Senate scandal : the missing emails

Here's RCMP Cpl. Greg Horton explaining why he does not have access to the emails of Stephen Harper's personal PMO legal counsel Ben Perrin who handled the negotiations for the Duffy/Wright cheque deal with Duffy's lawyer Janice Payne:

I was advised that the e-mails of Benjamin Perrin were no longer available because he completed his tenure at the PMO in April 2013.

The emails were deleted mere weeks after they were written and a month before the Duffy deal went public because, as it happens, that's apparently standard practice for a departing employee.

How is that even credible?

Harper's dcomm Jason MacDonald explains : 

"Under the guidelines the Treasury Board has, the individual is required to distinguish between what should be considered a permanent document that should be preserved and what's a transitory document, as they call it, and can be deleted, and the onus is on the individual to make that distinction."

So it was up to Perrin to decide what to delete? Really?

Former HoC law clerk Rob Walsh :

"I just don't understand how any regime regarding documentation relating to an employee who is departing can leave it to the departing employee to decide which documents shall remain available to the employer and which shall not. I just don't understand it."

It seems quite mad really, as it could theoretically encourage the practice of hiring shortpantsers on the taxpayers' dime, after which all written evidence of whatever nefarious schemes they were asked to perpetrate could be erased. 

Law prof Amir Attaran has laid a complaint of professional misconduct with the law societies of BC and Ontario re Perrin and Payne, and also he raises this important point :

Horton writes that that the prime minister’s office waived solicitor-client privilege for those emails. That doesn’t mean that the prime minister has also waived privilege, Attaran points out. “The wording of the ITO is that PMO has waived privilege, not that the PM has.”
That may be relevant, he said, because Perrin may have had a “joint retainer,” meaning that he may have had both the office and the prime minister as his clients.

Perrin is mentioned over 30 times in the allegations of the RCMP affidavit, and while Horton states Perrin was not involved in Wright's decision to cut Duffy a cheque, these excerpts give an indication of what we might be missing in Perrin's missing emails :

Nigel Wright decided that he would personally cover the cost of reimbursing Senator Duffy. After back and forth negotiations between Janice Payne and Benjamin Perrin (legal counsel within the PMO) terms of the agreement were set.

Mr. Perrin became involved after the February 19, 2013, exchange when Senator Duffy asked for the name of a legal representative who his lawyer could communicate with. Thereinafter, Janice Payne and Benjamin Perrin communicated on this matter; Mr. Perrin was aware of Mr. Wright's personal decision to pay the money, but was in no way involved in the decision. 

Mr. Wright was not happy with Senator Duffy, and was no longer wishing to debate the matter. He told Senator Duffy that from that point on they will deal lawyer to lawyer on the matter (Payne and Perrin);

On February 21, Janice Payne sent an e-mail to Benjamin Perrin requesting media lines
On February 21, Janice Payne sent an e-mail to Benjamin Perrin with a list of 5 conditions or demands Benjamin Perrin followed up with an e-mail to Nigel Wright advising that Janice Payne wanted the agreement in writing, and stated, "I explained that was not happening. We aren't selling a car or settling a lawsuit here. She seemed to get it eventually."

On March 1, Janice Payne e-mailed Benjamin Perrin for an update on Senator Duffy being withdrawn from the Deloitte audit.

On March 5, Janice Payne e-mailed Benjamin Perrin and Arthur Hamilton (Conservative Party lawyer) seeking advice.

On March 20, after sending an e-mail to Benjamin Perrin and Arthur Hamilton about the Deloitte process, Janice Payne sent an e-mail to Senator Tkachuk seeking confirmation that the audit would be called off upon repayment.

On March 23, Janice Payne e-mailed Benjamin Perrin and stated: "Ben, yesterday we discussed the Senator sending a cheque to Deloitte with a letter explaining our position that the ongoing review should now be moot. I am preparing such a letter." She then sent Mr. Perrin a draft of the letter she intended to send to Deloitte, and solicited comments from Mr. Perrin and Nigel Wright.

Nigel Wright responded to Benjamin Perrin: think that this is perfectly fine (and I resist making minor suggestions since I would prefer to be able to answer, if necessary, that PMO did not write it)

In an earlier e-mail to Benjamin Perrin, Nigel Wright stated: think her approach works. I will send my cheque on Monday.

On March 24, Janice Payne sent an e-mail to Benjamin Perrin stating that Senator Duffy . .. asks for assurance that should any Senator seek his removal, the Gov 't leader in the Senate will urge her caucus to vote against such a motion

On March 26, Benjamin Perrin received an e-mail from Janice Payne's office stating "we have just sent the cheque to Senator Tkachuk by courier".

And then Mr. Perrin, along with all his emails, was gone.  Image from CTV.

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Dec 2 Update : Well, wouldn't you know it? They'd just fallen down the back of the couch.
Dec 5 Update : ITO contains 24 references to PMO legal counsel, Benjamin Perrin, dating from the time Mr. Wright began arranging a plan to end the controversy over Sen. Duffy’s expenses until it was completed.
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Iacobucci Sandbagging redux

On Friday Justice Minister Rob Nicholson announced the government was appointing Frank Iacobucci, a former Supreme Court judge with no legal hold over them, to determine what documents pertaining to the Afghan detainee issue could be released without compromising national security, national defence, and/or international relations. The scope and terms of Iacobucci's appointment are not known and he will report directly to Nicholson.

A number of bloggers have already weighed in on Iacobucci's suitability to the task. Steve at Far and Wide in particular points to Iacobucci having already previously agreed to omit information - at the Minister's request - from the public version of his October 2008 inquiry into the illegal renditioning of three Canadian citizens, Abdullah Almalki, Ahmad el-Maati, and Muayyed Nurredin to Syria and Egypt where they were tortured before being deemed innocent.

In light of Prof. Amir Attaran's explosive allegations on CBC that Afghan detainees were handed over to Afghan authorities with the precise purpose of having them tortured, and tonight's news that CSIS was involved in the interrogation of Afghan detainees, it's worth looking at what was omitted from Iacobucci's 2008 report.

What was included in the initial report was bad enough ;
In September 2001, the RCMP described Mr. El Maati to Syria and Egypt as an Al Qaeda associate and an "imminent threat to public security"
CSIS decribed him as "involved in the Islamic Extremist movement" and "an associate of an Osama Bin Laden"
They then shared his travel plans with the CIA who passed them on.
Mr. El Maati was detained in Syria for two months and Egypt for two years, where he was tortured with electric shock to his hands, back and genitals, and sleep deprivation while being subjected to excruciatingly painful stress torture for days on end.
In 2003, CSIS sent Egypt a “statement of concern” about Mr. El Maati should he be released from custody.

Iacobucci said he could not stress sufficiently that these three must "be presumed innocent of any wrongdoing."

The omitted part that Steve alludes to was released just two weeks ago as a supplement :
In June 2002, CSIS agents advised Egyptian authorities that El Maati was involved in a plan "to commit a terrorist act in Canada". They did not say, and maintain they could not have known, that this "confession" was derived from his torture in Syria.
In December 2002, CSIS went to Egypt with a list of questions "to which it wished to obtain answers."

While we the public were prevented from seeing this latest information till two weeks ago, Justice Iacobucci knew it all along and sought to have it made public. And yet in his summation to his 2008 report he still concluded :

"The inquiry did find that the three men were tortured in foreign prisons and that the mistreatment may have "resulted indirectly from several actions of Canadian officials."

but that :

"I found no evidence that any of these of these officials were seeking to do anything other than carry out conscientiously the duties and responsibilities of the institutions of which they were part."

And that, as I said at the time, is the most damning part of all.

I offer this blogpost just to run to ground the discussion on Iacobuccu's suitability as a beard for the Cons. In truth, I'm with Pogge and Eugene Forsey here - Nicholson can talk to anyone he likes - it doesn't matter. Parliament has demanded the documents. The Cons are currently in contempt of Parliament. Ultimately they must be forced to give the documents up. It's the law here.
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Ankle-deep in blood and shit

A request for desert camel boots from Stockwell Day's newly arrived leader of a Correctional Service Canada inspections team in Afghanistan in February, 2007:

"They afford the appropriate ankle support when getting in and out of the LAV/Coyote/Nyala vehicles. Additionally the colour is more appropriate in the summer heat. On a Health and Safety level we will be walking through blood and fecal matter when either on patrol or in the prison and should not be wearing our personal footwear as it will track into our personal quarters."

It's certainly tracking all over the carpets in Ottawa now.

G&M : Nov 19, 2007 "The government was forced to release the documents on detainee conditions after a federal judge ordered it to disclose them as part of a suit brought by Amnesty International Canada and the British Columbia Civil Liberties Association."

CP Nov 5, 2007 "The government had argued that the issues involved were political rather than judicial, that human rights advocates lacked any legal standing to mount a challenge, and that the case should be thrown out because it has no chance of succeeding."

Co-council to both human rights groups, Amir Attaran, has been trying to alert us and get some action on this since at least March 2006, when he and Michael Byers along with Louise Arbour, Canadian rep at the UN, all published papers on the abuse of Afghan detainees.
The Afghan Independent Human Rights Commission, in 2004 : "Torture continues to take place as a routine part of police procedures. The AIHRC has found torture to occur particularly at the investigation stage in order to extort confessions from detainees."

This is what Con House leader Peter Van Loan still airily refers to as "allegations by the Taliban".

Are we there yet? Could we get some grown-ups on this?
Look, we have a lot of serious issues to deal with in Canada : important stuff like fixing our debt to First Nations, stopping the sell-off of Canadian companies and the flow south of our resouces, getting serious on the environment, to name just a few.
Canada is already a signatory to the Geneva Conventions. We simply don't have time to go back and re-fight and re-argue all the battles for some semblance of civilization that we have already won. And we certainly don't have time for any government that hasn't figured this out yet.

Update : Mattt at bastard.logic links to skdadl's comment at Pogge :

"I think we call this the banality of evil. I have to walk through blood and fecal material, so I need better boots. This is the road to Nuremberg, folks. And this is being done in our name. Everyone happy to sit here quietly and be a "Good Canadian"? "

Resign now : Hillier and O'Connor

G&M : From Canadian custody into cruel hands
"Afghans detained by Canadian soldiers and sent to Kandahar's notorious jails say they were beaten, whipped, starved, frozen, choked and subjected to electric shocks during interrogation.
In 30 face-to-face interviews with men recently captured in Kandahar province, a Globe and Mail investigation has uncovered a litany of gruesome stories and a clear pattern of abuse by the Afghan authorities who work closely with Canadian troops, despite Canada's assurances that the rights of detainees are protected."

G&M : Calls for Defence Minister ouster over Afghani detainees
"Canada's opposition parties were demanding changes to the Afghanistan detainee transfer agreement and calling for the Defence Minister's resignation following accounts of gruesome torture of prisoners in Kandahar.
NDP Leader Jack Layton said the transfer of prisoners to Afghan authorities should stop immediately, a public inquiry be launched and Mr. O'Connor be sacked. He was backed up by all opposition parties."

UBC Int. Law Prof. Michael Byers : “If this report is accurate, Canadians have engaged in war crimes, not only individually but also as a matter of policy.”

OK, we've been playing at being the "good Germans" for well over a year now, in the face of all and any evidence from groups like the Afghan International Human Rights Commission, to whom we have entrusted the safety of detainees captured by our troops, and the Revolutionary Afghan Womens Association.
Is there any meaningful difference between U.S. and Canadian foreign policy as regards the rights of brown peoples?
Anybody feel up to doing a little "standing on guard for thee" today?

Make your voice heard - CBC, the Globe and Mail, your MP, your favourite Afghan war apologist.
Just do it right now. Because this absolutely will not stop until we make it stop.

Then go read Dana.
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O'Connor's "Bumps along the road and little glitches"

Just a couple of guys who were the victims of bad intelligence.

On the heels of Defence Minister Gordon O'Connor's apology for misleading the House with assurances that the Red Cross would report any mistreatment of Afghan prisoners to Canadian authorities, the Globe and Mail reports today that O'Connor was the victim of bad intelligence from his policy advisors.

"The group, led by assistant deputy minister for policy Vincent Rigby, first advised Mr. O'Connor last May that "if pressed" in the Commons with questions about detainee follow-up, he should respond by saying: "If the ICRC advised us of some problems with transferred detainees, we would discuss the issue with the government of Afghanistan." "

This has certainly been Mr Rigby's own preferred response when pressed :


Rigby, addressing the Standing Committee on National Defence on Dec 11, 2006:

"With respect to the International Committee of the Red Cross, again, they have an international mandate to follow up in this regard with detainees who are transferred to Afghan authorities. Our relationship with the ICRC has been excellent. They have all the information we've provided to them, and certainly they've had access and have been following up with detainees we've transferred to Afghan authorities."

and

"We're very comfortable with the role of the International Committee of the Red Cross, with the Afghan Independent Human Rights Commission, and with our access to prisons as required. We've had absolutely no information passed to us directly by the ICRC or the Afghan Independent Human Rights Commission or Afghan authorities themselves as to mistreatment of detainees passed on to Afghan authorities by Canadian Forces."





There's lots more quotes like this from Rigby but you get the gist : he never actually states that we're depending on the ICRC to report back to us about the prisoners we hand over; he just mentions them in the same sentence every time it comes up.

The previous May, O'Connor was deferring all such questions regarding prisoners to Rigby.

From the Standing Committee on National Defence, May 30, 2006 :


"NDP Ms Dawn Black: I've had a lot of interest and questions about the detainee transfer agreement with Afghanistan. Has NATO concluded a detainee transfer agreement with Afghanistan, and when will that agreement be made public? I would assume that it will be, if indeed there is an agreement with NATO, and that it would govern Canadian transfers once NATO assumes control through ISAF in the south.

Hon. Gordon O'Connor: I don't know that, ma'am. I'm going to have to ask Mr. Rigby.
Is there such a thing as a NATO agreement for detainees?

Mr. Vincent Rigby (Acting Assistant Deputy Minister (Policy), Department of National Defence): We're certainly working on that right now, Ms. Black, in a NATO context. Certainly Canada is very involved in Brussels in helping draft that document, but it's not finished yet. I'm not aware of exactly how.... One of the issues is how it will relate to the Canadian detainee arrangement and the other detainee arrangements that NATO allies have right now, so it's still a work in progress; we still have a little ways to go.

NDP MP Ms Dawn Black: Essentially, are Canadian soldiers instructed to give minimal protections because this is not an international conflict, or do we give the full prisoner-of-war protections, such as preventing prisoners from being humiliated or being put as public curiosities and photographed?

Hon. Gordon O'Connor: My understanding is the latter--that we maintain the highest standards.
I'll ask Mr. Rigby to confirm that."





Yeah, ok, that's enough of that. You get the idea. O'Connor doesn't appear to know anything about prisoners and repeatedly cues Rigby up to "imply".

And it was all going just swimmingly until O'Connor stood in Parliament - without Rigby - and made that one small causative embellishment on Rigby's usual series of passive-voice obfuscations :

"The Red Cross or the Red Crescent is responsible to supervise their treatment once the prisoners are in the hands of the Afghan authorities. If there is something wrong with their treatment, the Red Cross or Red Crescent would inform us and we would take action."



and another time :

"The process is that if Canadian soldiers capture insurgents or terrorists they hand them over to the Afghan authorities and then the International Red Cross or Red Crescent supervise the detainees. If there is any problem, the Red Cross or Red Crescent would inform us and then we would become involved."

At which point the ICRC was forced to say that no, they wouldn't, because it was not in their mandate to report back to third parties.

The US State Dept, Louise Arbor at the UN, Amir Attaran, Michael Byers, and the Afghan International Human Rights Committee have all described torture of detainees in Afghanistan as "routine".
But O'Connor's getting his advice from a guy who once described Canada's decision to stay out of Iraq and the US Ballistic Missile Defense Program as "bumps along the road and little glitches".

That was Vincent Rigby in his powerpoint presentation to the Heritage Foundation in Washington.
You can watch it here.

UPDATE : Well now look - you guys have pissed Dave off with your Bushwhackery.
That link to Rigby's Dec 2006 appearance before the National Defence Standing Committee keeps going down so here it is in a cached pdf And I forgot to thank Audacious Ontology for the G&M link.

It isn't a war, so the rules of war don't apply

The Ottawa Citizen, April 10 : Canadian soldiers may be subject to war crimes charges.

CTV.ca, May 31 : Canada not at war in Afghanistan : O'Connor

The Globe and Mail, May 31 : Troops told Geneva rules don't apply to Taliban

In April, UBC international law professor Michael Byers and University of Ottawa Prof. Amir Attaran, a constitutional human rights law specialist, said that the International Criminal Court could charge Canadian soldiers with war crimes because they transfer prisoners into Afghan custody where even the Afghanis state the prisoners are regularly tortured.

But O'Connor says we're not really at war.

So Lieutenant-General Michel Gauthier, who commands the Canadian Expeditionary Forces Command and all Canadian Forces deployed abroad, says because the regulations only apply in an armed conflict between states, and what's happening in Afghanistan is not an armed conflict between states, therefore there is no basis for determining whether or not individuals are prisoners of war.

It isn't a war, so there are no POWs and therefore the Geneva Conventions don't apply to us.
Just like the US.

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The Great Parliamentary Afghanistan Debate

Harper wasn't there. Neither was Duceppe.
Not only was there no vote, there was no debate either.

Out of a possible 308 MPs:
58 Conservative MPs, dropping to 14 after O'Connor finished
21 Liberals but dropped to 10
2 Bloc Quebecois
8 NDP, rising to 20

Fucking shameful.
Especially as Canadians are divided about 50/50 over whether we should be there at all.

Here is one reason we are just a bit concerned:

"Canadian soldiers could be charged with war crimes in the International Criminal Court because of an agreement the government approved on the handling of detainees captured in Afghanistan," warns UBC international law professor Michael Byers.
University of Ottawa Prof. Amir Attaran, a constitutional human rights law specialist, agrees. Under international law Canada has an obligation to ensure any detainee is protected against torture, not only when they are transferred into Afghan custody but if they are sent onwards to a third nation, such as the U.S.

Defence Minister Gordon O'Connor said last week he is satisfied with the pact, as is Opposition leader Bill Graham, who was the Liberal's defence minister when the agreement was signed in Kabul in December.
Chief of the Defence Staff Gen. Rick Hillier signed the agreement even though the Afghan government's own human rights commission warned in 2004 that the torture of prisoners is "routine."
So far, more than 100 detainees from Iraq and Afghanistan have died in U.S. custody.

Canadian military officers, however, have continually said they are confident any detainees turned over to the U.S. would be treated humanely."

Here's another reason, from the Government of Canada National Defense website :

"On November 29, 2005, Camp Julien, which was the Canadian base of operations in Kabul, officially closed. Canadian Forces personnel in Afghanistan, were relocated to Kandahar in the southern region of Afghanistan as part of the United States-led campaign against terrorism known as OPERATION ENDURING FREEDOM ( OEF )."

And Defense Minister Gordon O'Connor had the unmitigated gall to open the proceedings with Bush's "Fly-paper" analogy :

"Fighting terrorists in Afghanistan is better than waiting until they show up in vancouver, Montreal or Ottawa, Defence Minister Gordon O'Connor told the Commons on Monday.
"Canada is in Afghanistan because it is in our national interest,'' he said. "Our security begins very far from our borders. "
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