Sunday, November 8, 2009

Remembrance Day, 2009

November 11, Remembrance Day, 2009

James Wilfred Elliott
Regimental Number 908082
195th Battalion
Canadian Expeditionary Force

Dear Uncle Wilfred,

I wrote you last over a year ago, and a lot has happened since then, or perhaps very little has happened, but I wanted to bring you up to date, and as a matter of fact, I wanted to get a lot of this off my chest, so you're the guy I'm writing to; it would be you I'd want to tell this to in person.

I was rummaging through my files with respect to Remembrance Day and this blog (the purpose of which is to document "an attempt to extract public information from the Department of National Defence"), and found your enlistment certificate... well as the citation for your Military Medal, which speaks for itself...

...and the unique and irreplaceable trench map showing where you were wounded during the Battle for Hill 70 at Lens, France...

And, just to be clear why I'm doing all this, it was because of alarming statements by people like Rick Hillier former chief of the Defence Staff, a little like General Arthur Currie, who apparently spoke for large parts of the Canadian government (Rick, not Arthur), when he said:

"These are detestable murderers and scumbags. They detest our freedoms, they detest our society, they detest our liberties." -- Hillier on July 14, 2005, on Osama bin Laden and Islamist terrorists in general. He added: "We're not the public service of Canada. We're not just another department. We are the Canadian Forces, and our job is to be able to kill people. "

I don't think Arthur Currie spoke like this, however. Or maybe he did. But in Rick's world the enemy is "they", whoever "they" are, and the solution is to kill them. What about the Sikh terrorists in Surrey, the guys who organized the Air India bombing? I haven't noticed Rick invading Surrey, or perhaps more to the point, the Indian Army invading Surrey, arresting citizens who resist them, or killing them as "insurgents", and dropping prisoners off at the Surrey Pre-trial Detention Centre. I'm sure I'd rather be in Surrey than in the Sarpoza Central slammer in Kandahar, but you see my point. Somehow, it's as if the entire 20th century's sorry history of industrialized warfare had ceased to exist for Rick, and with it the attempts of many people to make sure it happened less and less - meaning international law like the Geneva Conventions - and for Rick the whole thing comes down to "good guys", "bad guys", and brute force, all of which worked so well in Vietnam. And as a matter of fact, the Canadian armed forces are a branch of the public service of Canada. They've got weapons, but so does the RCMP, as we know.

But if Rick was surprised by the reaction to his thoughts on killing people in war, he seemed equally surprised by the thought that Canadians might also take prisoners - I would have thought this was pretty obvious. As it turns out - and I don't think you have to be an international lawyer to know this, Wilfred - you can't shoot prisoners of war out of hand. Since I'm a Canadian citizen and responsible in my own way for what my government does, like I was apparently responsible for the crime committed against Maher Arar by the government, the bill for which came to about $25 million, with no government official ever having to account for any of it, I went so far as to ask Rick what had happened to prisoners in Afghanistan, just in case handing them over to Afghan "authorities" was, as it seemed to be, a war crime committed on my behalf.

The question was part of a memo asking several other questions, like "What is the Mission in Afghanistan and how will we know when it's over?" and "Is Afghanistan's central government legitimate?", questions that seem, weirdly, still around over three years later. "International affairs", which we have to be very secretive about so as not to disturb anybody, seem to move at about the same pace as the redaction guys in the basement of National Defence, which is to say you wait a long time for a snow job, but I'll get back to that in a moment. Anyway, the questions I put to Rick were as follows:

"I read that the International Committee of the Red Cross is very impressed at how Canadian troops record their prisoner handovers to Afghan "authorities", but where does the trail lead after that Rick? There is some pretty horrific evidence about what Americans regard as "interrogation" that doesn't exactly fit the Geneva Conventions, and went on at Bagram Air Force Base, not to mention Guantanamo, and what guarantees are there that the prisoners taken by Canadian forces (prisoners, Rick, not "detainees") will not end up in American prisons through the well known process of "rendition". And by the way Rick, where are the records of these prisoners kept, meaning the Canadian records?"

I'm not saying all this is due to one guy. Paul Martin is implicated for sure, backing up Hillier:

"Then there was a recent incident involving Canada’s top military official, General Rick Hillier. Our troops are now in southern Afghanistan, and what they are likely to encounter, Hillier publicly dubbed “detestable murderers and scumbags [Taliban]…They detest our freedoms, they detest our society, they detest our liberties.” Members of the Polaris Institute, a left-leaning foreign affairs think tank asked the General’s remarks be clarified. This was rejected. And PM Martin went farther, defending Hillier, saying “The point he [Hillier] is simply making is we are at war with terrorism and we're not going to let them win” [citations in this paragraph appear in “‘Murderous Scumbag’ Shot Par for the Course for New Defence Chief; No Reprimand,” by Stephen Thorne, CP, 15 July 2005. Posted at]."

For Paul and Rick, the answer is in Article 12 of the Third Geneva Convention (which of course has many other articles, which Canada has signed, regarding the treatment of prisoners of war):

"Art 12. Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them."

I would have thought that was pretty clear: if you take prisoners, their welfare is your responsibility.You see the problem, Wilfred. You won't know all these guys of course, but even if you're using the Hague Conventions as you were, handing off prisoners of war to fates unknown wasn't going to fly, just as it didn't fly for Field Marshal Wilhelm Keitel who was hung at Nuremberg for his treatment of Russian prisoners of war, among other crimes, in violation of the Hague Conventions. Furthermore, there is no real contracting out of this responsibility. I hope Rick and Paul are both worried about this, as Gord, Steve, Pete, and Larry should be, rather than the Military Police on the front lines. Now that I think of it, Bill Graham should be on that list, a guy who was quoted by Michael Byers, as saying at a UBC lecture in November 2005, when he was Minister of National Defence (page 33): "that Canada had no choice but to transfer prisoners to U.S. or Afghan custody, because we lacked the facilities to hold them and building such facilities would be impracticable." According to Bill, who got the gold medal in his law class, it was "impracticable" for Canada to care for its own prisoners of war in Afghanistan. This is a guy with a zillion law degrees, a law prof in fact, former Cabinet Minister, and a guy who thinks "impracticable" is an exit from responsibilities under the Geneva Conventions. Furthermore, in a conference call on October 12, 2005, he said:

"That’s going to be their job is to go out and meet them in the field and destroy them and destroy their capacity to attack our troops and to attack innocent Afghan people. So there’s no question but that is the nature of that mission and it will bring those consequences with it."

So there seems no doubt that military combat was on Bill's horizon, and you would have thought, the possibility of prisoners. I'm suggesting in fact that all prisoner transfers made by Canadian troops in Afghanistan to Afghan "authorities" were "unlawful", unless somebody makes a case that that is incorrect, and if they have, I haven't seen it.

I'm starting to imagine a very crowded courtroom scene in The Hague, since it seems unlikely that such a trial could be conducted in Canada, a scene reminiscent of those Nuremberg pictures,

but where the accused are all Canadian politicians and military officers.

It's not a picture that springs easily to the eye.

Anyway, I didn't hear back from Rick, not surprisingly, but then got the idea from reading about the American Civil Liberties Union that we in Canada had our own Access to Information Act, which we do, so I got a form, filled it in, and sent off my five bucks. I was very impressed. Here's the form:

And here is the answer:

And here is a sample page from the 73 page attachment,

and they all look much the same. It took nine months to produce this report, and I figured it out that each line of redaction took one day of those nine months, which is pretty slow redaction - maybe they've got one retired sergeant-major sitting on a tall stool somewhere, working by candle-light with a bottle of white out and quill pen - but the Canadian Military Police Complaints Commission has been having the same problem, so I know it's not just me.

That of course was about three years ago, and how it all happened is on this blog but it takes a while to go through it all. It ended up - for the moment - as an application for judicial review in the Federal Court of Canada, which was an interesting experience and a partial success. It was a success in that I got the Department of National Defence to tell the truth, but only part of the truth, and that reluctantly, in fact they refused to tell any of the truth, but the Federal Court of Canada pried truth out of them that, as it turns out, had been released to Amir Attaran - a relentless pursuer of the truth - in November, 2007, and a relevant document is the Campaign Against Terrorism Detainee Log, one sample of which is this:

You will notice, Wilfred, that the information I asked for in my Access to Information Act request, is exactly the information contained in the in the "Transfer Log", and completely unrelated to the "information" I eventually got from Defence. So now, at least I know what document to ask for.

And, there was more to it than that.

Chief Justice Alan Lutfy, who was hearing my application, had initially held an ex parte (secret) and in camera (closed) hearing with counsel and a witness from the Respondent Minister of National Defence on March 5, 2009, from which I was naturally excluded, but Justice Lutfy got to see the government's case. I thought this was a victory for the rule of law.

Subsequently, at the direction of the court, and with the participation of counsel for the Minister of National Defence, a public hearing was held in Vancouver on April 20, 2009, on what was agreed were the public components of the Respondents' Record (another victory for the rule of law, in my opinion). During those proceedings (I know I'm not a lawyer, Wilfred, but the language starts to rub off on you after a while, and I'm starting to think that's not a bad thing at all, lawyers having learned ways of speaking during heated conflicts that otherwise would end up in violence), Justice Lutfy expressed concern about the statements given by a Confidential Affiant from the Department of National Defence at the March 5 hearing in Ottawa, and directed that his understanding of this sworn testimony be clarified by letter.

As a result, after the hearing, and at the direction of the Court, I received a copy of the letter stating that the Confidential Affiant had made an error, an "honest mistake".

Fair enough. The thing is, there is the matter of Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, in which the Supreme Court of Canada stated at paragraph 27:

"In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8."

However, the DND testimony at the ex parte hearing was undoubtedly very well informed in respect to technical matters, and Justice Lutfy had no reason to doubt anything, except the part about the public availability of information released by DND about prisoners taken in Afghanistan. That availability was the whole point of my Access to Information Act request, and of course this blog. So either the Confidential Affiant was not well informed on this matter, which seems a little weird if that's the guy the Department of National Defence sent over to testify to the Chief Justice of the Federal Court of Canada in closed session, or otherwise, the testimony falls into the category of "Misleading Justice" which is part of the Criminal Code of Canada.

Misleading Justice

136. (1) Every one who, being a witness in a judicial proceeding, gives evidence with respect to any matter of fact or knowledge and who subsequently, in a judicial proceeding, gives evidence that is contrary to his previous evidence is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, whether or not the prior or later evidence or either is true, but no person shall be convicted under this section unless the court, judge or provincial court judge, as the case may be, is satisfied beyond a reasonable doubt that the accused, in giving evidence in either of the judicial proceedings, intended to mislead.

Personally, I'd prefer to think that the DND expert knew everything except the public availability, and you can't know everything. However, none of this prisoner confusion has been cleared up, Uncle Wilfred, and it's difficult for me to imagine how a guy (the letter from the Department of Justice said "he") who didn't know what he was talking about could make an assertion in the Federal Court of Canada for which there was no basis in fact. As far as I can tell, the Department of National Defence has released no information whatever about prisoners it has taken in Afghanistan, at the end of each year or at any other time. All the information released has been from the Department of Foreign Affairs and International Trade.

On the other hand, if I put the information I do have together with the investigation by the Canadian Military Police Complaints Commission, there is I believe strong evidence for an investigation of possible "grave breaches" of the Geneva Conventions that occurred as the result of transfers of prisoners taken in Afghanistan from Canadian to Afghan custody. And as a matter of fact, that's what we're supposed to be doing, according the the Fourth Geneva Convention at Articles 146 and 147:

I think the meaning here is unmistakably clear, both as to the definition of "grave breach" including "unlawful transfer", and the obligation imposed on "High Contracting Parties" - which most definitely includes Canada - to investigate and bring such breaches before their own - again, Canadian - courts.

As I say, you won't be familiar with the Geneva Conventions, Wilfred, but they were designed to supplement and stengthen the Hague Conventions, which I was interested to learn are still in force and define, among other things, what is a military "occupation" (Article 42), which I think accurately defines NATO's activities in Afghanistan, although as an occupation it is remarkably inept.

So I've made a complaint. I'm aware that ordinary citizens involving themselves in complaints against the government might reasonably be considered to be "frivolous or vexatious" in some cases. I don't think that applies to me. My understanding is that "frivolous" means there is no hope of success: obviously, my application the Federal Court of Canada was not viewed in that light. My understanding of "vexatious" is that undue hardship would be imposed on those required to defend themselves in a proceeding that has no chance of success. Again, no undue hardship was imposed on the Minister of National Defence in my previous application, or for that matter, any members of the government during or after the Maher Arar disaster.

What could be interesting is the conflict of interest that would arise in the Department of Justice, which would be responsible both for investigating a complaint of war crime, and representing government servants being investigated. This has come up, repeatedly, at the public interest hearings of the Canadian Military Police Complaints Commission.

I'll keep you posted.