The battle over whether prisoners turned over by Canada to Afghan security forces face torture and abuse moves to federal court today where rights groups will seek an injunction ordering an immediate halt to further transfers until the case can be fully heard.
The government is fighting back, firing a legal barrage urging the court to reject the claim by Amnesty International Canadian and the British Columbia Civil Liberties Association that the transfers "expose detainees to a substantial risk of torture."
Defence Minister Gordon O'Connor, Chief of Defence Staff General Rick Hillier and the Attorney-General want the motion tossed out. The torture claims, they say, are unproven, based on hearsay.
"Articles in The Globe and Mail should not be admissible evidence," the government argues in a 32-page brief.
That's only one of a host of arguments the government will put to the court opposing the injunction.
Among the others: Halting transfers could cause more Canadian casualties; Canadian troops aren't trained or equipped to run a prison camp; building one would require showers and a place to pray; neither Amnesty nor the BCCLA can claim to speak for anonymous detainees and the Charter of Rights and Freedoms doesn't protect unknown foreigners halfway around the world.
Perhaps the most powerful arguments are that granting an injunction would interfere with the government's ability to wage war and that the courts should not allow themselves to be used by interest groups to challenge government policy.
Today's day-long hearing could be the first step in a long legal process that might end only when the Supreme Court decides the extent to which the Charter of Rights marches with Canadian forces fighting abroad.
Or it could amount to the firing of a legal blank, with the court rejecting the efforts of rights groups to assert Charter rights on behalf of unknown detainees facing uncertain fates in a faraway place.
Canadian Forces have two separate procedures for handling detainees captured during operations in Afghanistan, including one process that does not involve any oversight by human rights groups, CBC News reported yesterday.
Military documents show that Canadian troops are authorized to hand some detainees directly to Afghan authorities on the battlefield, rather than take them prisoner.
The battlefield transfers appear to circumvent a complicated set of rules that require Canadian soldiers to notify human-rights monitors when they detain Afghan militants, CBC reported.
The documents state that Canadian soldiers are allowed to decide if they want to detain a militant. If commanders think the militant has intelligence value, they can decide to take him prisoner.
If not, according to the documents, Afghan Security Forces officially make the capture.
The military documents were part of an affidavit filed before a federal court by Amnesty International for a case to be heard yesterday.
"The Charter does not apply" the government contends. "The conduct at issue takes place outside Canada ... it involves unidentified individuals who ... have no connection to Canada."
The government argues that the controversy regarding allegations of torture is "being addressed as a matter of high policy by the government" and that the "the court should not employ the blunt instrument of an injunction to compromise the ability of the Canadian Forces or limit the options available to the government."
While no details are revealed about the still-secret number of detainees transferred - first to U.S. prisons and since December, 2005, to Afghan security forces - the government brief discloses for the first time the size of Canada's detainee transit camp at Kandahar air base. "It contains 16 cots in four tents, its maximum capacity is actually eight to 10 persons," says the brief, adding it is unsuitable for long-term use.
A prison camp would require "more durable structures, an ablutions area, messing facilities, provision for special religious activity and an area to exercise, none of which exist" in the transit facility.