Canada: Redactions hamper Afghan detainee probe

Unreadable documents make meaningful inquiry ‘almost impossible’ and reflect government efforts to keep record a secret

A detainee captured by the Afghan Army on a joint patrol with Canadian troops sits by a wall at a Canadian Forward Operating Base in Howz E Madad in Zhari District, Kandahar Province, Afghanistan. Louie Palu/ZUMA Press

A detainee captured by the Afghan Army on a joint patrol with Canadian troops
Louie Palu/ZUMA Press

By Paul Koring
Globe and Mail
Nov. 30, 2009

The Harper government has blacked out large sections of relevant files handed over to the independent inquiry probing allegations of transfer to torture of detainees in Afghanistan, despite the fact that its investigators have the highest levels of national security clearance.

The heavily redacted documents, obtained by The Globe and Mail, underscore the sweeping nature of the government's efforts to keep the documentary record from the Military Police Complaints Commission, which is attempting to conduct an inquiry into allegations that Canada knowingly transferred prisoners to likely torturers in Afghanistan.

The MPCC's repeatedly thwarted effort to get to the heart of the detainee-transfer issue – it has faced attempts by the Harper government to gag witnesses, limit the scope of the investigation and withhold documents – prompted opposition politicians to open their own limited probe through a parliamentary committee, leading to last week's explosive testimony by diplomat Richard Colvin. But that committee's efforts have been similarly stymied, since it has no power to compel the government to deliver the documentary record and no real opportunity to cross-examine witnesses.

In the material delivered to the MPCC, government blackouts render unreadable many of the documents, some drafted by Mr. Colvin. The sweeping redactions were imposed even though everyone who works with or serves on the MPCC must have at least “secret” clearance and all of the senior investigators, as well as the panelists who would conduct the inquiry, have the highest security clearances.

“I'm not sure ‘cover-up' is the right word but someone is going to considerable lengths not to disclose what was known,” said Stuart Hendin, an expert in the law of war and international-rights issues who represented now-retired Brigadier-General Serge Labbé, one of the most senior Canadian officers embroiled in the Somalia affair 16 years ago.

“It's almost impossible for any independent authority to conduct a meaningful inquiry” with documents rendered so unreadable, Mr. Hendin added. “It all suggests someone knew there were issues.”

Some documents dating back to spring of 2006, a full year before ministers and senior officers said they first heard of abuse allegations, are entirely blacked out. Others have whole sections censored.

The redactions aren't based on freedom-of-information or privacy laws, but on an untested claim that the government can block access by the MPCC, an independent investigative body created in the wake of a high-level cover-up that was partly exposed by the Somalia inquiry before it was shut down in 1997.

The government contends that Section 38 of the Canada Evidence Act gives it the latitude to withhold some documents – and heavily redact others – even through the MPCC was created by Parliament with a structure and investigators capable of dealing with highly classified issues involving the military police, who are responsible for the custody and transfer of prisoners captured on the battlefield.

Until recently, the government routinely provided documents with such classifications to the MPCC, investigators say. But when it sought to investigate allegations that Canadian military police had been ordered by ministers and senior bureaucrats to transfer detainees to Afghan authorities knowing they would probably be abused and tortured, the government claimed in Federal Court that the commission had exceeded its mandate.

Transfer to torture is a war crime under the Geneva Conventions. It is also outlawed by international convention.

The Globe has only a limited number – roughly 80 documents – totalling fewer than 200 pages out of thousands sought by the MPCC. Most of the heavily redacted documents carry low-level security designations, such as “CEO,” which means “Canadian Eyes Only” – a level below secret. “Many have top secret and we have secure facilities to allow for rigorous security,” said Nancy-Ann Walker, a spokeswoman for the MPCC.

[...]

Defence Minister Peter MacKay has chosen not to renew Mr. Tinsley's appointment as chairman of the MPCC, despite the fact it is in the midst of the most complex and serious case in its 10-year history.

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