim existed in the original agreement signed by chief of defence staff Lieutenant-General Rick Hillier in Dec 2005.
The announcement stunned a packed federal court hearing in Ottawa where a call for an immediate halt to transfers was about to being when lawyers for the federal government brought the new agreement to court.
Federal Court Judge Michael Kelen told the court the deal was a major development that took the urgency out of deciding whether to block future transfers.
"It probably wouldn't have happened if this court hadn't been happening," he said as he announced a postponement of proceedings.
The deal provides for "full and unrestricted access" by Canadian officials to anyone transferred to Afghan authorities as long as they remain in custody. The Canadians can also interview prisoners in private.
Judge Kelen said that Afghanistan has agreed to hold prisoners transferred by Canada in a limited number of jails to facilitate monitoring and follow-up.
Torture and abuse is rife in Afghan jails, according to international reports, rights groups and even Canada's Foreign Affairs department.
A Globe and Mail investigation last week detailed the abuse of at least 30 detainees who said they were tortured while Afghan custody. They had been captured by Canadians and handed over to local authorities.
Judge Kelen said that aside from the Globe article, human rights groups had not provided any evidence of those transferred by Canada actually having been tortured, but relied on evidence that inhumane treatment is common in Afghanistan.
Amnesty International, one of the groups that had asked the court to block transfers of detainees, said the deal was a step forward but nothing short of the establishment of a Canadian or NATO prison, operated in conjunction with Afghanistan, would suffice.
"You don't prevent torture in a country where it is rampant and systematic as it is in Afghanistan by sending in monitors on an occasional basis. It simply doesn't work," Amnesty's Alex Neve told reporters.
The new deal amounts to an about face for the Harper government, which has insisted throughout the detainee torture controversy that the Canadian deal provided sufficient safeguards.
The new transfer comes amid a raging controversy over the alleged torture of some detainees.
Amnesty International wants to halt all transfers until the welfare of the prisoners can be assured. But federal lawyers filed an affidavit Thursday before formal court proceedings began, assuring the court that the new agreement does just that.
It's the second time the government has announced a deal. Last week, Defence Minister Gordon O'Connor said officials had reached an agreement to allow access to the detainees. But a day later, Prime Minister Stephen Harper said a deal was yet to be formalized.
The agreement comes despite the fact that Mr. Harper has assured the House of Commons that the old deal was working well. The Conservative government has also insisted that allegations of abuse are false even though no investigation has been conducted.
Since the story broke, the Conservatives have offered confusing and contradictory explanations.
After days of denying knowledge of any "specific" allegations of torture, Public Safety Minister Stockwell Day revealed Monday that Canadian correctional officers in Kandahar had indeed reported torture claims by two detainees.
Despite that revelation, the government's submission in the Federal Court hearing states that: "Canadian officials have not received any notification of mistreatment or torture of detainees transferred from Canada to Afghan authorities."
Opposition parties were outraged that the oral report from corrections officers - obtained by Mr. Day last week - was not clearly laid before the Commons.
They also accused Mr. Harper of misleading the Commons on Wednesday by claiming that Mr. Day had mentioned the corrections report of torture last week. In fact, Mr. Day said nothing of torture reports last week.
International law experts have said Canada or NATO should take over responsibility for detainees, but the written brief filed by Justice Department lawyers at Federal Court said that was not possible.
"The (Canadian Force) does not have the infrastructure, training or personnel to maintain a detention facility in Afghanistan," said the document.
It warned that holding prisoners at the temporary facility, located at Kandahar Airfield, would give captured Taliban fighters the opportunity to plan escapes.
The government submission also reveals that the Canadian Forces have two procedures for handling Afghan detainees, including one that does not involve any oversight by human rights groups.
The documents show that Canadian troops are authorized to hand some detainees directly to Afghan authorities, rather than take them prisoner.
That would appear to circumvent rules that require Canadian soldiers to notify human rights monitors when they detain Afghan militants.
With reports from Canadian Press and Reuters