Friday, June 24, 2011

The rules for censoring the Afghan detainee docs

On Wednesday, Airshow and Baird announced their success in killing off any further investigation into the abuse of  those Afghans it pleased them to refer to as "Taliban detainees" - the farmers and taxi drivers  handed off to the CIA-funded NDS on political orders from the Canadian government.

The release of a small percentage of heavily redacted docs reviewed by the three judges of the Panel of Arbiters completely vindicated the Canadian Forces, they read nervously from their notes. As if anyone other than them had insinuated allegations about "the troops" into what was their responsibility to comply with international law on the treatment of prisoners of a country we invaded.

Reading the panel's many restrictions on unredacting the documents, you might wonder how Speaker Milliken's order to release the docs to Parliament 18 months ago got watered down to whatever survived the following censorship :

The Panel of Arbiters can determine, at the request of the government, that certain information should not be disclosed due to the solicitor-client privilege.

The Panel of Arbiters, after consultation with the Clerk of the Privy Council, can also determine, at the request of the government, that information constituting Cabinet confidences should not be disclosed.
Also not to be released :
... information relating to the characteristics, capabilities, performance, potential deployment, functions or role of any defence establishment, military force or unit; and information obtained or prepared for the purpose of intelligence relating to the defence of Canada or an allied state.

 ... communications and documents obtained in confidence from third parties, generally allied states, should not be disclosed without the prior consent of the providing third party.

... information not widely known or accessible, where the authenticity of the information is neither confirmed nor denied, and where the information was inadvertently disclosed.

Government officials expressed serious concern about the disclosure of intergovernmental communications. They told us that all diplomatic communication is undertaken with the expectation of confidentiality and that disclosure of confidential communications would cause serious harm, regardless of the substance of the communication, and whether the “speaker” is Canada or a foreign government.

Certain documents referred by the Committee contain Canadian criticism of, or candid negative commentary about, Afghan institutions or officials. Some documents also contain Canadian reporting about criticism by one Afghan institution or official of another.

If the assessment appears to be merely speculation by a non-senior Canadian official, we generally either leave it redacted or summarize it at a very high level, making it clear in doing so that the assessment is the view of the individual, and not the government of Canada.
We exercise our judgment in each case to decide whether the information at issue is truly critical, and therefore would be harmful if released.

Generally speaking, we do not disclose any information or communications flowing from Canada to the ICRC [Red Cross]. We do not disclose any information, even in summary form, about or from the ICRC that is directly attributed to the ICRC or that it can be inferred comes from the ICRC.

...where information is not attributed to the ICRC, that the ICRC is the source of this information. Where that is the case, we leave the information redacted.

... information from third parties, such as foreign governments or intergovernmental organizations like NATO or NATO’s International Security Assistance Force. ... our approach is to not disclose or summarize third party information.

... the names of Afghan officials, including senior Afghan officials. Our approach is not to disclose these names except where the information, including the name, has already been widely disclosed.

... our approach is not to disclose or summarize information about Special Forces activities

...the use of gunshot residue (“GSR”) testing in Afghanistan ...disclose information indocuments relating to the use of the test and results obtained ... leave redacted other information to avoid compromising national defence.

... solicitor-client privilege is close to absolute ... extends to communications between government officials and government lawyers just as it does to any other lawyer-client communications. Unless it is waived by the client, solicitor-client privilege generally lasts forever.

Cabinet confidentiality may extend beyond Cabinet documents per se ; it may, for example, apply to communications between or involving Ministers.
So what was left to disclose on Wednesday after all the above censorship?
Just enough to shut it downApparently.


ron wilton said...

This Afghan thing reminds me of a moment in history class in high school in the late fifties.
A lot of the teachers were veterans of WWII.
The class was discussing the treatment of a large number,more than one hundred, of Canadian soldiers taken prisoner by the Germans, and for whatever reason the Germans apparently found it more expedient to shoot the prisoners rather than take them into a POW camp.
The male teacher was clearly upset by the story as his face flushed red and his eyes glistened.
A student asked if he was OK, and he said that it wasn't just the Germans who did that sort of thing.
The room fell silent.
The 'lesson' was over.
I have never forgotten that moment in my education.

Toe said...

We are now choking on the Harper Gov's censorship and the media must step up, as well as the panel of judges who saw unredacted docs. Yes they signed an oath, but honour and integrity come first in the reputation of Canada's military.

The Harper gov spent $12M to suppress the truth, because they knew very well the civilian arm, and the diplomats are culpable.

I have no confidence whatsoever in the ICC investigation, the ICC will not investigate a NATO partner in Afghanistan. We've been told a 'new' agreement for the panel to continue needs to be signed, so how do we force that?

Beijing York said...

The NDP should really take Harper and Rae to task on this. First allegations were reported by Foreign Affairs under Paul Martin's watch, that's why the Libs were so useless on this file. The fact that Stevie Harper is censoring all the documents is testimony in my view that the practice continued and was reported under his watch. If it had stopped, Harper would have been more than happy to smear the Liberals with it.

Alison said...

Ron : A hard lesson indeed.

Toe : I think this is key to what the panel were never able to see so would not be able to disclose even if they wished to.
From their letter : "We did not undertake a review of the government’s claims of cabinet confidence since we received confirmation of these claims only before Parliament was dissolved"
That would be a whole year after they began.
"Nor did we complete our review of all of the government’s claims of solicitor-client privilege."

Re a new agreement. According to the deal struck by Steve, Iggy, and Duceppe, a continuation after the last election is only possible under the same identical rules. As the NDP are unlikely to agree to the same stupid rules they declined to be bound to the first time round, I don't know where it goes from here.
Agreed on ICC. And not enough people give a shit. Good on Sinister Greg though, eh?

BY : If it had stopped, Harper would have been more than happy to smear the Liberals with it.
Yes. Lawyers appearing before a senate committee argued that Afghanistan was a sovereign state so we had to go along with their concept of justice. Not so sovereign we can't occupy them, mind you, just sovereign enough we have to accept the way the US was running them.

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