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 :

REPORT BY THE PANEL OF ARBITERS ON ITS WORK AND METHODOLOGY FOR DETERMINING WHAT REDACTED INFORMATION CAN BE DISCLOSED , excerpted

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 down.  Apparently.
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Inside the new recalibrated Afghan committee

Back in 2007 the Cons claimed that all the Geneva Conventions do not apply in Afghanistan because we are not officially at war with Afghanistan. Yesterday in the Afghan parliamentary committee, Con MP Jim Abbott attempted to resuscitate that position.
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Appearing as a witness before the committee, Paul Champ, human rights lawyer for Amnesty International and the BC Civil Liberties Association, advised that the UK suspended detainee transfers in June 2009.
If the Brits still think the risk of torture is too great, he asked, why does Canada think it's safe, particularly in light of the 2009 report from the US State Dept dated March 11 2010 regarding continuing reports of detainees being beaten, subjected to elecric shocks etc?
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Hawn asked whether it is appropriate to impose Canadian standards on Afganistan.

Champ : "Prisoners in Canadian corrections facilities are not subjected to electric shocks or beaten with electrical cables or hung up for days."

Dosanjh : "Are you suggesting that we as Canadians, the Canadian government in particular, with the evidence before us, are in breach of our obligations vis a vis the Geneva conventions?"

Champ : "Yes and also the convention against torture and human rights [I didn't catch it]."

Dosanjh ; "Is it your view that the government of Canada today if taken to court would be likely to be found in breach of international obligations?

Champ : "I do ... Prohibition against torture is a non derogable duty."

Abbott : "Dosanjh's question is irresponsible. Would you agree with me that the Geneva convention does not apply in Afghanistan because it is not a state-to-state conflict, and would you further agree you were worried that we could be or soldiers could be subject to laws under the Geneva convention. And considering that it doesn't apply, would you agree, why would you answer that irresponsible question with an irresponsible answer?

Champ : "I would disagree with you that the Geneva convention does not apply to the armed conflict in Afghanistan."

Abbott : "Who was the other state?"

Champ : "You are quite right there's some dispute whether its an international armed conflict or not but regardless Common Article 3 - which is the duty not to subject individuals to inhumane or cruel treatment - that applies both in internal civil armed conflicts or international armed conflicts so that applies regardless and I think almost any lawyer would agree with me on that."

Abbott : "Are you chery-picking the Geneva convention?"

Champ : No I don't think so.
Common Article 3 applies in all conventions 1,2, 3 &4 . It's the prohibition against cruel and inhumane treatment and I think any lawyer would agree with me that it applies in this conflict."

There was more showboating from Abbott about docs leaked in the US "sending Osama bin Laden back to his caves" and "damage to soldiers from the complete public release of all docs" - which the unflappable Champ responded to by explaining that what is needed is a functioning system for dealing with all this and no one has suggested full scale public release of the docs and for instance he for one does not expect to see them.

Hawn opined that Champ is an employee of 2 orgs that are fighting our government so it's all just a partisan political witch hunt and we should move on to other matters.

Bachand reminded Hawn that the Cons boycotted the committee before xmas and then prorogued for a month so it's pretty rich they now just want to move on, at which they all went "in camera" for a fight.

I do not see how we can "move on" as long as we have a government that does not believe in prohibitions against torture.

UPDATE : Dave explains yet again why the Cons fiddling around with definitions of torture endangers the very troops they purport to champion as they hide behind them.

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Operation Enduring Freedom From Difficult Facts

It was back in October when we first heard about US Marines relocating from Iraq to Afghanistan :

"The US Marine Corps has insisted that its forces be removed from Iraq and sent to Afghanistan instead to take the lead in combat there.
According to senior military and Pentagon officials, the suggestion was raised in a session last week convened by Defence Secretary Robert M Gates for the Joint Chiefs of Staff and regional war-fighting commanders, the New York Times reported.
This would leave the Iraq war in the hands of the Army while the Marines would play an important role in Afghanistan, under overall NATO command."


Then came the Manley panel report and the whole drama of Harper's conditions for staying on in Afghanistan - where oh where would the 1000 extra troops and air power evah come from? - and now the US Marines are indeed relocating to Afghanistan as planned and Operation Enduring Freedom is in da house!


CBC : Afghanistan joint command
"There were sighs of relief in government circles earlier this month when the United States agreed to provide at least an additional 1,000 marines to the Canada-led mission in Kandahar.
Finding an extra 1,000 combat soldiers to help the 2,500-strong Canadian military mission in troubled southern Afghanistan was a key Canadian condition — along with more air power — for keeping our troops there until the end of 2011."


Way to keep up, CBC. I do believe we've already bitched that one.

But in what CBC refers to as the "new, more side-by-side relationship between American and Canadian soldiers in southern Afghanistan", a few questions arise about our differing policies. Quite apart from how the command structure is supposed to work, there's the American propensity for wiping out marijuana and poppy crops, ie Afghani livelihood; their greater reliance on air strikes, ie bombing Afghan civilians; and the little matter of their torturing detainees/POWs, ie Bagram., the US internment facility where Afghan detainees known to be innocent of any crimes are beaten to death.

Uh-oh - detainees. This issue is already a big optics headache for Harper in Canada, and news that detainees might fall under US - Canadian joint jurisdiction is going to play badly for the Cons.
But wait!


CTV : Ottawa hopes to block probe into Afghan detainees :
"The government is seeking to block an independent investigation by the Military Police Complaints Commission into Canada's handling of Afghan detainees, according to court documents filed in Federal Court.
Amnesty International Canada and the B.C. Civil Liberties Association filed a complaint with the commission last year, after allegations surfaced that detainees had been tortured by local Afghan authorities.
Government lawyers filed an application Friday to halt the investigation, saying the commission does not have jurisdiction to probe the complaints."

Something they might have mentioned at any time since the commission began its investigation.
And as Pogge points out, if the commission doesn't have jurisdiction, why has the government of Canada been complying, however reluctantly, with its demands for documentation up till now?

Possibly because now we're under deadline to align our Operation Enduring Freedom From Difficult Facts policies with those of the US before the 'partnership' begins in July - that's why.

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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