Colvin torture testimony – the full transcript

After the jump, the complete transcript of Richard Colvin’s testimony to the Commons Speical Committee on the Canadian Mission in Afghanistan. This is the unofficial, unedited, untranslated text, in the language spoken.

CANADA

Special Committee on the Canadian Mission in Afghanistan

Comité spécial sur la mission canadienne en Afghanistan

EVIDENCE number 15,
Témoignages du comité numéro 15

UNEDITED COPY – COPIE NON ÉDITÉE

Wednesday, November 18, 2009 – Le mercredi 18 novembre 2009

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[English]

The Chair (Mr. Rick Casson (Lethbridge, CPC)): We’ll call the meeting to order.

Today we have the 15th meeting of the Special Committee on the Canadian Mission in Afghanistan, and pursuant to the Order of Reference of Tuesday, February 10, 2009 and the two motions adopted by the committee on Wednesday, October 28, 2009, the committee commenced its study of the transfer of Afghan detainees from the Canadian Forces to Afghan authorities as part of its consideration of the Canadian mission in Afghanistan.

I’m going to read the two motions here.

Today we have two witnesses, two different panels. We’ll start with Richard Colvin, the first secretary, Embassy of Canada to the United States of America at the moment, and as an individual, Bokenfohr, legal counsel.

Later on the second panel will consist of Peter A. Tinsley, chair, Military Police Complaints Commission.

Then, committee, we have to go in camera to deal with the fifth report of the subcommittee on agenda and procedure.

The motions that I referenced in the opening state this:

That the committee review the laws, regulations and procedures governing the transfer of Afghan detainees from the Canadian Forces to Afghan authorities including section 37 and 38 of the Canadian Evidence Act, and that the committee report its findings and recommendations to the House of Commons.

That was moved by Mr. Bachand.

Mr. Dewar’s motion passed:

That the committee hold hearings regarding the transfer of Afghan detainees from the Canadian Forces to Afghan authorities.

Those are the two motions under which the committee will operate today.

Mr. Colvin, welcome, sir.

Go ahead.

Mr. Laurie Hawn (Edmonton Centre, CPC): I do have a short point of order to begin. Earlier today Mr. Dosanjh in an interview referred to documents before the Military Police Complaints Commission and that he had knowledge of them. I don’t know what was in these documents. I didn’t know they had been publicly released. I am curious as to whether Mr. Dosanjh has those documents, if they can be tabled in English and French, and if he plans to refer to them during his questioning this afternoon.

The Chair: Mr. Dosanjh.

Hon. Ujjal Dosanjh (Vancouver South, Lib.): No, I don’t have the documents. The documents I would have would be public documents. I don’t have any other documents.

The Chair: Fair enough. Thank you for that.

Mr. Colvin, before I start, I would like to just give a brief statement, which I think is an assistance to yourself, sir.

Before we proceed with the hearing today I wish to inform the witness that members of the Subcommittee on Agenda and Procedure of the Special Committee on the Canadian Mission in Afghanistan met on Monday, November 16, 2009 in order to discuss a number of important issues concerning our hearings.

It is the desire of the whole committee to thoroughly examine issues surrounding the transfer of Afghan prisoners. As chair of the special committee on Afghanistan, and on behalf of all of its members, I would like to inform you of the following. Should a witness appearing before this committee believe that their response to a question from a member might in any way compromise national security, endanger our men and women serving abroad, or damage international relations, then he or she should say so immediately. In a case such as this, I will then, as chair, ask the witness to briefly explain their concern, and offer the opportunity to answer that question in camera at the end of the session.

Do you understand, sir?

Thank you very much.

The usual procedure, sir, is you give an opening statement and then we go into rounds of questions from the committee.

Are you ready to proceed? Go ahead, sir.

Mr. Richard Colvin (First Secretary, Embassy of Canada to the United States of America): Thank you, Mr. Chair, and thank you to the committee for convening this session.

I would like to thank the committee for its interest in this important issue.

In this public setting, I will do my best to shed light within the limits imposed by my professional obligations, such as protecting the confidentiality of sources.

[Français]

Cette présentation durera environ 15 minutes, mais, après, je serai prêt à répondre à vos questions, soit en français ou en anglais.

[English]

A little bit of background: I joined the Department of Foreign Affairs and International Trade in 1994. I’ve had five overseas assignments in Sri Lanka, Russia, the Palestinian territories, Afghanistan and now in Washington, D.C. Afghanistan was therefore my second Islamic posting and third insurgency.

I spent 17 months in Afghanistan, first as a senior DFAIT representative of the provincial reconstruction team, or PRT, in Kandahar and then for over a year at the Canadian Embassy in Kabul as the head of a political section and chargé d’affaires—that is, the acting ambassador.

In these capacities, I was responsible for a large number of issues, including getting additional Afghan police and soldiers to Kandahar to relieve Canadian Forces, development issues, counter-narcotics, coordination with our NATO allies, the UN and the Afghan government and security and intelligence files. Detainees was only one of about 15 major issues that I worked on. My primary focus was on improving the effectiveness of our efforts so that we had a better chance of achieving our goals.

I volunteered to go to Afghanistan. Canada’s objectives are noble: to help bring peace, prosperity and hope to Afghans after 30 years of war and the repressions of the Taliban. I’d like to start with two general comments. First, Afghanistan was an extraordinarily difficult environment. Canada had not fought a war since the Korean War 50 years earlier and had not fought a counter-insurgency since the Boer War, 100 years ago.

Insurgency is the most complicated, demanding and subtle of wars. There are vital geopolitical and security interests at play in Afghanistan. Kandahar is the most important province in the whole country and, most importantly, lives are on the line—Canadian lives and also Afghan lives. Afghanistan is not some bureaucratic exercise. It was therefore critical that we approach this daunting challenge with seriousness, humility and a willingness to listen, to learn and to adjust.

Second, I was very proud to have served in Afghanistan alongside the courageous and professional men and women of the Canadian Forces, including Canada’s military police. The focus of our attention, in my view, should not be on those who obeyed their chain of command, which soldiers are obliged to do. Instead, any responsibility for Canada’s practices toward detainees lies, in my view, with the senior military officers, senior civilian officials and the lawyers who developed the legal framework, designed the policies and practices and then ordered that they be implemented.

What was the nature of our detainee system in Kandahar? Perhaps a good place to start is to compare our practices to those of our principle NATO allies in southern Afghanistan: the United Kingdom and the Netherlands. What we were doing differed in five crucial respects.

First, we took and transferred far more detainees. As of May 2007, Canada had transferred to the Afghan authorities six times as many detainees as the British, who were conducting military operations just as aggressive as ours and had twice as many troops in theatre, and we had transferred 20 times as many detainees as the Dutch.

Second, we did not monitor our own detainees after their transfer. Again, unlike the British and Dutch, Canada’s memorandum of understanding on detainees, signed by General Rick Hillier in December 2005, had no provision for our own officials to follow up on what happened to our detainees after they were handed to the Afghan intelligence service, the NDS, or National Directorate of Security.

Instead, our detainee system relied upon two human rights groups to monitor the wellbeing of detainees after transfer: the Afghanistan Independent Human Rights Commission, or AIHRC, and the International Committee of the Red Cross. Unfortunately, the AIHRC had very limited capacity and, in Kandahar, were not allowed into the NDS prisons. For the purposes of monitoring our detainees, they were unfortunately quite useless.

The Red Cross is a very professional and effective organization. However, they were also no good for us as monitors. Once a detainee had been transferred to Afghan custody, the Red Cross, under their rules, could only inform the Afghan authorities about abuse. Under those strict rules, they are not permitted to tell Canada.

The third important difference is that, again, unlike the Dutch and British, Canada was extremely slow to inform the Red Cross when we had transferred a detainee to the Afghans. The Canadian Forces leadership created a very peculiar six-step process. Canadian military police in Kandahar had to inform the Canadian Forces command element at Kandahar airfield, who in turn informed Canadian Expeditionary Force Command, or CEFCOM, in Ottawa.

CEFCOM would eventually inform the Canadian Embassy in Geneva, who then informed Red Cross headquarters in Geneva, which was finally able to notify the Red Cross mission in Kandahar. This process took days, weeks or, in some cases, up to two months.

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The Dutch and British military, by contrast, had a one-step process. They simply notified the Red Cross office in Kandahar directly. The Dutch did so immediately upon detaining an Afghan, and the British within 24 hours.

In other words, in the critical days after a detainee was first transferred to the Afghan Intelligence Service, nobody was able to monitor them. Canada had decided that Canadians would not monitor. The AHRC could not do so because they had very weak capacity and were not allowed into NDS jails. The Red Cross, in practice, could not do so either because we did not inform them until days, weeks or months after we had handed over the detainee.

During these crucial first days, what happened to our detainees? According to a number of reliable sources, they were tortured. The most common forms of torture were beatings, whipping with power cables, and the use of electricity. Also common was sleep deprivation, use of temperature extremes, use of knives and open flames, and sexual abuse, that is, rape. Torture might be limited to the first days or it could go on for months.

According to our information, the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar, it was standard operating procedure.

A fourth difference between us and the British and Dutch was unusually poor record-keeping. This had serious consequences. When the Red Cross was finally informed that we had transferred a detainee, not only had a lot of time passed, but the information that Canadian Forces had taken was so limited that the Red Cross was often even unable to locate our detainees.

Another consequence is that we ourselves did not know about the fate of a given detainee after transfer. Was he still in detention? Had he been released? Had he been transferred to a third party? Had he died under torture or been executed? We had no idea.

Once Canada did sign a new memorandum of understanding on May 3, 2007, we tried to go back to figure out what had happened to the large number of Afghans we had already transferred. However our records were so poor that the task was physically impossible.

I’ll offer a concrete example.

In June 2006, an Afghan woman came to the PRT in Kandahar. She had three young children with her, including an infant of six or eight months who was listless and visibly sick. The woman’s name was Fatima. It was, in my view, an act of considerable courage for her to pass through checkpoints to our heavily fortified compound to talk to a foreigner. Her husband, Bismila, was a taxi driver. One day he had gone to work but had never come home. Fatima came to the PRT to ask if Canada had detained him. I tried to answer her question but Canadian records were so hopeless that I was unable to.

The final difference, which is a very important one, is that Canada, unlike the U.K. and the Netherlands, cloaked our detainee practices in extreme secrecy. The Dutch government immediately informed the Dutch Parliament as soon as a detainee had been taken. The Dutch also provided their Parliament with extremely detailed reporting on every stage of detention and transfer and on the results of monitoring after transfer. The U.K. has also announced publicly the number of their detainees.

The Canadian Forces, by contrast, refuse to reveal even the number of detainees they have taken, claiming this would violate operational security.

When the Red Cross wanted to engage on detainee issues, for three months the Canadian Forces in Kandahar wouldn’t even take their phone calls. The same thing happened to the NATO ISAF command in Kabul, who had responsibilities to report detainee numbers to Brussels, but were told, “We know what you want, but we won’t tell you”.

Frankly, the operational security argument makes no sense to me. If we go into a village and take away three Afghans, everyone in the village knows exactly who we have taken. In practice, the information was being concealed not from the Taliban, but from NATO ISAF, the Red Cross and the Canadian public.

To recap, Canada took far more detainees than the British and Dutch, and unlike our NATO allies, we conducted no monitoring. Instead of hours, we took days, weeks or months to notify the Red Cross, which meant nobody else could monitor. We kept hopeless records and apparently to prevent any scrutiny, the Canadian Forces leadership concealed all this behind walls of secrecy.

As I learned more about our detainee practices, I came to the conclusion that they were contrary to Canada’s values, contrary to Canada’s interests, contrary to Canada’s official policies, and also contrary to international law, that is, they were un-Canadian, counterproductive and probably illegal.

Starting in May 2006, as we in the field became aware of the scope and severity of these problems, we began informing Ottawa about them. We used the means available to us, that is, written reports and verbal briefings, to alert senior officials in both DFAIT and the Canadian Forces about the grave deficiencies of our detainee practices and their grave consequences.

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It was our function, responsibility and obligation to provide such information and analysis. That was our job.

The concerns we expressed, I believe, reflect mainstream views and values in both DFAIT and the Canadian Forces. A number of my closest military colleagues in Kandahar were extremely troubled by what we were doing with detainees.

We on the ground in Kandahar, civilians and military, informed DFAIT and the senior military leadership about the notification problems with the Red Cross, the delays and inadequate information. We informed them about our very serious concerns about what was happening to detainees after transfer. We informed them about the lack of information being given to NATO.

In our annual human rights report at the end of 2006, we informed them about systemic problems of torture in Afghan jails. By March 2007, we were orally warning Ottawa that the NDS tortures people and if we don’t want our detainees tortured, we shouldn’t hand them to the NDS.

And on April 24th and 25th, 2007, as the detainee issue was becoming a political crisis in Ottawa, the embassy sent two reports that offered Ottawa a solution. To protect our detainees from being tortured, we should adopt the British and Dutch approach, that is, take responsibility for our own detainees, monitor them ourselves and establish a robust, aggressive and well-resourced monitoring mechanism that would guard our detainees from further risk of abuse.

Senior officials in DFAIT and the Canadian Forces did not welcome our reports or advice. At first, we were mostly ignored. However, by April 2007, we were receiving written messages from the senior Canadian government coordinator for Afghanistan to the effect that we should be quiet and do what we were told and there was a phone message from the DFAIT assistant deputy minister suggesting that in future we should not put things on paper but, instead, use the telephone.

Starting in May 2007, a new ambassador arrived. Immediately thereafter the paper trail on detainees was reduced. Written reporting from the field was restricted to a very limited circle of officials, which shrank further over time, and reports on detainees began sometimes to be censored with crucial information removed.

By summer 2007, internal censorship had spread to new areas. For example, we could no longer write that the security situation in Afghanistan was deteriorating even though everyone knew that it was. In terms of established DFAIT practice, all of these steps were extremely irregular.

By the end of April 2007, senior officials in Ottawa did accept the embassy’s recommendations from April 24th and 25th. On May 3rd, we signed a new MOU with the Afghan government that, for the first time, gave us the right to monitor. DFAIT accepted responsibility for that monitoring.

However, the other part of our advice was not implemented. That is, to monitor effectively, we needed new resources, at a minimum one full-time officer to conduct the monitoring, as well as to manage the relationships with NDS, NATO allies, human rights partners and other partners.

Instead, for the first five months of our new detainee regime, monitoring was done by a succession of officers, some of whom were in the field on short visits of only a couple of weeks. There was too little capacity and not enough continuity. The result was that, despite the new MOU, our detainees continued to be tortured after they were transferred. Perhaps I should say some of our detainees continued to be tortured after they were transferred.

It was only in October 2007 that DFAIT’s senior leadership finally sent a dedicated monitor to Kandahar. Within weeks, he found incontrovertible evidence of continued torture. An Afghan in NDS’ custody told him that he had been tortured, showed him the marks on his body, was also able to point to the instrument of torture which had been left under a chair in the corner of the room by his interrogator.

Up to that point, we had done what we could to monitor in Kandahar and also once in Kabul the existing pool of detainees, at least those we could locate. Canadian officials interviewed numerous Afghans who gave very credible allegations of torture and in several cases still had marks on their body, but they’d all been tortured before May 3rd when the new MOU came into force.

The late October 2007 case was, I believe, the first instance after May 3rd that we became aware of. However, because our monitoring regime was ineffectual, there may well have been other cases.

October 2007 was 17 months after the PRT first informed senior officials in the Canadian Forces and DFAIT about the very grave dangers facing our detainees after transfer. In other words, for a year and a half after they knew about the very high risk of torture, they continued to order military police in the field to hand our detainees to the NDS. As far as I know Canada, even today, continues to transfer detainees to the NDS in Kandahar.

In October 2007, I left Afghanistan and started a new job in Washington, D.C. In April 2009, I was subpoenaed by the Military Police Complaints Commission. In response, DFAIT, in collaboration with the Department of Justice, took three significant steps.

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First, they’ve made it very difficult for me to access legal counsel. This ongoing problem has still not been resolved.

Second, DFAIT and the Department of Justice, again working together, blocked my access to my own reports from Afghanistan. I was told, “We will decide which of your reports you require.” I was given none of them.

Third, government lawyers have threatened me under section 38 of the Canada Evidence Act. This had the effect of placing me in an impossible position. If I refuse to co-operate with the MPCC subpoena, I could be jailed for up to six months, but I did co-operate under section 38 I could be jailed for up to five years.

When this warning was sent, DFAIT and the Department of Justice, again acting together, were still withholding approval for legal counsel, depriving me of legal advice and protections.

I have a final section. I hope I’m not taking too long.

The final section, asking kind of a rhetorical question, even if Afghan detainees were being tortured, why should Canadians care?

I think there are five compelling reasons. First, our detainees were not what intelligence services would call “high-value targets”, such as IED bomb-makers, Al Qaeda terrorists or Taliban commanders. High-value targets would be detained under a completely different mechanism that involved special forces in targeted intelligence-driven operations.

The Afghans I’m discussing today were picked up by conventional forces during routine military operations, and on the basis typically not of intelligence but suspicion or unproven denunciation.

According to a very authoritative source, many of the Afghans we detained had no connection to the insurgency whatsoever. From an intelligence point of view, they had little or no value. Frankly, the NDS did not want them.

Some of these Afghans may have been foot soldiers or day fighters, but many were just local people, farmers, truck drivers, tailors, peasants, random human beings in the wrong place at the wrong time, young men in their fields and villages, who were completely innocent but were nevertheless rounded up.

In other words, we retained and handed over for severe torture a lot of innocent people.

The second reason Canadians should care is that seizing people and rendering them for torture is a very serious violation of international and Canadian law. Complicity in torture is a war crime. It is illegal and prosecutable.

Third, Canada has always been a powerful advocate of international law and human rights. That is a keystone of who we are as Canadians and what we have always stood for as a people and nation. If we disregard our core principles and values, we also lose our moral authority abroad. If we are complicit in the torture of Afghans in Kandahar, how can we credibly promote human rights in Tehran or Beijing?

Fourth, our actions were counter to our own stated policies. In April 2007, Prime Minister Stephen Harper said publicly that Canadian military officials do not send individuals off to be tortured. That was indeed our policy. But behind the military’s wall of secrecy, that unfortunately is exactly what we were doing.

Finally, even if all the Afghans we detained had been Taliban, it would still have been wrong to have them tortured. The Canadian military is a proud and professional organization, thoroughly trained in the rules of war and the correct treatment of prisoners.

If I may, I would like to quote the authoritative military manual on counter insurgency. It says that:

The abuse of detained persons is immoral, illegal and unprofessional. Torture and cruel, inhumane and degrading treatment is never a morally permissible option, even if lives depend on gaining information. The methods used by the military must reflect the nation’s commitment to human dignity and international humanitarian law.

When we look at our U.S. allies who work with us Kandahar, their top commander, Gen. David Petraeus listed 10 big ideas of counter insurgency. One is live your values. He said that whenever we place expediency above our values, we end up regretting it. In a counter insurgency, when you lose moral legitimacy, you lose the war.

Canada’s counter insurgency doctrine makes the same point. Persons not taking part in hostilities, including fighters who have been detained, must be treated humanely. Once local citizens have lost confidence in foreign military forces, their sympathies and supports will be transferred to the insurgents.

Counter insurgency is an argument to win the support of the locals. Every action, reaction or failure to act becomes part of the debate. In Kandahar, Canada needs to convince local people that we are better than the Taliban, that our values are superior, we will look after their interests and protect them.

In my judgment, some of our actions in Kandahar, including complicity in torture, turned some local people against us. Instead of winning hearts and minds, we caused Kandaharis to fear the foreigners. Canada’s detainee practices, in my view, alienated us from the population and strengthened the insurgency.

Thank you for your attention. Merci.

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The Chair: Thank you, Mr. Colvin.

We will start the opening round. It’s a seven minute round. We’ll start with the official opposition.

Hon. Bob Rae (Toronto Centre, Lib.): Thank you, Mr. Chair. Mr. Colvin, let me just say at the outset that, as the son of a foreign service officer, I am very proud of your performance. But I want to ask you to try and explain for me why you think it took 17 months for the Canadian government to realize that something had to change.

You sent an action memo in May of 2006 and in your affidavit to the military commission, you describe a number of memos and information that you provided. I wonder if you can now, in reflection, tell us why you think it took so long for the Canadian government to realize that the procedures had to change because something substantially had gone wrong.

Mr. Richard Colvin: That’s a good question, Mr. Rae. There are perhaps two parts to it. I think that at the beginning, in 2006—our first reports were in May and June of 2006—the Canadian effort in Afghanistan was a bit disorganized, a bit under-resourced and a little bit disjointed. The military was very strong in Kandahar, but CIDA and DFAIT were more strong in Kabul.

It seemed to me that the military wanted to run things the way they wanted them to be run. They weren’t very interested in civilian input and there was a resistance to outsiders, DFAIT people and others who were telling them things they didn’t want to hear. I think they had a system in mind that they had created and they wished to continue that system.

At the same time, DFAIT had not yet come to terms with the scope of the challenge in Afghanistan. It was not resourcing the effort sufficiently. There were very few of us in the field and at the senior policy levels… My feeling in 2006 was that there was no real champion. There was nobody you could turn to who would fight these kinds of issues. In terms of personalities, my impression talking to people was that General Hillier was quite a dominant figure. There was a reluctance to take him on, I think, at senior levels.

On these issues, I’m giving you kind of impressionistic answers, because it wasn’t always clear to us in Kandahar and Kabul what was actually happening at those senior levels. But the sense in 2006 was that, across a gamut of issues, there was not much response to problems.

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Hon. Bob Rae: Who told you not to discuss issues or not to keep sending bad news to Ottawa?

Mr. Richard Colvin: That was a bit later in 2007. That was the era of David Mulroney and Colleen Swords phoned to suggest not to put things on paper anymore. Before that, the tenor was set quite early. I think David Mulroney first came out in March of 2007, I believe after human rights support had been leaked and published in The Globe and Mail. I forget the sequence, but there was a redacted version that was released and then the full version was published.

In March of 2007, Mr. Mulroney suggested that we be very careful about what we put in our next human rights report. From that time on—I left in October 2007—there was a strong emphasis that was reinforced to us that things are best done on paper and that reporting, if it was sent, should be sent to a very limited number of people. Certain more sensitive items were removed before they were even sent.

Hon. Bob Rae: I’m going to share my time with Mr. Dosanjh.

The Chair: You have three minutes left, Mr. Dosanjh.

Hon. Ujjal Dosanjh: Who reinforced that message of secrecy?

Mr. Richard Colvin: It was Mr. Mulroney’s choice for ambassador, which was Arif Lalani.

Hon. Ujjal Dosanjh: Mr. Lalani reinforced that message of secrecy?

Mr. Richard Colvin: Yes. He was sort of managing it in the field.

Hon. Ujjal Dosanjh: To your knowledge, sir, would your memos and would these directives… Would your memos be known to Peter MacKay, to your knowledge?

Mr. Richard Colvin: I’m afraid I’m unable to answer that question.

Hon. Ujjal Dosanjh: Who else in the BCO or BMO… Other than Mulroney or Arif Lalani, who else do you know knew about the allegations of torture that you had been reporting about?

Mr. Richard Colvin: Well, on the military side, General Hillier and General Gauthier. On the civilian side, you had Mr. Mulroney, Margaret Bloodworth and Colleen Swords. Those were the sort of senior people who seemed to be handling this issue.

Hon. Ujjal Dosanjh: And remind me, Margaret Bloodworth was the special national security advisor to the Prime Minister?

Mr. Richard Colvin: That’s correct.

Hon. Ujjal Dosanjh: I have just one more question. Did you ever have a chance to visit Asa de la Khalif and did you know anything about what he was involved in?

Mr. Richard Colvin: Yes, yes I had lots of information on Mr. Khalif.

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Hon. Ujjal Dosanjh: Can you tell us?

Mr. Richard Colvin: I believe so. In this forum I’m protected from libel.

He was known to us very early on. Majunosix is an unusually bad actor on human rights issues. He was known to have had a dungeon in Gaznee, his previous province where he used to detain people for the money and some of them disappeared. He was known to be running a narcotics operation. He had a criminal gang. He had people killed who got in his way and then in Kandahar we found out that he had indeed set up a similar dungeon under his guest house. He acknowledged this when asked. He had sort of justifications for it, but he was known to personally torture people in that dungeon.

So on a range of issues, governance, security, human rights he was a serious problem and there were efforts made to have him replaced, but some of those efforts were not successful.

Hon. Ujjal Dosanjh: Were you ever present in meetings in Ottawa or even in Kabul or Kandahar where there were political people like the ministers or CEFCOM people who were listening to you and stopped taking notes? Do you think that was as a result of the directive that had been issued to not talk about torture?

Mr. Richard Colvin: I’m not sure, at least at first I didn’t get the sense there was–well maybe in the military there was a directive. I think it was seen as just a very sensitive issue and people didn’t really want to engage and there were certain things that they didn’t want to hear.

There was one episode that I found quite surprising. On March of 2007, I happened to be in Ottawa where I went to an inter-agency meeting on detainees. There were maybe 12 or 15 people in the room from a range of agencies and this was after the complaint from Amnesty and the B.C. Civil Liberties Association, so it was obvious this issue was going to be a serious problem and I felt that perhaps I hadn’t been clear enough in conveying to people how bad it was.

So I said “look, you know, the MDS tortures people, that’s what they do and if we don’t want our detainees tortured we shouldn’t give them to the MDS”. I was a bit taken aback to see the CEFCOM note taker stop writing. She didn’t write that down and then she put her pen down, so the official records of our meeting I think would not reflect those comments.

There are episodes like that that suggested that there was certain, some information which was seen as too hot a potato and no one wanted to be responsible for grasping that hot potato.

The Chair: Thank you, sir. We’re out of time.

Moving to Mr. Bachand, seven minutes, sir.

Mr. Claude Bachand: You will need your translation device unless you understand French perfectly.

[Français]

OK. Vous êtes capables? Très bien.

D’abord, monsieur Colvin, je veux vous féliciter de votre témoignage qui était, à mon point de vue, extrêmement courageux. C’est un témoignage qui est aussi extrêmement explosif parce que vous êtes en train de confirmer nos pires appréhensions sur la culture du secret, mais sur le fait qu’on avait, en tant que parlementaires, des forts doutes qu’il y avait de la torture en cours.

Je me demande si, dans un premier temps, vous avez suivi les débats à la Chambre des communes sur les questions invoquant la torture, et posées quotidiennement aux différents ministres qui répliquaient en disant qu’il n’y avait pas de torture.

Est-ce que vous suiviez ces débats?

M. Richard Colvin: Oui, je les ai suivis.

M. Claude Bachand: OK. Quand vous avez vu que le comité du suivi de l’Afghanistan allait faire sa propre enquête, est-ce que vous avez poussé un soupir de soulagement?

M. Richard Colvin: Pas de soulagement, mais j’ai pensé que ce serait un bon sujet pour une enquête parce qu’il me semblait que c’était très difficile pour nous, les cadres, de régler ces problèmes.

M. Claude Bachand: Vous, vous avez envoyé des rapports à Ottawa, à différents ministères. Pouvez-vous nous dire combien et à quels ministères vous avez envoyé des rapports?

M. Richard Colvin: J’ai une longue liste de rapports sur beaucoup de sujets, mais en ce qui concerne les détenus, c’est à peu près 17 ou 18.

M. Claude Bachand: 17 ou 18 rapports?

M. Richard Colvin: Oui, et je les ai envoyés, d’abord, à presque tout le monde: 75…

M. Claude Bachand: 75 personnes?

M. Richard Colvin: 75 individus ou organisations.

M. Claude Bachand: Soixante-quinze personnes.

M. Richard Colvin: Individus ou organisations. Dans le secteur militaire, à des directions plutôt qu’à des individus. Après mai 2007, la liste était beaucoup plus restreinte. En 2006, je pouvais les envoyer à n’importe qui.

M. Claude Bachand: D’accord. Aujourd’hui, les partis d’opposition ont posé des questions sur une directive du Conseil privé, le ministère du premier ministre, comme vous le savez, qui aurait demandé aux diplomates de ne révéler aucune information concernant la torture des prisonniers afghans. Étiez-vous au courant de ces allégations? Savez-vous si le Conseil privé a émis une directive à l’effet de ne rien transmettre à personne?

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M. Richard Colvin: Je n’ai pas exactement cela. Il y avait des pressions qui venaient de M. David Mulroney. À cette époque, il était le numéro deux aux Affaires étrangères. D’un autre côté, comme il était coordonnateur, il parlait comme si il était au Conseil privé. Pour ma part, cela venait de lui. Si lui-même a reçu des ordres, je ne suis pas au courant.

M. Claude Bachand: D’accord. Tout à l’heure, vous avez invoqué la culture du secret à l’intérieur des Forces canadiennes. N’avez-vous pas l’impression que cette culture du secret se propage également aux élus politiques qui sont responsables de la mission en Afghanistan?

M. Richard Colvin: Il y a de cela, je suis d’accord. Cependant, je ne sais pas exactement ce que disaient les militaires au plan politique. Je sais que, en ce qui concerne la situation sur la sécurité, ils faisaient des analyses trop optimistes qui ne reflétaient pas la situation réelle en Afghanistan. Il y avait des situations, comme celle de l’un de mes collègues ambassadeur qui a dit quelque chose de plus négatif et les militaires étaient fâchés contre lui. Il y avait des moments semblables. Toutefois, vous savez, je pense que cela se passe beaucoup chez les militaires. Il y a une mentalité de succès. Il faut gagner. Ils ont donc l’habitude de gonfler un peu leur succès.

M. Claude Bachand: D’accord. Pour eux, « gonfler le succès » cela voulait dire, si je comprends bien, essayer de camoufler le fait qu’il y avait des tortures et que c’était contre productif dans l’opinion publique canadienne. Votre lecture est: on gonfle les succès mais on cache le côté négatif au gouvernement. Est-ce exact?

M. Richard Colvin: Oui. Je pense que c’est comme cela.

M. Claude Bachand: Pensez-vous vraiment que le ministre de la Défense, quand il nous répond, moi, je n’ai pas vu les documents de M. Colvin, et que les autres ministres nous disent, non il n’y a absolument rien eu, qu’ils participent un peu à la culture du secret? Au fond, même s’il y avait des allégations, je pense qu’un ministre qui se respecte doit aller s’enquérir pour savoir s’il y en a vraiment. On a eu l’impression que les ministres du gouvernement s’en étaient lavé les mains. Partagez-vous un peu mon point de vue?

M. Richard Colvin: C’est très difficile pour moi de répondre à cette question. C’est fort possible que le général Hellier ait décidé de ne pas le dire au ministre. Cela fait un peu partie de la culture. J’ai travaillé un an auprès de mes collègues du ministère de la Défense nationale. Il y a beaucoup de gens très ouverts et normaux. Il y en a cependant d’autres qui se méfient des civils. À mon avis, la politique sur les détenus était un secret même pour le ministre. Pour moi, c’était une politique peu défendable.

M. Claude Bachand: C’était un secret pour le ministre. Quant à vous, vous avez voulu témoigner devant la Commission concerant les plaintes sur la police militaire. Ce ne sont pas les militaires qui vous ont empêché de témoigner.

M. Richard Colvin: C’est vrai.

M. Claude Bachand: Un geste a donc été posé par les politiciens pour continuer de camoufler ce que les militaires voulaient peut-être cacher. N’est-on pas dans un cercle vicieux où on veut vraiment tout cacher, on veut bâillonner les témoins et on veut faire fermer une commission. Je vous avoue que c’est en partie à cause de cela que nous sommes obligés de faire le travail que les politiciens sont en train d’empêcher qu’il soit fait ailleurs. Partagez-vous cet avis.

M. Richard Colvin: Je parle de la situation de 2007, quand les militaires n’en parlaient pas aux politiciens, mais maintenant je pense que les militaires n’essaient pas d’empêcher les témoins.

M. Claude Bachand: Merci pour votre courageux témoignage.

[English]

The Chair: Thank you, Mr. Bachand.

Mr. Hawn.

Mr. Laurie Hawn: Thank you, Mr. Chair, and thank you, Mr. Colvin, for coming today.

We’ve heard a lot of pretty bold assumptions being made across the floor–some I agreed with, some I’ve not necessarily agreed with–by yourself. Can I just ask you, why did you decide to appear today as an individual instead of as a public servant?

º  (1610)

Mr. Richard Colvin: I’m not aware I’m here as an individual and not as a public servant.

Mr. Laurie Hawn: Okay, that’s what it had said.

The Chair: He’s listed as an embassy person.

Mr. Laurie Hawn: On your affidavit, point number 64, you referred to first-hand information–

Mr. Richard Colvin: Yes.

Mr. Laurie Hawn: –and I want to ask you a really pointed question.

Did you ever see yourself, with your own eyes, torture, anybody being tortured, anybody taking actual action, or is all of your information second-hand or from other sources that you may or may not have trusted?

Mr. Richard Colvin: I saw first-hand people who had been tortured, testify that they had been tortured, and had marks of torture. I didn’t personally witness the acts of torture.

Mr. Laurie Hawn: Are those marks of torture, or not necessarily marks of torture, marks of physical distress, is it possible those were received through capture, through self-infliction, because these folks are instructed to carry out acts that will divert attention away from the truth?

Mr. Richard Colvin: We monitored four individuals in Kabul. One didn’t want to talk to us. Draw whatever conclusion you like. Of the other three, none of them, off the bat, mentioned torture. They all said things like, “Oh it’s good here, it’s nice here, things are fine”. And only when we pushed them, what happened in Kandahar, then they told us and the responses, each one was distinct. One got very quiet, just said he’d been hurt. One said, “It was nothing. Yes, they beat me a few days”, and there were marks that would’ve been a beating, and the other described, in a more pained way, what had happened to him and also had marks on his body.

So our sense–there were three of us who took part in this monitoring visit–were these were credible reports, and they also were consistent with the larger body of reporting on NDS practices in Kandahar.

Mr. Laurie Hawn: So they weren’t first-hand. They were basically second-hand from people within the prison system.

Mr. Richard Colvin: It was first-hand to the extent that we sat and talked to the people who had been tortured.

Mr. Laurie Hawn: And these are people, some of whom–we can argue or discuss how Taliban somebody is or what they’ve carried out–but these are people who have been engaged, and at least some of them probably killing Canadians, probably killing their own people?

Mr. Richard Colvin: There’s a complication here, which is, the people we wanted to monitor, we had a hard time finding them. So we had four people we monitored. We weren’t really sure who they were because the records weren’t that good.

Later we got better information and I think of the four, maybe only one was actually one of the four we were looking for, but I was very struck, you know, we were in the NDS jail and they bring these people in and then the left us. There was no guard, no one outside the door. We just sat there with these people and it was very relaxed, and then when we drove away, they were being escorted back to their cells, just walking hand in hand, laughing with their jailers. It was a very low security environment, so my feeling was, if they had been hardened Taliban, they were certainly endangering our lives leaving us there, but the atmosphere was they seemed confused people who weren’t being treated by their jailers as dangerous individuals.

Mr. Laurie Hawn: Is it fair to say the conditions in Afghan prisons are different than conditions in Canadian prisons?

Mr. Richard Colvin: Yes.

Mr. Laurie Hawn: And not in a positive way.

Mr. Richard Colvin: Yes, that’s very true.

Mr. Laurie Hawn: Have you ever visited a Canadian prison and asked Canadian prisoners how they feel about how things are going and how they’re being treated?

Mr. Richard Colvin: No, sir, I haven’t.

Mr. Laurie Hawn: I have, and generally the answer is, “Not good”, which is what you’d probably expect from prisoners anywhere.

Mr. Colvin, one of the recommendations coming out of Justice O’Connor’s inquiry into the Maher Arar affair was that consular officials posted to countries that have a reputation for abusing human rights should receive training on conducting interviews in prison settings in order to be able to make the best possible determination on whether torture or harsh treatment has occurred.

Now, you’re not a consular official, I recognize that, but have you ever received that kind of training?

Mr. Richard Colvin: No, none at all.

Mr. Laurie Hawn: Okay, thank you.

Are you familiar with what the intelligence and section 38 experts call the mosaic effect?

Mr. Richard Colvin: No.

Mr. Laurie Hawn: That’s information that by itself may be innocuous, but put together, pieces of a mosaic then form a picture that can be in fact of intelligence use to people that aren’t on your side.

Given that, do you think the government has a responsibility to be very conscious of that mosaic effect, and what may seem like a piece of information that is of no consequence may in fact be of consequence if somebody puts it together in a mosaic?

Mr. Richard Colvin: Yes. I would accept that the government has a duty to protect its people and its interests.

º  (1615)

Mr. Laurie Hawn: In your memos and emails and so on, a lot of them had a very, very long list of addressees, 76 on the “cc” line in several of them, and you were co-author on some of these memos. You were not the principal author. You were shown as a contributor on many of these.

Mr. Richard Colvin: Mostly I authored them, but sometimes other people were consulted on them. Generally, I signed them and sent them myself.

Mr. Laurie Hawn: Can I suggest to you that if I was trying to get somebody’s attention about something serious that I would direct it pretty carefully and precisely at the level that I thought should do something about it, even if that was a minister?

Mr. Richard Colvin: Sure. Usually there’d be on these reports four people on the “To” line, which were the kind of key divisions of DFAIT who I expected would reply, and then the other 72 would be on the “cc” line, just “For your information”. It could be anyone from our mission to NATO, to different DND departments.

Mr. Laurie Hawn: Do you have any idea how many reports like this are produced daily in Afghanistan, for example, on a mission of that size?

Mr. Richard Colvin: Yes, I have a pretty good sense.

Mr. Laurie Hawn: A lot.

Mr. Richard Colvin: At the time—this may be surprising and I was surprised—there were very few of us in the field. So the volume of reporting was actually quite modest. If you added the numbers, certainly the list would be longer. Maybe it would be on the order of twice as much on the civilian side. The military produces a lot of reporting. I’m sure there’s a great volume which comes out of the military side.

Mr. Laurie Hawn: In many of these reports there’s a wide variety of topics covered. It’s not just one topic. There’s not just a report on alleged torture, there’s a whole bunch of topics covered. Is it fair to say that somebody getting one of these, I’ll call them, omnibus communications, if something’s not standing out, might say it’s relatively routine?

Mr. Richard Colvin: The way I report and I think most of my colleagues report is usually you do—it does have quite a specific subject and the subject matter refers to—you would have some omnibus topics. There’s a meeting which dealt with a lot of issues, but the ones on detainees usually dealt only with detainees and were quite narrowly focused.

The Chair: You’re just about out of time here.

Mr. Laurie Hawn: That’s too bad.

What I really want to just point out is a lot or all of your evidence that you’re talking about, none of it is actually firsthand. It is coming second hand from prisoners who are trained to give false information. That’s what they do, that’s the way they’re trained. It’s come second or third hand from other colleagues, people who have received information, which was probably second hand to them as well. So there really is nothing here that is actually firsthand.

The Chair: Sorry, Laurie, we’re out of time. I apologize.

Mr. Dewar for seven minutes.

Mr. Paul Dewar (Ottawa Centre, NDP): Thank you and thank you to our witness. Thank you, Mr. Colvin, for appearing before us and finally shedding some light on a topic that many of us have tried to get more light shed.

I want to go to the question around Mr. Asadullah Khalid, the governor of Kandahar. You had grave concerns about him. You laid out why you had grave concerns. You passed your concerns on to whom about him?

Mr. Richard Colvin: Some of those were passed on orally and some in written reporting.

Mr. Paul Dewar: Up the chain of command, so to speak?

Mr. Richard Colvin: Yes.

Mr. Paul Dewar: So the same recipients of the emails that you’d sent out?

Mr. Richard Colvin: Yes. Not usually such a big distribution list, usually more tightly focused.

Mr. Paul Dewar: When did you first let it be known that you had concerns about him?

Mr. Richard Colvin: That’s a good question. I don’t have most of my reporting from the PRT, but I believe I wrote on it from the PRT. So that would have been probably June of 2006 and then certainly in the summer of 2006 and past.

Mr. Paul Dewar: So he stayed around for a little while after you had raised your concerns about him?

Mr. Richard Colvin: Yes. He was there when I arrived in April 2006 and he was still there when I left in October of 2007.

Mr. Paul Dewar: We know that Mr. Bernier had been present in the region when he was still the governor. We know that there were concerns around him at that time, when Mr. Bernier in fact raised concerns.

Can you share with the committee any feedback that you’d received from your memos? I’m thinking of one that was initialled, titled “Kandh0029”. Did you receive any feedback on that memo, specifically from the PCO?

º  (1620)

Mr. Richard Colvin:

I did get feedback on that one. It came from DFAIT. It doesn’t mention PCOs having been consulted, but there was SAFCOM and some other divisions in DND, and then three divisions in DFAIT.

Mr. Paul Dewar: Just so people will know. Generally speaking, what was in that memo?

Mr. Richard Colvin: That was 0029?

Mr. Paul Dewar: Yes.

Mr. Richard Colvin: That was about the notification issues with the Red Cross, the delays and the inadequate information. They were having a hard time finding our detainees. They were a little bit unhappy about that.

Mr. Paul Dewar: So you had told them that we have concerns about monitoring detainees, that there was this long period of time that had elapsed, and you had let them know that you were concerned about this. They basically said—

Mr. Richard Colvin: This one they did reply to. They said, of course, we respect the ICRC, they have an important function, there was just a mix-up, people were out of the country, and didn’t get the phone messages, and a little bit surprised at the tone of the message, and we’re going to fix it, and here’s the contact information, the contact person for the Red Cross to get these problems solved.

At the time I thought this would take care of the problem.

Mr. Paul Dewar: But it didn’t.

Mr. Richard Colvin: I think there was some ameliorations, but then when this issue was brought up again almost 10 months later, it seemed that the delays were still substantial, two weeks and more.

Mr. Paul Dewar: Just to capsulize, you’ve said to us that you were aware of, and there had been wide reporting, of torture that had been going on, and we’re talking about sexual abuse, we’re talking about the use of various instruments to torture prisoners after being handed over, that we had exponentially more prisoners being handed over than the Dutch or the British, and that we had no way of tracking them that you were confident in.

Is that correct?

Mr. Richard Colvin: Yes.

Mr. Paul Dewar: And you let people know that?

Mr. Richard Colvin: Yes.

Mr. Paul Dewar: People, such as Mr. Mulroney and Gen. Hillier knew that?

Mr. Richard Colvin: Yes.

Mr. Paul Dewar: How did you feel when no one did anything?

Mr. Richard Colvin: I should say, and I think I mentioned it at the beginning, this was one of maybe 15 issues I had. In the summer and fall of 2006, we were really caught up in Operation Medusa, trying to get forces down to replace the Canadians. There was a lot of activity just in security issues and narcotics issues, police reform. I was mostly busy with that.

I wasn’t really following this quite as closely as I should have. Then later in the fall or late summer we heard about problems, ISAF came and complained they weren’t getting information from the Canadian Forces. That was when I began to think there was maybe something more systemic going on.

Then around the time, early 2007, it really began to sink in to me that these problems, which I thought had been rectified, and I should probably have followed up and checked, had not, or they had been temporarily fixed and then seem to have recurred. The underlying problem of transfer and what happened after transfer had—

Mr. Paul Dewar: When we hear the government ministers say there was no evidence of torture during that period of time until they found out later and they said they changed everything, your evidence would be that there was notification that this torture was going on and that you had reported that?

Mr. Richard Colvin: Yes. There was kind of this key message of June 2, 2006. In this context, in a public context, I can’t really reveal the source or sources of that information, but it was an extremely credible source or sources that had expressed serious concern about treatment after transfer and gave some sort of adjectives describing the treatment and hinting at a lot of abuse.

That was sent June 2, 2006. It was in the context of a report on the prisons, the condition of the prisons. We were looking at renovating and infrastructure.

I was careful to flag at the beginning and at the end that the key issue or the key concern wasn’t the prison but what was happening to the detainees after they had been transferred.

Mr. Paul Dewar: I received a note from someone who has had experience in the field, and they said they’re still concerned about the transfer of detainees and the monitoring of prisoners. Do you share that concern, from what you know?

Mr. Richard Colvin: Yes, I’m a little bit removed from the mechanics and also the policies. From what I know of the NDS, my feeling was always that we shouldn’t be giving detainees to the Kandahar NDS. I’m not pointing the finger at them even. They are who they are. They’ve got job, they’re trying to do it. There’s a war going on in Kandahar. The Taliban are trying to kill them, are killing them, killing their families. It’s a very harsh, violent environment.

But knowing what we know about Kandahar NDS, I would say they’re not a suitable partner to be giving our detainees to, but it’s very hard to protect people. You need a very rigorous, aggressive monitoring system. I think we could probably create that, but we’d really have to let them know that the second anything happened, you’d be knocking on the door of President Karzai, if need be, and there would be consequences for them. You’d have to be in there, maybe not every day but certainly every week. You’d also need to have relationships with them where you could get access. There’s all kinds of caveats you’d have to meet first.

º  (1625)

Mr. Paul Dewar: Were you aware of problems around translation, in terms of handing over prisoners, that we didn’t have people who actually spoke the language and that there were some concerns about who we handed over?

The Chair: Short response, please, Mr. Colvin.

Mr. Richard Colvin: No, I wasn’t aware of those concerns.

The Chair: Thank you.

That ends the opening round. We get into a five minute round now. We’re just about to our hour here, so we’ll get started. The way this goes, of course, is the government, official opposition, government, Bloc, government, official opposition, government, NDP. Let’s see how far we get into the list here.

We start with the government.

Mrs. Cheryl Gallant (Renfrew—Nipissing—Pembroke, CPC): Thank you, Mr. Chairman, If I do have any time left, I’d like to share it with Mr. Hawn.

Through you, to the witness, insurgents are practised in the dissemination of false information and propaganda exercises. The el Qaeda handbook devotes an entire chapter on getting information by pretending to be someone you’re not. So while the story of Fatima was quite touching, it is really quite typical for Taliban to send a seemingly innocuous individual in to gather information on where their fighters are being held. In fact, this entire exercise of attempting to draw a link between the Canadian Forces and prisoner treatment without a shred of evidence is playing right into the hands of the insurgents, which is the departure of security forces so that the Taliban can retake Afghanistan to return it to training terrorists and forcing the people to grow opium to fund that illicit activity. So these allegations that are being discussed here today would not even hold up in a court of law. So the fanning of the flames of outrage over allegations, however unproven, are really having the desire effect on the Canadian people of wanting our troops to return even quicker.

Let’s go to something that the Taliban and insurgents are very good at. General Atkinson himself has stated in defence committee that:

First of all, they’re masters at information operations. Just because they’re sitting inside the middle of Afghanistan in the mountains in the desert and in an area where you could argue there is very little communication, there is cellular technology and they have access to the Internet through satellite. When there’s a story being printed in the Ottawa Citizen today, no matter what it is, it’s being read. If it’s on the BBC News, or from somewhere else, they’ve got it. They know how to take and plant false stories, how to push stories out and everything else. Their ability to react to things on the ground is something that’s very practised. They’ve used it against us. It’s something that we combat and work on. It’s called “information operations”. We do it to them and they do it to us.

That’s a quote from General Atkinson in defence committee.

Let’s go to the allegations that after the Canadian Forces transferred prisoners–

Canadian forces did not harm our prisoners. In fact, when the defence committee visited CAF, we saw Taliban prisoners who had been wounded and who were being treated with the same care that our very own soldiers, who they shot, were being treated. So we have to make this very clear, that our soldiers have had nothing to do with these allegations of torture.

First question: are insurgent prisoners given private cells? You were visiting the prisons. Are they put in their own cells, individually?

º  (1630)

Mr. Richard Colvin: If I could just on your previous points confirm that I never heard a hint of a Canadian who’s been involved in any of these things. My sense of the Canadian Forces is that they’re extremely professional, very well trained, and maybe one of the best militaries in the world. So I would share your high view of them.

Insurgent prisoners, I have to say that I’ve never seen a prisoner in the cell. The ones we were monitoring were brought out into a separate location and we were given a tour of the prison facility separately. But in terms of going inside a cell when prisoners were in the cell, I didn’t see that.

Mrs. Cheryl Gallant: So you don’t know if they’re held alone, or if they’re with the other insurgents, or with the regular criminals from the population?

Mr. Richard Colvin: The information I had is that they were sharing cells. There were overcrowding problems in nearly all these prisons. In Sarposa in Kandahar, the so-called political, which are the security prisoners, are kept quite separate from the general criminal population. At the NDS jail we went to in Kabul, kind of by definition, it’s only political, meaning security prisoners. The NDS aren’t holding common criminals there.

I think there are typically maybe four or five to a cell. That’s what the NDS acknowledged, too. They said that they had overcrowding problems and that they would like us to build a bigger facility for them, because it was quite old. It was a Soviet era prison. It was in poor condition.

The Chair: We ran a little bit over, there. Thank you for that.

Mrs. Cheryl Gallant: Five minutes?

The Chair: We’re out of time. The five minutes is gone.

Over to the official opposition.

Hon. Ujjal Dosanjh: Mr. Colvin, I’m going to ask you some very brief questions and I would like brief answers. As you know, we’re running against time, here.

You said that General Hillier knew about these allegations of torture. Can you tell me how and when?

Mr. Richard Colvin: My sense from early on is that Gauthier… I made sure to put him on the address list for these reports. He would have told General Hillier. In April 2007 I deliberately added General Hillier to a key report to put him by name, but I think the Gauthier-to-Hillier channel was a very reliable one.

Hon. Ujjal Dosanjh: You said that Margaret Bloodworth and Arif Lalani were the people who reinforced the issue about secrecy and not writing about these issues in the reports. When was that and in what circumstances?

Mr. Richard Colvin: I should say it was David Mulroney, rather than Margaret Bloodworth. That came quite early. I sent the first report after Mr. Lalani arrived. He took my 75 names and reduced them to five for the distribution list. There was some very sensitive information and important information, I thought, that was removed from that report as well. That set the pattern. He was kind of inconsistent that way. He would sometimes sign things off without any changes, but typically, reducing the distribution list and some things were considered too sensitive to send.

Hon. Ujjal Dosanjh: And when was that?

Mr. Richard Colvin: That began at the end of April 2007.

Hon. Ujjal Dosanjh: And when was Arif Lalani’s involvement in this?

Mr. Richard Colvin: He arrived at the end of April 2007, so…

Hon. Ujjal Dosanjh: You mentioned Margaret Bloodworth’s name earlier. In what context?

Mr. Richard Colvin: We knew that The Globe and Mail‘s reporting was coming in April. We had advance notice, so we had informed Ottawa—other people had to—and they developed a kind of detainee response. It was called a diplomatic contingency plan. That had been signed off by Margaret Bloodworth.

There were a couple of occasions where it seemed like the key decisions on detainees were being taken by Margaret Bloodworth and I think the discussions on Asadullah Khalid also went to Margaret Bloodworth.

Hon. Ujjal Dosanjh: I have one more question. I understand that there may have been what is called a decision memo prepared for Peter MacKay to apprise him of the situation regarding torture in Afghanistan. Were you ever able to see that memo?

Mr. Richard Colvin: I’m not even aware of that memo’s existence.

Hon. Ujjal Dosanjh: You’ve indicated that the circulation of the May 2006 and June 2006 reports was far and wide and that eventually, a year later, the circulation became narrower. Have you had any chance to talk to anyone from the upper echelons of the civil service in the government that would tell you that there were other people who were aware of these allegations of torture—DMs, ADMs—other than David Mulroney, Margaret Bloodworth or Arif Lalani?

Mr. Richard Colvin: Colleen Swords, certainly. She was key.

Hon. Ujjal Dosanjh: Colleen Swords. Other than that, anybody else?

Mr. Richard Colvin: The Privy Council Office was copying a lot of them, so the foreign and defence policy advisor, I suppose.

Hon. Ujjal Dosanjh: Did you ever talk to Margaret Bloodworth directly?

º  (1635)

Mr. Richard Colvin: I don’t remember if I talked to her on these issues. Not that I recall.

Hon. Ujjal Dosanjh: In terms of General Gauthier, you put him on the email list. Did you ever talk to him personally?

Mr. Richard Colvin: Yes, I talked to him quite a few times.

Hon. Ujjal Dosanjh: You talked about the allegations of torture and about your concerns?

Mr. Richard Colvin: No.

Hon. Ujjal Dosanjh: Why not?

Mr. Richard Colvin: He’s quite a difficult guy, General Gauthier—somewhat unpleasant to deal with. He was a tough guy to talk to. I preferred to use the official channels rather than try and engage him where he could simply just be rude for no particular reason. It was just a personal sort of way he had of dealing with people.

Maybe that was my experience, but I think he had that reputation. He didn’t really like dealing with the civilians. It was kind of his attitude that, “We’re in charge. It’s our province and we’re not interested in what you have to say”. That was not across the board, but at senior levels, with some officers, it was quite noticeable. I think General Gauthier, in my mind, was the kind of primary advocate of that approach.

Hon. Ujjal Dosanjh: Thank you.

The Chair: You’ve left your colleague 30 seconds.

Hon. Bob Rae: That’s been duly noted.

The Chair: And by giving that warning, you’re out of time, Keith. I’m sorry, we’ll have to come back to you.

Over to the government.

Mr. Laurie Hawn: I’ll start, Mr. Chair, and then I’ll hand it off to my colleague.

I just want to make clear what was just said over there. There was no action memo that you’re aware of to Minister MacKay.

Mr. Richard Colvin: I never heard of that.

Hon. Bob Rae: He didn’t say there wasn’t one. He said he wasn’t aware of one.

Mr. Laurie Hawn: Thank you very much.

I’m interested in what you did, and you talked a little bit about it. Other than tell somebody in a report, some of which you were the author, some of which you were co-author, some of which you were a contributor, many of which went to 76 addressees, many of which covered many topics, not just one, did you ever go to the Afghans and talk with them about what was perceived or what was alleged?

You did say you didn’t pay as much attention as you should have. There’s a war going on. You didn’t follow up on things, all of which is understandable because there’s a war going on. Likewise General Gauthier, for whatever anybody might say about getting along with each other, there’s a war going on.

Did you ever do anything to actually follow up on those things in theatre? I sense a bit of regret in your testimony that perhaps you should have done more. Did you ever follow up on any of that?

Mr. Richard Colvin: I did. It was a little bit later, so it was more early ’07.

Mr. Laurie Hawn: But not at the time. Is it fair to say that improvements were made, obviously, in mid-’07 with the improved agreement and that things have been better since? You weren’t there, I understand, but…

Mr. Richard Colvin: Yes. I mean, there’s still some issues that weren’t quite fixed. It was kind of a sense of acquiring knowledge, so it took me awhile to really understand the nature of our detainee system.

Mr. Laurie Hawn: It takes anybody time to acquire knowledge in that situation, I agree.

My colleague.

Hon. Jim Abbott (Kootenay—Columbia, CPC): Mr. Colvin, you’ll forgive me if I’m a little bit querulous, in that out of 5,000 Canadians who have travelled through there, at least in that period of time, you are the one single person who is coming forward with this information, so you’ll forgive me if I’m skeptical.

For example, you testified today that when you drove away after the interrogation of those four prisoners, you saw them laughing, holding hands and walking back with their captors to their cells. I find that quite astounding. I mean, would I be going back to a cell with the people who had just finished punishing me? I don’t understand that.

Mr. Richard Colvin: I think the answer is that these people had been detained in Kandahar. They had been, according to their information, allegations, tortured in Kandahar, but then had been transferred to Kabul. They seemed confused, we don’t know what we’re doing here, and yes, didn’t really seem to know what they were doing there either. Some of these people just get caught up and if they don’t have money to buy their way out, they’re just kind of stuck in the jail system. So the NDS I think also felt these were probably people who maybe shouldn’t have been detained in the first place. That was my conclusion.

The people we met just seemed confused and didn’t know why they were there, and their jailers treated them the same way.

Hon. Jim Abbott: I apologize that I have trouble with the credibility of that.

Are you fluent in Pashtun?

Mr. Richard Colvin: No, I don’t speak any Pashtun.

Hon. Jim Abbott: So then the testimony that you received from these prisoners was through an interpreter–

Mr. Richard Colvin: That’s correct.

Hon. Jim Abbott: –who may or may not have had his or her own motive for what they were interpreting for you.

Mr. Richard Colvin: We used someone from the embassy, who had actually been jailed in that same jail under the Taliban. The testimony, there was a lot of body language and the body language accorded with the interpretation, and we’ve used this guy before. He’s a reliable interpreter.

º  (1640)

Hon. Jim Abbott: Can you see how I could arrive at a conclusion that you’re an honourable gentleman who came to a conclusion that may not be correct? Thank you.

The Chair: Okay thank you. There’s just one minute left, but maybe I’ll use it. We’re at a crossroads here, and Mr. Colvin, I know that it was previously indicated that we had two witnesses and you could probably assume an hour each, but we’re over time on you already. In order to get to the second round completely, to be fair to everybody, it’ll take another 25 minutes.

Mr. Tinsley is in the building and waiting, but do we have agreement to do that?

Mr. Laurie Hawn: We have bells at 5:30, don’t we?

The Chair: Bells at 5:30.

Mr. Paul Dewar: Chair, if I may, Mr. Tinsley is actually here in Ottawa, is that correct? He’s situated here in Ottawa?

The Chair: He’s in the building waiting.

Mr. Paul Dewar: No, but I mean he works here.

The Chair: Yes.

Mr. Paul Dewar: So I would move that we continue with Mr. Colvin, as he is in Washington and I would like to continue with him for at least the next 25–

The Chair: It would take 25 minutes. I don’t even know if Mr. Colvin’s available. I haven’t asked him that yet.

Mr. Richard Colvin: I’m at your disposal.

The Chair: So you’re fine.

Mr. Laurie Hawn: Mr. Chair, we have Mr. Tinsley here now. That was the agreement that was reached by the steering committee, by this committee. I suggest we follow on with the plan that all agreed to.

The Chair: We’re over time on this session already.

Mr. Paul Dewar: Mr. Chair, he’s referenced steering and we usually don’t, but he has. We said that we’d use as much time as we needed for Mr. Colvin.

Mr. Laurie Hawn: Up to an hour and a half is what we said.

Mr. Paul Dewar: Well, the committee gets to decide that. I’ll stop talking and we can continue on with our witness.

The Chair: We will proceed, then, with five minutes for the Bloc.

[Français]

M. Claude Bachand: D’abord, monsieur Colvin, on a posé des questions il y a quelques semaines sur le règlement de la facture de votre avocate, qui est avec vous — elle a l’air d’être une gentille demoiselle qui ne doit pas donner bénévolement son temps — est-ce que le gouvernement s’est finalement rendu à nos explications et à notre questionnement à l’effet de payer madame? A-t-elle été payée pour les frais encourus jusqu’à maintenant avec vous?

M. Richard Colvin: Elle n’a pas encore été payée mais il y a un accord sur le fait qu’elle sera payée. Les problèmes qui restent sont qu’ils essayent toujours de limiter ses heures de travail, ils donnent de l’argent en petites parties. Il faut un peu les persuader et se battre pour qu’ils approuvent ses paiements.

M. Claude Bachand: Donc, je ne peux pas m’empêcher de penser que non seulement les soldats n’étaient pas coopératifs pour retransmettre l’information aux élus, mais ces derniers ne sont pas coopératifs parce qu’ils veulent vous empêcher de témoigner. Ils sont en train de négocier au compte-gouttes les frais de votre avocate dans l’intention, probablement, de vous faire taire ou vous faire faire un faux pas pour qu’on puisse après cela vous discréditer. Mon interprétation peut-elle être valable selon vous?

M. Richard Colvin: Je pense que oui.

M. Claude Bachand: Maintenant, pouvez-vous nous dire, monsieur Colvin, si vous avez eu des mises en demeure du gouvernement pour vous empêcher de parler, non seulement à la Commission d’examen des plaintes concernant la police militaire, mais ailleurs, comme aux médias, aux députés ou ici aujourd’hui. Avez-vous eu des mises en demeure vous interdisant de faire cela?

M. Richard Colvin: Oui, en effet, la section 23 pour la commission. On m’a dit aussi que la section 38 établissait les règles ici au comité.

M. Claude Bachand: D’ailleurs, pour nous, c’était important d’amener l’article 38 de la Loi sur la preuve au Canada. On a eu des discussions avec le général Watkin disant qu’il pouvait avoir des recours légaux ou revoir la légalité de la chose, mais devant un comité comme celui-ci il y a une certaine protection.

Je tiens à dire, monsieur le président, aux gens qui nous écoutent, que c’est peut-être plus facile pour le gouvernement de fermer une commission et de l’empêcher de procéder que d’empêcher de procéder un comité parlementaire. C’est pour cela qu’on est obligé de le faire aujourd’hui, alors on est content de pouvoir aller enfin au fond des choses.

Je voudrais juste ajouter que je suis persuadé, je veux que vous me confirmiez cela, que les soldats Canadiens n’ont pas torturé les prisonniers Afghans. Vous êtes un spécialiste du droit international, vous êtes diplomate, y a-t-il un danger pour les soldats du fait qu’ils transfèrent des prisonniers à des gens qui sont fortement soupçonnés de torture, que c’est en bris de la convention de Genève? Votre interprétation est-elle la même que la mienne?

º  (1645)

M. Richard Colvin: Oui, c’est la même.

M. Claude Bachand: C’est la même. Donc, le gouvernement canadien et les soldats Canadiens peuvent intenter des poursuites contre eux en remettant des prisonniers à des autorités sachant qu’elles pratiqueraient de la torture sur eux. Est-ce votre lecture aussi?

M. Richard Colvin: Oui.

M. Claude Bachand: On dit qu’il y a quand-même 5 000 personnes ou plus qui sont allées en Afghanistan, et il n’y a que vous qui avez soulevé cela. À votre connaissance et connaissant la structure militaire, les soldats sont-ils libres de parler lorsqu’ils ont reçu l’ordre de ne pas parler?

M. Richard Colvin: De parler à qui?

M. Claude Bachand: De parler à des médias ou à des gens. J’ai vu des tortures ou je crois qu’ils sont torturés, et quand ils ont reçu l’ordre de ne pas en parler, pensez-vous qu’ils peuvent le faire quand même?

M. Richard Colvin: Je pense que c’est difficile pour eux, car les informations passent comme cela.

M. Claude Bachand: La structure , la hiérarchie.

M. Richard Colvin: La structure est très rigide. Je pourrais écrire n’importe quoi et l’envoyer. Eux, ils n’ont pas le droit de faire cela. Alors il y a un processus pour limiter l’information transmise aux supérieurs militaires.

M. Claude Bachand: Êtes-vous le seul à avoir dénoncer les allégations de mauvais traitements ou si d’autres diplomates de votre entourage se sont dits qu’ils ne pouvaient se taire là-dessus et qu’ils transmettront des rapports? D’autres que vous ont-ils fait des rapports?

M. Richard Colvin: Parmi les Canadiens?

M. Claude Bachand: Oui.

[English]

The Chair: A short response, please.

[Français]

M. Richard Colvin: C’est surtout moi et des collègues.

M. Claude Bachand: Avec des collègues. Combien de collègues?

M. Richard Colvin: Très peu. Environ quatre.

M. Claude Bachand: Quatre collègues, qui endossaient vos rapports?

[English]

The Chair: We’re out of time.

How this is going to finish up, then, is over to the government, back to the official opposition, government, NDP.

Mr. Laurie Hawn: I’m going to start and then hand off to my colleague, Peter.

Mr. Colvin, are you a specialist in international law?

Mr. Richard Colvin: No, I’m not, sir.

Mr. Laurie Hawn: Thank you. So contrary to what Mr. Bachand said.

When did you first visit the prison? Do you remember the date?

Mr. Richard Colvin: Yes, it was May 13th or 16th.

Mr. Laurie Hawn: Of?

Mr. Richard Colvin: Of 2006.

Mr. Laurie Hawn: How long had you been sending reports on conditions in prisons prior to that?

Mr. Richard Colvin: No, I’d never done that.

Mr. Laurie Hawn: Fair enough.

I’ll hand off to Mr. Goldring.

Mr. Peter Goldring (Edmonton East, CPC): Thank you very much.

Thank you, Mr. Chair.

Mr. Colvin, you had mentioned or had said that you had no problem accessing the prisoners or gaining access to the prison to speak to the prisoners. When I look at the transfer of detainee agreement, the one that was May 2007—I’ll just repeat some of this:

Representatives of the Afghanistan Independent Human Rights Commission and Canadian government personnel, including representatives of the Canadian embassy in Kabul and others in power to represent the government of Canada, will have full and unrestricted access to any persons transferred by the Canadian Forces to Afghan authorities while such persons are in custody. In addition to the International Committee and the Red Cross, relevant human rights institutions with the United Nations system will be allowed access to visit such persons as well.

That’s very plain as to having ready access by many groups and organizations to the prisoners. I find it incredulous, too, that with all of those facilities having access to the prisoners that some information hasn’t come through in the reporting.

When I look at your comments here, too, your reports on it that you’ve been sending in, it talks of risk of torture or actual torture, but here we’ve just had the discussion that what it might possibly be—as you say, it might not have been torture, it might have been other forms of injury. The suggestion was we don’t know whether they were in solitary confinement or in individual cells. If they’re in the population as a whole, certainly there are hazards to that, too, from other prisoners.

All the way through in here you talk about firsthand reports of torture. Yet through the discussion here it’s really like second or third hand reports of torture. You have said yourself that you haven’t specifically seen anybody being tortured, but you see the marks or signs that you believe might be torture. But then again they might not.

With all of these differences of opinions on here, I still have to go back to the basis that I find it difficult to understand why you as being the only person who can see through all of this and no other organization has come down through with like comments.

º  (1650)

Mr. Richard Colvin: Most of my information was from other institutions, who were the experts. Without naming names, there were some human rights organizations, but also some intelligence services we would meet with and discuss these questions with them. That’s kind of how we do our job as diplomats. So the trick is to find the authoritative, most credible organizations and then find out what information they have and then you can develop a picture of events.

The one monitoring visit I made in Kabul is really just, for me, a small kind of anecdotal reinforcement of this bigger pattern.

Mr. Peter Goldring: In your report here, as I said, it’s mentioning treatment of detainees, treatment of detainees, and procedure, procedure, procedure, and when you have the opportunity face up to speak to the general directly you don’t mention it. So in spite of having the relationship difficulty being able to communicate I would think that would be the one common time that you could speak up right then and there, and if you have these great concerns for it I would have thought that you would.

Mr. Richard Colvin: The principle way we’re supposed to inform always is via these kind of more official channels rather than to a particular individual.

Mr. Peter Goldring: Face-to-face.

Mr. Richard Colvin: Yes relations with General Gauthier unfortunately were not very good. If it had been different with other generals, for example General Grant a very easy relationship, and certainly with him I would have felt no compunction with raising it. That was just kind of personality issue. Primarily the other dysfunct with the verbal oral report is there’s no real rights on paper trail, and ultimately it’s the whole system with many parts. I wrote the reports to try and reach different elements of the whole system.

Mr. Peter Goldring: Well you can see where our concerns are then.

The Chair: Thank you, Mr. Goldring.

Mr. Martin.

Hon. Keith Martin (Member of Panel of Chairs, Lib.): Thank you, Mr. Chair.

I actually used to be a guard and a physician in a jail and I never saw anybody tortured in a Canadian jail, nor any allegations, but that’s another matter.

Mr. Colvin, you are a credit to our foreign service and thank you very much for being here, and your argued testimony. Ministers often come through Afghanistan. Did you have a chance to meet any ministers of the Crown and actually express what you have expressed here to them?

Mr. Richard Colvin: Yes I’ve met several ministers, but I did not raise these issues with them.

Hon. Keith Martin: Did you hear anybody else raising these issues to them in your presence?

Mr. Richard Colvin: No not in the meetings I was at.

Hon. Keith Martin: When the names were reduced from your list from 75 to 5 do you remember what those five names were?

Mr. Richard Colvin: Sure I have it here.

An Afghanistan officer at PCO, and then two addresses in Kandahar Air Field , and a Prt.

Hon. Keith Martin: Thank you.

Did you ask why this was done, why they were reduced?

Mr. Richard Colvin: It was very sensitive and they didn’t want to go in to a wide circle of people. Over time I myself was removed from the distribution list for these messages.

Hon. Keith Martin: You mentioned also that the government lawyers had threatened you. Can you elaborate on that?

Mr. Richard Colvin: This is I guess my interpretation. I had been subpoenaed to the MPCC and at first heard government lawyers tell me you are feel to go for this pre-hearing interview, there’s no problem, it’s entirely up to you. Would you like to . So I said to them fine I’ll go on September 1 and three days later they hit me with this section 38 thing where if I did go I could be charged under section 38 and possibly jailed up to five years for meeting kind of legal obligation to assist the MPCC. I guess I interpreted that as a threat.

Hon. Keith Martin: But it put you in an untenable situation.

Mr. Richard Colvin: Yes I felt so.

º  (1655)

Hon. Keith Martin: To go you would be penalized, to not go you’d also be penalized.

Mr. Richard Colvin: Yes that’s correct.

Hon. Keith Martin: Was this information expressed to the Minister of Defence at all in any of your memos or missives that this is what had happened to you with respect to the untenable situation you were put in. ?

Mr. Richard Colvin: No I’ve been writing to my deputy minister Mr. Len Edwards with some of my concerns about it, and to the Department of Justice Mr. La Fontaine, he’s a very key person.

Hon. Keith Martin: Thank you very much.

The Chair: Thank you, Keith.

Over to the government then and finish up with the NDP.

Mr. Laurie Hawn: Thank you, Mr. Chair.

Mr. Colvin, you’re an experienced diplomat. Experienced diplomats get to deal with difficult people all the time. So I’m a little concerned about why you wouldn’t, regardless of personality clashes, have been more forceful with General Gauthier, and also if you had met a number of ministers at various times over there why didn’t you raise the issue with them? You said you didn’t, why not?

Mr. Richard Colvin: That’s a good question. I didn’t copy ministers typically on my reports either. Generally when a minister comes in your job is to make sure they have a nice trip, it’s a tough environment. I would go to meetings and write reports on the meetings, but I wouldn’t really insert myself into their lives or their business. It would be a bit inappropriate I think to come and ruin a minister’s visit by saying “hey do you know people are getting tortured with electricity”.

Mr. Laurie Hawn: Well, you know what, I’d suggest that the minister is there to do a job and if I was the minister and something was that serious or you were that serious about it, then I would expect you to come and tell me about it.

So I have to cast some incredulity on that.

Give it to Mr. Abbott.

Hon. Jim Abbott: The four transferees that you interviewed, were they captured by Canadians?

Mr. Richard Colvin: I don’t know.

Hon. Jim Abbott: You don’t know. Don’t you think that’s important?

Mr. Richard Colvin: Oh, it’s very important, yes.

Hon. Jim Abbott: Okay, hang on a second. You’re telling us that you were interviewing four detainees who had signs of abuse and you don’t even know if they were detainees who had been put into the system by Canadians, and much less do you know that they received those signs of abuse through torture, and we’re supposed to take you as being credible.

That’s amazing, sir. That’s absolutely amazing. I wonder if you’ve arrived at the conclusion that you wanted to arrive at. You said earlier, “a pointed tool of torture that was left in the corner under the chair by an interrogator”. Now that could be taken as evidence of torture or a tool that might have been used for self abuse or it could have been put there just for your benefit.

I’m sorry. This is really quite incredible, sir.

Mr. Richard Colvin: The October one, I should say, I wasn’t there for that so I just heard about this monitoring visit. The problem we have in Kabul was the information we were given was so hopeless. We went to the prison and we said, “We’re looking for these four people. These are the names and they were all taken in Kandahar. Could you produce these people?”.

So they produced people who had names that were more or less similar and we tried to figure if these were the people we were looking for. We settled on four who more or less matched the criteria we’d been given. Later, we got much better information, a full package including photographs, the proper names, and when I looked at that, I concluded that of the four we had met, only one was the right person. But this was really a function of the record-keeping. It was very poor, very, very poor.

Hon. Jim Abbott: But with greatest respect, sir, it’s not a function of the record-keeping, it’s a function of the credibility of your testimony. Those three people who you said were abused in prison as a result of being turned over by Canadians, you have just told us were not turned over by Canadians. What else can I say?

Mr. Richard Colvin: Yes, you’re probably right. Maybe one of them was.

The monitoring visit, I didn’t really want to do the monitoring visit. It’s not really my job and we didn’t have anyone else, but the reporting I had sent on detainees which went back to June 2006 wasn’t based on first-hand interviews. It was based on meeting with organizations who in our judgment were credible, did have access, and had reliable information. So the concerns were drawn from those organizations of which there were several. I can’t really name names in this forum, I’m afraid.

The Chair: You have one minute left.

Mr. Laurie Hawn: Thank you, Chair. I have to just follow along a little bit with Mr. Abbott and go back to everything we’ve heard today. There have been a lot of assumptions, a lot of allegations, nothing first-hand. It’s all second-hand. You had opportunities to speak to people in authority if you were concerned enough about something, as you have expressed, and we’re all concerned about those kinds of activities if they’re going on. You didn’t take the opportunity to do that. All of your information is at very best second-hand, so I really do have to question, as my colleague has done, whether this is really credible testimony in the direction that people want to take this.

You can comment on that or not but I’m a little bit skeptical.

»  (1700)

The Chair: Would you like to respond? That’s more of a statement than a question.

Mr. Dewar.

Mr. Paul Dewar: Thank you, Chair, and thanks again to our guest. I want to come back to the procedure that was in place. You were saying that we didn’t have people on the ground to monitor so when we hear questions about that from the other side…your whole point was that we didn’t have people to actually monitor. However, you also gave evidence to say that both the British and the Dutch had a very accountable process. Within 24 hours with the British, is that correct?

Mr. Richard Colvin: Yes.

Mr. Paul Dewar: What did you hear from the British and the Dutch? Did you have any communication with them about the behaviour, about what was happening in the prisons about torture? Did they reference torture to you?

Mr. Richard Colvin: Yes, if I can generalize it, I met regularly with our NATO allies, a number of countries, and we discussed those kinds of issues and I got information from them as well.

Mr. Paul Dewar: So they referenced their concerns about handing over detainees and what would happen to them when they were handed over.

Mr. Richard Colvin: Yes, that’s correct.

Mr. Paul Dewar: When we look at the process that was put in place, one of the concerns was to monitor afterwards, when prisoners were released. Was that a concern you had during the time you were there? In other words, when prisoners were sent out, were there any monitoring processes in terms of where they went?

Mr. Richard Colvin: When they were handed over, or after they were released?

Mr. Paul Dewar: After they were released from the prison.

Mr. Richard Colvin: No. We didn’t even know–usually–what had happened to them, whether they were in the prison or had been released. We didn’t follow up with them at all once we handed them over–so no information at all on that.

Mr. Paul Dewar: You said in your testimony that there were concerns around…. Well, you listed a number of things, referencing torture in various manners. In fact, in one of the documents you interviewed someone, and he talked about how they were treated. You asked him. And when we asked about this person’s treatment, he had said that he was hit on the feet with big wire and forced to stand for days. He had marks on his back and ankles, etc. You noted that there was a red mark on the back of his ankle. And it basically said that’s how NDS interrogated him.

Was this a typical way of treating prisoners?

Mr. Richard Colvin: Yes, I believe so.

Mr. Paul Dewar: Would you consider that to be a violation of the Geneva Convention?

Mr. Richard Colvin: Yes, I would.

Mr. Paul Dewar: Would you be able to share with the committee any documents you have with you so that we can reference them to do our work?

Mr. Richard Colvin: I would be pleased to. I’m concerned about what the consequences might be if I were to do that.

Mr. Paul Dewar: Can I leave that to your counsel to go over and to decide whether to share with the committee?

Ms. Lori Bokenfohr (Legal Counsel, As an Individual): Right now, or could we have a…?

Mr. Paul Dewar: No. We’re here for a long time. We can give it to you, and you can decide and send it in to us.

Mr. Richard Colvin: I was told just this week that there are new documents available in a redacted form. I haven’t had a chance to look at it yet, but I was given a diskette yesterday.

Mr. Paul Dewar: Any information you have to share with this committee for it to do its work would be helpful.

Mr. Richard Colvin: Certainly.

Mr. Paul Dewar: Thank you.

The Chair: Thank you, Mr. Dewar.

Mr. Colvin and Ms. Bokenfohr, thank you very much for your time.

I apologize for the temperature in the room. There’s been some trouble with the plant system here on the Hill. We don’t usually bring witnesses in and sweat it out of them as we did today. I apologize for that.

Do you have anything to say in conclusion?

Mr. Richard Colvin: I appreciate your having organized this. Thank you for inviting me and for treating me fairly. It was nice to meet all of you.

Thank you.

The Chair: Good. Thank you very much.

We’re going to suspend for one minute while we bring in our next witness.

Thank you, sir.

»


»

»  (1705)

The Chair: If we could reconvene, please. We’re running out of time, and Mr. Tinsley, I apologize for that to start with. But if we could just get everybody back to the table, please.

We’re going to start, sir, whether some of them are ready or not. I first of all want to apologize on behalf of the committee for keeping you waiting and carrying over. We have bells at 5.30.

Do you have a prepared statement?

Mr. Peter A. Tinsley (Chair, Military Police Complaints Commission): Yes, I do, Mr. Chair.

The Chair: Do you have any idea how long it will take us?

Mr. Peter A. Tinsley: No more than nine or ten minutes.

The Chair: Fine. We’ll see how it works after that for you, but, sir, just to make it official here you are the Chair of the Military Police Complaints Commission and you are here at the request of the committee and we appreciate you being here.

We will turn the floor over to you to make your opening comments, and we’ll see how much time we have for questions after that, sir.

Thanks for being here.

»  (1710)

Mr. Peter A. Tinsley: Mr. Chairman and members of Parliament’s Special Committee on Afghanistan, good afternoon. I’m pleased to respond to your invitation and to assist as I may be able to the committee in its work pursuant to its motions of October 28, 2009 concerning the treatment of detainees of the Canadian Forces in Afghanistan.

As you are aware, the Military Police Complaints Commission has been engaged in the investigation of complaints concerning the treatment of detainees by the military police of the Canadian Forces since January 2007 when the first such complaint was received from Dr. Amir Attaran. Through the clerk, I have provided a chronology and I hope that you’ve received it, a chronology of the history of the commission and more importantly these complaints and the decisions related thereto. I hope they may be helpful to you.

The first complaint filed by Dr. Attaran was resolved through a public interest investigation and the file was very recently closed following the reduction of the redactions to the original report and the re-release of the report. A copy of that re-released version may be found at tab E of the additional materials provided to you this afternoon.

The other complaints also received in early 2007 from Amnesty International Canada and the British Columbia Civil Liberties Association have not been resolved and remain either before the commission pending an adjournment of the commission’s inquiry by public interest hearing process or before the Federal Court of Appeal pending a decision on the commission’s application for leave to appeal, a decision of the Federal Court. Again I’ve supplied the committee clerk with a chronology and the commission’s decisions in respect of these matters which I hope may assist you in understanding my very brief remarks.

It is because of these unresolved complaints that I believe that I’ve been invited here to speak to you and answer your questions. It’s also because of the state of these complaints still as said in the process of the commission’s inquiry or before the Federal Court that I may have to restrained in what I may say in response to your questions. That is restrained out of respect for and to maintain the integrity of these processes. I am currently presiding over a panel conducting hearings into the complaint that remains before the commission and have a duty to act fairly in respect of the parties including a requirement to speak about matters specifically before the commission only through the decisions of the commissions. I hope that you will understand.

Given the constraints upon me, perhaps I can briefly and appropriately elucidate the present situation of the commission and its inquiry process by recapping and paraphrasing some concluding remarks that I’ve made previously following delivery of the commission’s decision to adjourn on October 14th this year. The matter of the treatment of detainees by the Canadian Forces in Afghanistan by Canada’s military police has particularly given a notorious experience of some other nations in similar situations in Iraq and Afghanistan and our own recent history in Somalia attracted much public attention across our country and internationally. There is clearly an expectation of answers in respect of the complaints filed with the commission.

As I’ve said before, the concerns raised by the complaints are serious in the interests of what have been referred to as the victims or potential victims of the treatment in question. They also potentially call into question the honour and professionalism of Canada’s military police in discharging their solemn duty to uphold the rule of law within the Canadian Forces even in the midst of Canada’s most substantial military engagement in half a century.

As an agency specifically created by Parliament in the ’90s to provide greater accountability following the tragic experience in Somalia where in the outstanding efforts of so many of the Canadian Forces were nationally and internationally stained by a few and more particularly by a lack of transparency regarding the events in question. The Military Police Complaints Commission very much regrets the delays occasion to its inquiry process in these matters and to leave the public record as it is at this time replete with more questions than answers. When I speak of the public record, I am not to be sure speaking of the commission’s evidentiary record in respect of its hearing.

As of this moment, very little “evidence” is actually before the commission in the context of the formal proceedings of the public interest hearing. Nonetheless over the past two and a half years of the preceding public interest investigation and other inquiries preliminary to these hearings, certain information has come to the attention of the commission that moved the commission to convene its hearing process and underscore the importance of the inquiry.

»  (1715)

Some of that information is indeed already in the public domain and much published.

The danger and difficulty of all of this, what I will refer to as “information”, is that it is incomplete and/or untested in a procedurally fair and thorough manner, respecting the rights of those involved. Accordingly, it cannot properly be referred to as a proper and complete evidentiary base of fact. As such, we, the commission and I, cannot draw any conclusions or implications from such information and I have cautioned the public to adopt similar restraint.

The commission also appreciates the reality that by inquiring into the conduct of military police in respect of these allegations, facts may well come to light which reflect on the actions and decisions of those outside the military police. But as has been said repeatedly, that was never the purpose or focus of this inquiry, only a possible and necessary contextual consequence exacerbated by public attention.

However, for over a year the commission sought to address this complaint through an investigation without hearings, and for that matter, without challenge to its jurisdiction. But it was compelled to resort to the more formal and public route of a hearing which was the only means available to compel production of information, or so the commission thought.

Agencies for the independent oversight of the police, like all parts of our administrative law structure, are intended to serve the people or community on behalf of the government that created them. That is, in the police oversight context in maintaining public confidence in the police, unquestionably what should be a priority for any democratic government today. The norms of independent oversight of the police across Canada, and indeed such international norms as do exist, dictate that such oversight agencies be created in statute form with the purpose of providing independence, both real and perceived, from the government of the day, of which the police are an agent.

This commission was so created in order to ensure its credibility and effectiveness in fostering public confidence in military policing, which effectively means the caring and enforcement of the laws and standards that Canadians expect within their military, including from the chain of command at home and abroad. Unfortunately, the fallibility of this arrangement has been exposed in the matter of the detainee complaints when quite out of step with the normal situation wherein the principle challenge to police oversight is what has been often referred to as “the blue wall”. The government becomes the obstacle in the oversight piece, as opposed to the police themselves.

In such circumstances, notwithstanding establishment empowerment by Parliament, experience to date in this matter has demonstrated that when the government does not cooperate, there is no equality of arms. By this martial analogy, which is also a legal one, I do not mean to suggest that the relationship between the government of the day and administrative tribunals is properly adversarial in nature; quite the contrary, it is not. Indeed, they form part of the executive branch.

However, administrative tribunals such as, or including police oversight agencies, are generally intended to serve the public interest by bringing to bear their particular expertise in a quasi-judicial fashion, including a certain independence from the government of the day. But while they are often imbued with court-like powers, they do not have the same degree of independent authority as the judiciary and are intended to provide more informal, expeditious, and expert forums for dealing with specialized matters.

However, the intended value of administrative tribunals is rendered for naught when they are confronted by the need to rely on the courts to give effect to their mandates, with all of the associated costs and delays associated therewith, a result likely not intended by Parliament when establishing such agencies.

It would seem that some of the key lessons of the Somalia experience, from which I have already said this commission arose, wherein accusations–whether well-founded or not–were fueled by a lack of transparency, have not been learned. Oversight of military policing, like military policing itself, presents a number of unique challenges. The commission’s goal throughout this process has been focused on one overarching objective: to ensure public confidence in the integrity and professionalism of military policing and the rule of law.

Again, I very much regret the additional delay occasioned by the present adjournment in rendering this service to the Canadian people, the complainants, and indeed to the military police personnel involved who continue to live under a dark cloud of unproven suspicion. However, for the duration of my appointment, I can assure that the commission will continue to be committed to resolving these matters as soon as possible, and in the public interest.

Thank you, Mr. Chair.

»  (1720)

The Chair: Thank you, sir.

Now, committee, we have a quandary here. We have 10 minutes left before the bells ring. Do you want to start into the questioning? You’re not all going to get a question.

Hon. Bob Rae: I would just make the suggestion that we not proceed with questions today. I think we would all feel dissatisfied with having one question and not being able to pursue a line of questioning. I know it’s been frustrating for Mr. Tinsley and I appreciate his having come here, but I think the best thing to do would be for us to come back the next time and proceed with questions at that point. I just think we’re not going to have a satisfactory exchange for anybody and I think it’s better if we do that. I haven’t discussed with my colleagues. I don’t know what anybody else thinks, but that would be my view.

The Chair: Mr. Tinsley, would that opportunity present itself for you?

Mr. Peter A. Tinsley: If you’re talking of next Wednesday, Mr. Chair, I will appear. I will advise you that I’m travelling this weekend to Brazil to speak at an oversight conference and get off a plane at noon next Wednesday, but I will appear.

Hon. Bob Rae: We’ll work it in. I think it’s important.

The Chair: I think we’re almost set up for next Wednesday’s meeting. We may have some confirmation of witnesses, so I’m not sure when we can work it in, but we’ll have to work it out.

The Chair: Do we have agreement on that?

Mr. Jack Harris (St. John’s East, NDP): Agreed. I don’t think we’ll get to anyone besides one question anyway, so let’s do it another time.

The Chair: Thank you, sir.

I appreciate you being here and we’ll be in touch. We have your opening comments.

The meeting is adjourned.


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