Wednesday, December 30, 2009

House of Commons Night in Canada

So it's me, Ron MacLean with Don Cherry on House of Commons Night in Canada. Don, it's been an interesting few days, the Prime Minister prorogued Parliament and the Governor General went along with it, issued the proclamation. What's your take on that?

Well, I won't pretend I'm not disappointed. I thought the GG would've called Harper on this obvious weasel move. It's just a shame when the officials get in the way of the game of Parliamentary Democracy, but of course we've seen it before.

Like the Fog Bowl of 1988?

Yeah, and that's just for starters. The Stanley Cup got delayed because nobody could see what was going on. But really, you have to go way back for an infraction of this kind...

...which would be...?

The Stanley Cup final of 1906, which was actually played in 1907...

...that was between the Montreal Wanderers and the Kenora Thistles...

...that's the one. It was old time hockey, seven-a-side, and all the players were on the ice the whole time...

So why is that similar to what happened today?

The Wanderers didn't show up on the ice while they were arguing about the rules. Kenora was there, they were ready to play, but the big-league guys, Montreal, were trying to finesse the rules.

So how did it turn out?

Kenora won! They had speed, finesse, and determination.

So how does that compare to what we're looking at now?

Nobody ever won the Cup by pulling a dive! I have to say, I'm on the Governor General's side on this one. I'm a little choked she didn't force Harper back onto the ice to face the music, but in the end, she didn't want the officiating to get in the way, and she definitely sent the Conservatives a message by dragging out the decision. Harper has prorogued twice in 12 months, there's no way he'll get away with it three times.

So we'll leave it there until March, a long time in the game of parliamentary democracy...

Yeah, well the Thistles had to wait six months before they could get at Montreal...

...and it's good night from House of Commons Night in Canada..

...I got the GG's proclamation made up on a new suit...

It'll look good with your Charter tie.

Tuesday, December 29, 2009

"The Need For a Vigilant Parliament"

From the Report of the Somalia Inquiry, Executive Summary (1997)

Canada has begun a new relationship with its armed forces, one that arguably requires greater involvement by members of Parliament and Canadians generally in the direction, supervision, and control of the Canadian Forces. Civil control of the military may be a defining characteristic of liberal democracies, but it does not invariably occur. Civil control of the military, whether it is operating in Canada or abroad, should come from attentive citizens acting through an informed, concerned, and vigilant Parliament.

There is a perceived need to strengthen the role of Parliament in the scrutiny and development of defence policy. Moreover, it is possible that this goal can be achieved by establishing an effective mechanism in Parliament to oversee the defence establishment and by making a few, but significant, amendments to the National Defence Act.

The quintessential condition for control of the military and all aspects of national defence is a vigilant Parliament. During the period between 1949 and 1989, the missions, tasks, organization, and functioning of the armed forces were largely fixed by the circumstances of the Cold War. The oversight of the armed services by members of Parliament during this period was largely of a pro forma nature. Since 1989, however, the Canadian Forces have increasingly been called on to serve Canada in complex situations involving uncertain alliances, where the missions or the applicable doctrine are not always clear, and resources, too often, are inadequate.

Given this reality, Parliament must exercise greater diligence in critically monitoring the terms agreed to, or set by, the government for the employment of the Canadian Forces overseas, and safeguarding members of the armed forces from unreasonable risks; it must also monitor the operations of commanders and troops in the field. In 1994, a Special Joint Committee of the Senate and the House of Commons reported that "whatever our individual views on particular issues of defence policy or operations, there was one matter on which we agreed almost from the beginning - that there is a need to strengthen the role of Parliament in the scrutiny and development of defence policy."

Proponents of a greater role for Parliament also see a need to strengthen Parliament's involvement in other important areas of national defence. Their argument proceeds on the basis that Canada requires a modern and more effective mechanism for the greater control of national defence, one that is better suited to a sovereign liberal democracy and to the circumstances that the CF will most likely encounter at home and abroad.

Conducting inquiries of this nature arguably should be Parliament's responsibility, although it does not as yet do this. To achieve this goal of more effective oversight, Parliament's mechanisms for inquiry must be improved. A starting point in this regard, as discussed in Chapter 44, might be to have the powers and responsibilities of the Minister of National Defence, the Chief of the Defence Staff and, in particular, the Deputy Minister of National Defence, clarified in law. We also recommend that there be a parliamentary review of the adequacy of the National Defence Act every five years. This would also strengthen the role of Parliament and ensure that it increases, while also providing the military with increased access to Parliament.

Monday, December 28, 2009

Germaine Tillion's prescription for the eradication of terrorism

Germaine Tillion:
member of the French Resistance, survivor of Ravensbrück Concentration Camp, negotiator for human rights in Algerian Civil War

"We see the United States as deeply worried about terrorism. But effectively fighting against terrorism does not mean increasing the number of military operations; it means fighting against what causes terrorism. If you introduce kindness and gentleness at the place where terrorism begins, you will eradicate terrorism without pain. It is necessary to examine the most sensitive areas of the earth. You can do nothing to stop the seventeen-year-old kid who has decided to place a bomb somewhere. You can do strictly nothing, and any effort against him will just fly back in your face. Countering violence with violence is the most ineffective response imaginable. Instead, we should target the pain, with the goal to alleviate it. I firmly desire a worldwide dialogue, and I would like to see the United States discharged from the monologue. The period of great wars is over. Science has put in the hands of children extraordinary means of death. The greatest error the United States is currently making is to think that international military operations can stop a seventeen-year-old child from acting. The focus should be placed instead on alleviating the pain in the most sensitive regions of the world, beginning with Jerusalem."

Excerpt from “Déchiffrer le silence”:
A Conversationwith Germaine Tillion
by Alison Rice
Research in African Literatures 2004 35(1):162-179

Germaine Tillion
Indomitable French enthnologist who survived the concentration camps to champion human and women’s rights in Algeria
Obituary from The Times
April 24, 2008

Saturday, December 26, 2009

Unavailable documents déja vu

Excerpt from: The Report of the Somalia Inquiry, Volume 5

Unavailable Documents

We were also often frustrated in our attempts to get documents known to have existed but that were unavailable to us. Examples include the National Defence Act Review, the Chief Review Services (CRS) studies, and the Kipling Reports.

In September 1995, Inquiry staff requested a copy of the National Defence Act Review.72 Other documents in our possession describe this work as a review of the military justice system conducted internally by the Department and presented to the Defence Management Committee (DMC) in January 1994. A month later SILT replied, stating that the document was under consideration by the Judge Advocate General (JAG) and that it was "not possible to give an exact date when the request will be answered".73

In February 1996, SILT forwarded to us a letter from the JAG stating that the Department had established a process to review the National Defence Act and brief the DMC, and ultimately the Minister, on recommended changes to that act. Although the consultation phase had ended in the summer of 1994, the report was not yet finalized, and the draft would not be released to us.74

Over a year after the original request, in November 1996, we sent a further letter to see what progress had been made. SILT's response, a month and a half later, was "[a]lthough the current rationale for withholding this documentation remains unchanged, the Office of the Counsel for the Government of Canada remains willing to discuss the process. For these reasons, SILT's perspective is that this request will be considered closed".75

After nearly a year and a half, we were no further ahead in obtaining the desired information. We wanted to study the review to understand the areas identified for change by the Department and the nature of those changes. Instead, well over a year after the creation of a draft report, the Department continued to deny us a copy, giving no indication when the report would be available. SILT's final comment on the matter was that it considered the request closed.

In November 1995, we asked for a complete list of the studies prepared by the Chief Review Services in DND since 1991.76 The CRS is responsible for the internal investigation of issues, often at the request of senior departmental officials. Its studies were of interest because the Department's own views of issues being investigated could prove quite revealing and helpful to our work. In December, we amended that request, asking for a list of all studies and reports by the CRS since the position was established.77 This list was provided in March 1996. In April, we asked for a number of documents of interest from that list.78 This request remained outstanding as of August, and we sent a reminder to SILT, increasing the priority of that request.79 In December, SILT forwarded the majority of the requested documents. In January 1997, additional documents were forwarded. A number of documents were not included, however, because they had been "destroyed" in June 1994.80 No other information was provided about these documents, which included an evaluation entitled "Departmental Evaluation and Accountability Reporting" and an assessment entitled "Public Information", presumably covering the dissemination of information to the public.

In December 1995, we made a high­priority request asking SILT for information about documents known as the Kipling Reports and asking for copies of such reports produced in the years 1993 and 1994.81 In February 1996 SILT replied that the Kipling Reports are bi­weekly reports compiled by the NDHQ Secretariat to inform senior staff of current DND issues and are based on information supplied by NDHQ directorates. SILT reported that, based on telephone conversations with the NDHQ Secretariat, "all KIPLING Reports from 1993 have been destroyed and copies are not being kept any more".82 However, no mention was made of the Kipling Reports from 1994, which we had also requested.

After receiving nothing more on this matter, we wrote back to SILT in December 1996, asking for a more thorough search.83 SILT's response was that a broadened search revealed that all recipients of the report had destroyed the 1993 and 1994 copies according to records disposal guidelines and that the documents were not available in the Department or the government.84 Once again, documents that were of interest to us were ultimately unavailable after many months of waiting. Even more disappointing was the fact that a comprehensive search was conducted by the Department only upon a specific request from us and that SILT did not take this step on its own initiative.

The CRS studies and the Kipling Reports are just two examples of the destruction of high­level documents with no apparent regard for the loss to corporate memory. It is understandable that copies distributed to individuals have become unavailable, but we have more difficulty accepting that the individuals or offices responsible for producing such documents would not retain any records.

The Need to Hold Hearings on Document-Related Issues

Because SILT had failed to deliver all the relevant documents on time, we had no choice but to begin hearings before we had received all the documents. Evidentiary hearings began in October 1995, and as they proceeded through the fall of 1995 and continued through the winter of 1996, we continued to receive, process, and review new documents, including documents of direct relevance to the hearings already under way.

Because of the serious difficulties that we had encountered in obtaining disclosure from SILT, we were obliged to hold public hearings to determine why we were not receiving documents necessary for us to fulfil our mandate and whether this deficiency was deliberate.

Pursuant to our terms of reference, we began hearings in April 1996 related to the integrity of the documents delivered to us, The main issues explored were non­compliance with our orders for production of documents; the alleged destruction and alteration of Somalia­related documents; discrepancies in the NDHQ logs; and missing in­theatre logs.

Alteration and Attempted Destruction of Somalia Related Documents

Later in this chapter, we detail the complexities surrounding the alteration and subsequent attempted destruction of Somalia­related documents. This issue resurfaced within the DGPA as a result of our order for the production of all relevant documents. While other areas of the Department submitted Somalia­related materials pursuant to SILT's instructions, the DGPA had not complied, although it knew of the requirement. On the contrary, arrangements were made by supervisors in DGPA to destroy documents requested by us to cover up their previous deceptions. This plan was unsuccessful, however, because the arrangements were discovered before they were carried out.

During the hearings, many details of the affair were examined, and witnesses for the most part denied responsibility. It was clear, however, that the Department had failed blatantly to comply with our order for production. The actions of the Department were, we concluded, dishonest and deliberate. To cover the original deception, the severity of misdeeds had escalated from artifice to lies to non­compliance with an order for production and finally to the attempted destruction of evidence.

Tuesday, December 22, 2009

Somalia, Interrupted

"We can only hope that Somalia represents the nadir of the fortunes of the Canadian Forces. There seems to be little room to slide lower. One thing is certain, however: left uncorrected, the problems that surfaced in the desert in Somalia and in the boardrooms at National Defence Headquarters will continue to spawn military ignominy. The victim will be Canada and its international reputation."

The entire Somalia Inquiry report is here.


From its earliest moments the operation went awry. The soldiers, with some notable exceptions, did their best. But ill-prepared and rudderless, they fell inevitably into the mire that became the Somalia debacle. As a result, a proud legacy was dishonoured.

Systems broke down and organizational discipline crumbled. Such systemic or institutional faults cannot be divorced from leadership responsibility, and the leadership errors in the Somalia mission were manifold and fundamental: the systems in place were inadequate and deeply flawed; practices that fuelled rampant careerism and placed individual ambition ahead of the needs of the mission had become entrenched; the oversight and supervision of crucial areas of responsibility were deeply flawed and characterized by the most superficial of assessments; even when troubling events and disturbing accounts of indiscipline and thuggery were known, there was disturbing inaction or the actions that were taken exacerbated and deepened the problems; planning, training and overall preparations fell far short of what was required; subordinates were held to standards of accountability by which many of those above were not prepared to abide. Our soldiers searched, often in vain, for leadership and inspiration.

Many of the leaders called before us to discuss their roles in the various phases of the deployment refused to acknowledge error. When pressed, they blamed their subordinates who, in turn, cast responsibility upon those below them. They assumed this posture reluctantly - but there is no honour to be found here - only after their initial claims, that the root of many of the most serious problems resided with "a few bad apples", proved hollow.

We can only hope that Somalia represents the nadir of the fortunes of the Canadian Forces. There seems to be little room to slide lower. One thing is certain, however: left uncorrected, the problems that surfaced in the desert in Somalia and in the boardrooms at National Defence Headquarters will continue to spawn military ignominy. The victim will be Canada and its international reputation.

The following is a summary of the final report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia. To the best of our ability, the report fulfils our obligation under various orders in council to investigate the chain of command system, the leadership, discipline, actions and decisions of the Canadian Forces, as well as the actions and decisions of the Department of National Defence, in respect of the Canadian Forces' participation in the United Nations peacekeeping mission in Somalia in 1992-93.

During the deployment of Canadian troops, events transpired in Somalia that impugned the reputations of individuals, Canada's military and, indeed, the nation itself. Those events, some of them by now well known to most Canadians, included the shooting of Somali intruders at the Canadian compound in Belet Huen, the beating death of a teenager in the custody of soldiers from 2 Commando of the Canadian Airborne Regiment (CAR), an apparent suicide attempt by one of these Canadian soldiers, and, after the mission, alleged episodes of withholding or altering key information. Videotapes of repugnant hazing activities involving members of the CAR also came to light. Some of these events, with the protestations of a concerned military surgeon acting as a catalyst, led the Government to call for this Inquiry. It is significant that a military board of inquiry investigating the same events was considered insufficient by the Government to meet Canadian standards of public accountability, in part because the board of inquiry was held in camera and with restricted terms of reference. A full and open public inquiry was consequently established.

The principal conclusion of this Inquiry is that the mission went badly wrong: systems broke down and organizational failure ensued. Our Inquiry canvassed a broad array of issues and events and a massive body of documentation and testimony to reach this unhappy conclusion. Even then, in two major respects, we encountered considerable difficulty in fulfilling our obligations.

First, the Inquiries Act provides the authority to subpoena witnesses, hear testimony, hire expert counsel and advisers, and assess evidence. Under normal circumstances, such powers should have given us the confidence to present our findings without qualification. However, on January 10,1997, while Parliament was adjourned, the Minister of National Defence announced that Cabinet had decided that this Inquiry had gone on long enough, that all hearings must be cut off on or about March 31,1997, and that a report with recommendations was required by June 30, 1997.
This was the response of the Government to our letter setting out reporting date options and requesting an extension until at least December 31, 1997, a period of time that would have allowed us to conclude our search for the truth. That search had already involved, among other things, thousands of hours of preparation and cross-examination of the individuals who played various roles in the Somalia deployment - and as time progressed, the superior officers to whom they reported. As our investigation progressed, we were able to move closer to the key centres of responsibility as we moved up the chain of command. Unfortunately, the Minister's decision of January 10, 1997, eliminated any possibility of taking this course to its logical conclusion and prevented us from fully expanding the focus to senior officers throughout the chain of command who were responsible before, during and after the Somalia mission. (emphasis added)

The unexpected decision to impose a sudden time constraint on an inquiry of this magnitude is without precedent in Canada. There is no question that it has compromised and limited our search for the truth. It will also inhibit and delay corrective action to the very system that allowed the events to occur in the first place.

Second, the careful search for truth can be a painstaking and, at times, frustrating experience. Public inquiries are equipped with the best tools that our legal system can provide for pursuing the truth, but even with access to significant procedural powers, answers may prove elusive.

Even in those areas where we were able to conduct hearings - on the pre-deployment phase of the mission and part of the in-theatre phase - we were too often frustrated by the performance of witnesses whose credibility must be questioned. The power to compel testimony was our principal mechanism for determining what transpired in Somalia and at National Defence Headquarters. Some 116 witnesses offered their evidence to the Inquiry in open sessions broadcast on television across Canada.
Giving testimony before a public inquiry is no trivial matter. It is a test of personal and moral integrity that demands the courage to face the facts and tell the truth. It also involves a readiness to be held to account and a willingness to accept blame for one's own wrongdoings. Many soldiers, noncommissioned officers, and officers showed this kind of integrity. They demonstrated courage and fidelity to duty, even when doing so meant acknowledging personal shortcoming or voicing unwelcome criticism of their institution. We are cognizant of institutional as well as peer pressure facing the witnesses who appeared before us. These soldier-witnesses deserve society's respect and gratitude for contributing in this way to the improvement of an institution they obviously cherish.

However, we must also record with regret that on many occasions the testimony of witnesses was characterized by inconsistency, improbability, implausibility, evasiveness, selective recollection, half- truths, and plain lies. Indeed, on some issues we encountered what can only be described as a wall of silence. When several witnesses behave in this manner, the wall of silence is evidently a strategy of calculated deception.

Perhaps more troubling is the fact that many of the witnesses who displayed these shortcomings were officers, non-commissioned officers, and senior civil servants - individuals sworn to respect and promote the values of leadership, courage, integrity, and accountability. For these individuals, undue loyalty to a regiment or to the institution of the military - or, even worse, naked self-interest - took precedence over honesty and integrity. By conducting themselves in this manner, these witnesses reneged on their duty to assist this Inquiry in its endeavours. In the case of officers, this conduct represents a breach of the undertakings set out in their commissioning scroll.

Evasion and deception, which in our view were apparent with many of the senior officers who testified before us, reveal much about the poor state of leadership in our armed forces and the careerist mentality that prevails at the Department of National Defence. These senior people come from an elite group in which our soldiers and Canadians generally are asked to place their trust and confidence.

We are well aware of recent reports submitted to the Minister of National Defence addressing issues of leadership and management in the Canadian Forces. Certainly, such studies and reports by informed specialists are valuable. But only a full and rigorous public examination of these issues, with the opportunity given to members of the military to provide information and respond to criticism, can lead to a thorough assessment of the scope and magnitude of these problems. Only an extensive and probing analysis of the people, events, and documentation involved can lead to focused and meaningful change.

This Commission of Inquiry was established for that very purpose. Its truncation leaves the Canadian public and the Canadian military with many questions still unanswered. In fact, the decision to end the Inquiry prematurely in itself raises new questions concerning responsibility and accountability.

Although we have raised concerns about the credibility of witnesses and leadership in the armed forces, it would be unfair to leave an impression that the mission to Somalia was a total failure. While we point out flaws in the system and shortfalls in leadership, we must and wish to acknowledge that many soldiers and commanders performed their duty with honour and integrity. Accordingly, we strongly support the issuance of appropriate medals to those who served so well during this troubled mission.

Moreover, we feel it is important in a report of this nature to acknowledge the invaluable contribution that the Canadian Forces have made, and continue to make, on Canada's behalf. Thousands of soldiers have performed difficult and often dangerous tasks on our behalf in pursuit of the nation's goals. Most often their dedication, selflessness and professionalism have been taken for granted, because these qualities have been assumed to be the norm. That is what made the events involving Canadian Forces personnel in Somalia so unpalatable. It is the sharp contrast between those events and the accustomed performance of our military that elicited reactions of alarm, outrage, and sadness among Canadians. In the end, we are hopeful that our Inquiry will yield corrective measures to help restore the Canadian Forces to the position of honour they have held for so long.

Wednesday, December 16, 2009

The Most Difficult Job in the World

Being a soldier. Athlete, international lawyer, cop, warrior. How much do we owe them?

A lot. Like paying judges, doctors, and airline pilots, you don’t want their judgment clouded by worrying where their next meal is coming from or, equally, trying to get rich. It’s a calling.

So if we ran the job description of a Canadian military person past the CUPE, what would it look like?

The successful candidate will display extreme fitness, durability under stress, an understanding of international law, a comprehension of world history, expertise in armed and unarmed combat, and a humane disposition.

So what would that cost, at market rates?

With that job description, the guys on Wall Street and Bay Street are nowhere. We can’t pay people enough to do this job. Here’s my take on a minimum “compensation package”.

1. Base salary of some arbitrarily significant number, say, $100,000.00 per annum

2. Bonuses for service in hazardous theatres, as a percentage of base salary, like, 100% of base salary.

3. Absolutely first class medical and other health care for members and their families, including emotional and psychiatric care, without limit, in perpetuity.

That's what we owe them.

PMO Public Relations sustains direct hit, taking water, laying smoke....

"Our job was to provide input to policy, not to beat senior officals over the head with our reports when they were in our physical vicinity."

Richard Colvin's letter to the Special Parliamentary Committee on the Canadian Mission in Afghanistan, December 16, 2009

But you've got to admit it's a fabulous idea. Would it matter whether or not the reports were redacted? Is there evidence that information imparted in such a way would penetrate the awareness of senior officials? Would the actual weight of the report matter, or if the senior offical lost consciousness?

I'm filled with enthusiasm for this direct approach to dealing with the Canadian government. I have 73 redacted pages received from the Department of National Defence in September, 2007, which, together with extensive supplementary information, I would like to bring to Ottawa at my own expense and personally impress on the Attorney-General and the Minister of National Defence (separately, so as not to cause information overload).

Then, because I know the Chief of the National Defence Staff is pressed for time, I would plan to bring to his attention the Third (Article 12) and Fourth (Article 45) Geneva Conventions, which have much less mass, but which I'm sure would make an impression on account of being the hard bound editions.

This is a much better idea than the Accountability Act.

Tuesday, December 15, 2009

Laurie Hawn’s War

My rage is reserved for Rick Casson, who should know better.

Rick Casson, M.P. - 'Your Voice in Ottawa'
From small town mayor to a five term Member of Parliament after being convincingly re-elected to office on October 14, 2008 Rick Casson continues to work diligently for the riding of Lethbridge, a federal electoral district comprised of approximately 106,000 southern Alberta residents.
After registering over 66 percent of the vote in October 2008, Rick once again joined the Government in the House of Commons for the 1st Session of the 40th Parliament. Shortly after he was named Chair of the Alberta Caucus, the Canadian Chair of the Permanent Joint Board on Defence and Chair of the Special Committee on the Canadian Mission in Afghanistan.
On a note of interest: the Permanent Joint Board on Defence is a Canadian-American advisory body established at Ogdensburg, NY, 18 August 1940, by PM Mackenzie King and US President F.D. Roosevelt. This meeting, which took place at Roosevelt's suggestion, was called during a period of crisis in WORLD WAR II. Although now only one of a number of agencies for Canadian-American military co-operation today, it continues as an arena for frank and informal exchange of views and information.

My respect for Rick just went through the floor, this is Rick Casson from Lethbridge and not Rick Hillier, roving ambassador for the TD Bank, former Chief of the Defence Staff, architect of Canada’s disastrous military policy in Afghanistan, and blowhard who appeared before the Special Parliamentary Committee on the Canadian Mission in Afghanistan – Rick Casson’s committee – to state that Richard Colvin’s testimony was “ludicrous”. I had thought Rick Casson was a decent guy, until today, when without prior notice, he “Didn’t Show Up For Work.” He’s the Chair of the Committee, a meeting was called, and he…just…didn’t…show…up.

How professional is that? Parliament has before it a motion, passed, that the government produce documents, and the guy in charge of the committee that made the motion…just…doesn’t…show…up…for…work. Nice. It’s not like Rick Casson hasn’t been around and doesn’t know the rules.

So now we come to the guy who’s making the noise, Laurie Hawn, The Weasel’s Pit Bull, trying to blow off the Afghan prisoner issue like it’s a distraction from the main events of our time…like…Christmas…or…Copenhagen (no, bummer)…or the Olympics! This is just not a good time to bring up war crimes with the Canadian public who, in any case, should “get real”.

When would be a good time to bring up a discussion of Canadian compliance with international humanitarian law, and, in particular, the Third Geneva Convention, and in particular, Article 12:

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.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.

How about "never", Laurie? Does “never” work for you?

Laurie says the Committee could have met by teleconference. Right. As a lawyer friend of mine says about cross-examination in writing, it’s like sending your neighbour a letter saying “Dear Sir. Your dog is irritating me. Please kick your dog. Yours sincerely.” Like, the Minister of National Defence and the Chief of the Defence Staff are going to be beamed into his committee to be ineffectively scrogged by committee members who may be sitting by the hearth fire cracking chestnuts. I can hear them sweating: “zzzzz”.

Luckily, we have the Governor-General, who may be the main obstacle to a police state.

Monday, December 14, 2009

Coach's Corner - Don's take on the "Serial Proroguer"

There must be cases in which a request to prorogue would be an abuse of power and thus be unconstitutional. Few would disagree that the governor general who is asked to prorogue parliament indefinitely, or who is approached repeatedly by a serial proroguer, would be entitled to refuse on constitutional grounds. The principle of responsible government cannot be maintained if ministers are not required to face parliament. The ball must be kept in play, and there is only one political institution that has been given the responsibility of ensuring that it is. Returning to the events of December 2008, the Prime Minister’s request was arguably sought for just such an improper purpose – to avoid the scrutiny of the House of Commons in order to remain in power.

Bradley W. Miller
Assistant Professor, Faculty of Law, University of Western Ontario
(2009) 20 Public Law Review 100

Welcome to House of Commons Night in Canada. I'm Ron MacLean here with Don Cherry. Grapes, it's been a busy couple of days, you've been in the news, a lot's going on.

You're telling me. I got the proverbial hitting the fan - I know I'm not supposed to say what I said to that idiot who phoned me...

That's absolutely right, we'd better - stay off that...

I got some neurosurgeon yapping at me from Regina on one hand, and now the Governor-General looking like she's going to step into it on the other...

Let's stick with the GG, it seems a lot safer....

...and a lot more fun, let's face it. I got a lot of time for the Governor-General, and hey, let's remember, where did the Stanley Cup come from? A Governor-General!

OK, we're getting a little ahead of ourselves here. Let's back up to where we left it last time, with the Commons heading into sudden death overtime after practically a tie vote of the Afghan prisoner problem...

...and I'm gonna stop you right there and say I'm really glad it didn't come down to a shootout with the Speaker...

...which would have happened with a 144-144 tie....

That's right, but it would have been a shame to see that happen - I'd hate to see the Speaker in that position, he's a good guy - and it wouldn't have been good for the game of Parliamentary Democracy. It'd be like the the World Cup and it all comes down to a shootout.

OK, so lucky for us it's not happening, but the Commons has risen for the Christmas break, not to sit again until January 26, and the Special Parliamentary Committee on the Canadian Mission in Afghanistan is meeting anyway, and tomorrow will be grilling Peter Mackay, Minister of National Defence, and separately,Chief of Defence Staff General Walter Natynczyk. What's your take on that?

Well, I can't say for sure, the meeting will be behind closed doors, and what goes on in the Room, stays in the Room, but I think it'll be pretty heated, I'd like to be a fly on the wall.

How do you think in will play out?

I think a lot of frustration will get out, a lot of strong feeling, but I think the Committee will be split just like before - I don't see this government coughing up any documents - and it'll go back to Parliament to decide if they want to pursue it in the courts.

You think that'll happen?

Hard to say, but I think they should settle it among themselves, and not drag the courts into this. They're big boys, they should act like big boys.

Which brings us to the Governor-General, who is of course not a boy.

Now you're just trying to get me going! You know what I mean.

So there are a lot of rumours flying around...

Tell me about it....

...that the Prime Minister is going to ask the GG to prorogue Parliament until after the Olympics, to let the whole Afghan thing blow over..

You know, that's taking a dive. That's not the game of Parliamentary Democracy. Harper pulled this stunt last year - some people say it was a good thing, the jury's still out on that one - but I don't think the GG will let him pull it off this time.

What makes you say that?

Well first of all, last time she made him sweat. I got the feeling he thought he was just going to drop into Rideau Hall for a cup of tea and tell the Governor-General what she has to do....and hey!....several hours later, no Harper. And that was last time...

So you think this time will be different?

All I'm saying is the Governor-General isn't a shrinking violet, and if she goes into a corner with Harper and he tries to pull a dive on her....well...I think I know who's coming out. My opinion, and it's only my opinion, is the GG has good elbows...

So then he'd have to come back to Parliament, and....

...and then who knows? That's why it's such a great game. And then there's the Olympic hockey which is going to be a barn burner! But I wanna say this before we go. Remember...remember that Lord Stanley's kids played for the Rideau Rebels. OK? I'm only saying....

So we'll leave it there for now. We'll see you very soon, on House of Commons Night in Canada...

(2009) 20 Public Law Review 100

Sunday, December 13, 2009

Bloody, Unbowed, Exasperated


To: General Walter Natynczyk
Chief of the Defence Staff
Department of National Defence
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario, Canada
K1A 0K2

From: Neil Kitson
Incensed Citizen
Vancouver, British Columbia

Date: December 13, 2009

Re: Afghanistan FAQ

Dear Walt,

Things seem to be heating up at your end of Ottawa.

Some time ago, three years or more, I wrote to your esteemed predecessor, Rick Hillier, who as it turns out was, like you, a Deputy Commander at Fort Hood, scene of the recent senseless shooting, with regard to questions about Canadian involvement in Afghanistan. I didn’t hear back from Rick, but the questions are still being asked. Me, I’ve “moved on”, as people say when anxious to avoid liability, because I think the questions have been answered, sort of.

I note that on November 11, 2009, Remembrance Day, you were on television saying you were planning to have all Canadian troops out of Afghanistan by 2011, because that was the language of the Parliamentary Resolution of 2008. Interesting. I’m particularly interested that you seem completely clear that your authority is derived from the language of the resolution. I’m not a lawyer, Walt, but I’ve had some experience with the law, and it strikes me you’ve had legal advice. When people start talking about the language of the law, you know they’ve been talking to lawyers. That will be important at the International Criminal Court in The Hague when the responsibility for the Afghan debacle is painfully reviewed, particularly the part about prisoners of war.

I notice also that the ranking Canadian medical officer in Kandahar, Rob Briggs, has been getting some legal advice of his own.

“Briggs said that when medical staff in Kandahar Airfield sought legal advice, they were told that under the Geneva Conventions, prisoners of war should receive the same treatment as Canadian soldiers.
‘We have had a legal opinion that states yes, indeed, we should be offering — on a voluntary basis — detainees H1N1 [vaccinations] because it's being seen as a preventive measure," said Briggs.’”

Add to that Rick’s recent book saying that the Prime Minister’s Office knew all about the prisoner handovers, and you start to get the picture of people covering their own asses.

It’s not a pretty picture, just like the pictures of the Canadian Airborne Regiment torturing people in Somalia weren’t pretty, and resulted in the entire Regiment being disbanded in disgrace. There has been a lot of talk about Rick restoring pride in the military, and peculiar articles in the Globe and Mail about how Canadians are embracing a new “muscular” military, together with an article in the Georgia Straight about how Canadians were falling over themselves to play gung-ho war games, which suggests somebody is trying to paint a picture of the old guts and glory days of the Canadian military, if in fact such days ever existed.

I’m suggesting they never did. First of all, if we go back to the Boer War, Canadians were involved in “farm burning” in South Africa, events now clearly described as war crimes. They (the troops) didn’t like it. Second, the undoubted heroism of the Canadian troops in World War 1 produced an extremely ambiguous result, some might say disastrous, that resulted in World War 2. Third, the undoubted heroism of Canadian troops in World War 2 produced a violent end to the mistakes of World War 1, but as Farley Mowat points out, the guys in the comfy cushions at headquarters seemed oblivious of the price paid by guys in the firing line, and then there’s Dieppe.

What is the Afghanistan “Mission” and how will we know when it’s over?

Somehow Walt, I’m back to my original questions. Nobody knows what the “Mission” is, or was. The legal basis is NATO Charter Article 5, the “collective right to self-defence” corresponding to the UN Charter Chapter VII, Article 51, but as I said to Rick, it’s a bit of a stretch to argue that NATO was attacked by Afghanistan. This was the first time Article 5 was invoked, Walt, and it’s certainly looking like the last. The good news is that as a legal experiment in renovating a “failed state” to bring it up to code, without giving it much thought beforehand, or even asking permission of the current occupants, it has failed: totally, absolutely, and without qualification. But that’s OK, experiments often don’t work out the first time. The important thing is to call a spade a spade, and admit it didn’t work. Then we can get on with doing something constructive, like getting the hell out.

Then, there is the matter of common sense, military common sense. If we accept the argument that NATO is trying ― in line with the “Afghanistan Compact”, whatever that is, although its blackly funny Orwellian subtitle is “Building On Success” ― to establish a civil society in Afghanistan, the provision of security would take at least 500,000 soldiers, and if they are NATO soldiers who don’t speak the language and aren’t Muslim, probably a million soldiers. These soldiers are not available, and even if they were, what would happen in Pakistan as a result? What would happen in Afghanistan for that matter? These are obvious questions nobody seems to want to ask, so I’m asking you.

Is Afghanistan’s central government legitimate?

I think the answer is in on this one, Walt. No. It was looking questionable three years ago, and there seems to be no doubt in anybody’s mind now, at least, no doubt in the English speaking world, which is of course not south Asia. It’s not clear what the United Nations really thinks, but it is a most divided institution.

Nevertheless, I believe there is hope for the future, and despite the madness of the past 8 years, that Canadian soldiers have not died for nothing, any more than the kids in the First World War died for nothing, although people might disagree with that proposition. I have reasons.

1. War is getting more difficult. Each time there’s a war; people try to figure out how not to have one. After World War 1 there was the League of Nations, but that didn’t quite work out, although it was pretty good as a first attempt. After World War 2, there was the United Nations, which seems to be hanging in there, and the Geneva Conventions of 1949, to set out in more detail what are war crimes. After Rwanda, there was the International Criminal Court and the Statute of Rome. I’m not saying it’s perfect. For example, Henry Kissinger should be one of the defendants in the Cambodia war crimes trial. And the USA has not signed up for the International Criminal Court for obvious reasons.

2. The internet makes controlling information difficult, although people try, but the truth comes out.

3. Most of the Canadian soldiers I’ve read about want to do good. I don’t think people will sign up for the Canadian military if they get the idea they’re being lied to and put in harm’s way for no good reason, or have to take the weight of international law on their own shoulders in opposition to war criminals in their own chain of command.

I like your idea of getting everybody out Walt, but I wish it could happen sooner. On the other hand, the Canadian accounting for this land war in Asia looks set to go on for many years, and may involve you and, with any luck, your Calgary Stampede buddy, David Petraeus, at the International Criminal Court at The Hague.

Saturday, December 12, 2009

Friday, December 11, 2009

Coach's Corner

Ron: And it’s time for coach’s corner …with …Don Cherry!


Ron: So, Don, does it get better than this? Here we are at the end of the Parliamentary Session, virtually a tie vote on a motion to compel the government to produce documents, 145-143, and we’re heading into sudden death overtime - quite possibly a constitutional crisis. Does it get better than this?

Don: You know, I’ve said it before: Canada is the best country in the world, and this just shows why. I’m not shy about saying this, I’ve always been a big fan of the game of parliamentary democracy in Canada, and what we’re seeing just proves it. I mean, a lot of attention goes to the Americans – and I like America, too, don’t get me wrong – I coached in Boston…

Ron: We know…

Don: Don’t get me started about that. Anyway, as much as I love the Americans, their politics are a snooze-fest. I mean, where’s the excitement? Congress votes haven’t changed for 40 years. Now they’ve got this new guy Obama, who’s pretty exciting to watch, but really, one guy doesn’t make a team, like I’ve said before.

Ron: OK, so let’s…by the way, that’s a pretty nifty tie you’re wearing.

Don: Thanks. It’s a silk screen print of the Canadian Charter of Rights and Freedoms.

Ron: Did they make that up for you at Fabric Land?

Don: As a matter of fact they did. I hope you’re not saying anything negative about my friends at Fabric Land.

Ron: Of course not! And of course we know you have a discount card.

Don: Everybody should have one!

Ron: So while we’re on the subject of Fabric Land, did they make that suit for you as well?

Don: As a matter of fact they did.

Ron: The design is…well…indescribable. How did they find the fabric?

Don: I have to say I had a hand it that. What I did was, I got a couple dozen old Leafs practice sweaters, and the girls ran it up into a suit.

Ron: It’s certainly arresting…

Don: Thanks!

Ron: Like cardiac arrest…

Don: Next we’ll be discussing your prostate…

Ron: Let’s not go there…

Don: Don’t worry, I won’t.

Ron: Getting back to tonight’s sudden death overtime…

Don: What’s that got to do with your prostate?

Ron: What’s your take on the clutch players?

Don: Yeah, it’s the Battle of the Robs. First there’s Rob Nicholson. I know the knock on Nicholson is that’s he’s a Junior B lawyer from Niagara Falls who fell into the big leagues by accident. I don’t buy that. Nicholson got where he is by hard work and guts, something a lot of fancy pants players could learn from.

Ron: Is your suit fancy pants…?

Don: You know what I’m talking about! Nicholson is salt of the earth Canadian hockey, and when the going gets tough, he’ll be in there swinging.

Ron: But in the playoffs he was the Invisible Man. In the proceedings before the Canadian Military Police Complaints Commission, the Chair said..

"Unfortunately, the fallibility of this arrangement has been baldly exposed herein when, quite out of step with the normal situation wherein the principal challenge to oversight is what has often been referred to as the "blue wall," the government becomes the antagonist in the oversight piece as opposed to the police themselves.

In such circumstances, notwithstanding establishment and empowerment by Parliament, experience to date in this matter has demonstrated that when the government decides not to cooperate there is no equality of arms. Indeed, herein the essential cooperation of the government has become a much-distorted concept as discussed earlier in this decision, seemingly Kafkaesque."

Don: Who was Kafka? Wasn’t he a winger with the Czechs?

Ron: He was Hungarian.

Don: Same thing. These European guys show a lot of dazzle, a lot of finesse, good with words, but in the crunch….

Ron: So how about Rob Walsh?

Don: I like this guy! He’s not your star headliner, he’s a head-down worker who gets the job done. People might not have heard of him, but his opinion on the constitutional rights of Parliament should make anybody pay attention. Watch out for this guy in overtime!

Ron: So we'll leave it there for now. Stay tuned for edge-of-you-seat overtime playoff action.

Thursday, December 10, 2009

An inconvenient signature....

So the ICRC blithely lists Afghanistan as being a signatory to the Geneva Conventions of August 12, 1949, and even shows Afghanistan as such on its very cool map.

The thing is, it's not the same Afghanistan, is it? I mean the borders are the same, for whatever that's worth, but there have been a few changes in management since August 12, 1949, including the Taliban's - which was recognized by Pakistan and...wait for it...Saudi Arabia (with whom we have "shared values" as Bird and Fortune acidly put it, of enthusiasm for oil revenue and abhorrence of corruption investigations) - and now the "Islamic Republic of Afghanistan" as cobbled together in the Bonn Agreement by some weird alchemy that was never explained, and then solidified with increasing respectability by self referencing instutitions like the United Nations.

You don't have to be an international lawyer to wonder if something signed by "Afghanistan" in 1949 is binding on the "Afghanistan" of 2009.

And, for greater certainty, the Fourth Geneva Convention...

Art. 45. Protected persons shall not be transferred to a Power which is not a party to the Convention.

This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to their return to their country of residence after the cessation of hostilities.

Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention. If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with.

In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.

The provisions of this Article do not constitute an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law.

Canadian Parliamentary Democracy asserts itself...

No messin' with the clerk

Tuesday, December 8, 2009

The correct manner of taking prisoners....

This blog, "the story of an attempt to extract public information from the Department of National Defence", is about three years old, and information is now being successfully extracted from the Department of National Defence, but not by me. I am, however, a cheering onlooker.

And since the discussion, most recently from the Chief of the Defence Staff himself, is getting down to the nuts and bolts of taking prisoners, here is the relevant CF manual which, despite the severe warning on the cover, I found somewhere on the web. As far as I can tell, Canadian Forces on the ground have made every attempt to follow the correct and lawful procedure, which is found in particular at pages 169-178 (Annex "E"). The problem wasn't on the ground, it seems.

Monday, December 7, 2009

In praise of The Globe and Mail

The record and the falsehoods

The Keitel Defence - mitigating circumstances

Field-Marshal Wilhelm Keitel was hung at Nuremberg, because among other crimes, he authorized treatment of Russian POWs, on Hitler's orders, that was a gross violation of international law as it then existed because, among other excuses, Russia hadn't signed the Hague Conventions. It didn't fly at Nuremberg: "There is nothing in mitigation."

What we hear now, from Canadian apologists for treatment of Afghan prisoners - the transfer to Afghan custody in dubious and probably illegal circumstances - is that it wasn't "practical" to look after the prisoners ourselves.

How that is a defence? First, Canadian troops took prisoners in Europe in World War 2, and sent them across what is usually called the "U-boat infested" North Atlantic to POW camps in Canada, some on the Lake of the Woods which is in the centre of the continent, about as far away from Europe as possible. Second, I've read the Third Geneva Convention, and "practical" isn't a defence, any more than the fact that Hitler said the Hague Conventions didn't matter was a defence for Keitel. Third, if Canada got into a shooting war without considering its obligations under the Third Geneva Convention, then somebody should answer for that, and it's not the Canadian Military Police on the ground who seemed to have had a much clearer idea of the Convention than the chain of command in Ottawa do now, or for that matter, do their political superiors, meaning the Minister of National Defence and his Parliamentary Secretary.

Here are the rules for United Nations forces whether engaged in "peace-keeping" or "peace enforcement." People keep throwing around the term "UN-mandated mission" in a promiscuous way, as if that made everything OK, but in fact, this is not a UN mission, and the United Nations has not signed a status-of-forces agreement with Afghanistan, which leaves ISAF flying on its own legally, doesn't it? Yes, there is UN Security Council Resolution 1386 and all that, but if that is regarded as legal authority for taking prisoners, then the Security Council is on the hook for grave breaches of the Geneva Conventions, and ISAF is on the hook either way, isn't it?

And the Third Geneva Convention seems particularly clear where the duty of care resides for prisoners:

Saturday, December 5, 2009

So who investigates the Attorney-General for obstruction of justice?

From the letter of Lori Bokenfohr, legal counsel for Richard Colvin, to Alain Prefontaine, Department of Justice, October 13, 2009

(The letter was obtained from the Wikileaks Swedish site.)

In your July 28 letter, under the heading, in bold, “What is at stake for you”, you advised witnesses and subjects that their reputation was at stake. You cautioned that Government servants must appear before the Commission in public, and that “the Commission is actively seeking to publicize the hearings and the report”. You advised that the interview would provide Commission counsel with two advantages, but that the only advantage to a witness or subject would be to “get to know his interrogator and feel more comfortable about the interrogation.” You went on to state that: “There is
no reason to believe the interview will allow you to convince her not to call you to testify…” You advised that the pre-hearing interview would allow Commission counsel to obtain testimony in advance, and that “she [Commission counsel] will commit you to that recollection…” You stated as follows:

In her mind, your appearance [at the hearing] will be the occasion to confirm what she believes she has already learned informally, not the occasion for you to stray from the predicted path. Departures from this path during the course of the hearings will lead her to question why you are not providing the same answers, thus putting your credibility in issue. Are you lying now or did you lie then? What portion of my questions did you not understand when we last met?

You warned that Military Police are at especially high risk of reputational damage, that they could be directly criticized by the Commission, and that this criticism could further “trigger a review process before the Military Police Credential Review Board.” You stated that additional members of the Military Police could be served with a “notice of potential adverse findings” following certain procedural requirements. You warned, however, that “the level of observance by the Commission of this procedural safeguard is uneven”. Finally, you stated that military commanders could become the “collateral casualties” of the hearing, and “the legality of their decision to transfer Afghan detainees will be the battleground on which the allegation of failure to investigate will be fought.”

You closed the letter by “strongly” suggesting that witnesses and subjects obtain legal advice before deciding whether to be interviewed, and you directed them to named Department of Justice lawyers. You did not, as required by Law Society rules, advise that the Department of Justice was precluded by conflict of interest from simultaneously representing Canada, witnesses, and subjects, nor did you recommend Crown servants seek the advice of independent legal counsel.

And from the Crimes Against Humanities and War Crimes Act, 2000 - Sections 16 and 17


Obstructing justice

16. (1) Every person who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice of the International Criminal Court is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

When deemed to have obstructed justice

(2) Without restricting the generality of subsection (1), every person is deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in an existing or proposed proceeding of the International Criminal Court
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; or
(b) accepts, obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence.

Obstructing officials

17. Every person who resists or wilfully obstructs an official of the International Criminal Court in the execution of their duty or any person lawfully acting in aid of such an official
(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) is guilty of an offence punishable on summary conviction.

And from the Criminal Code of Canada, Section 139

Obstructing justice

139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,
(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,
is guilty of
(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on summary conviction.


(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.


(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.
R.S., c. C-34, s. 127; R.S., c. 2(2nd Supp.), s. 3; 1972, c. 13, s. 8.

Friday, December 4, 2009

Afghan war spurring advances in medical science

Like, the normal course of trauma and pathology isn't enough. We don't have enough? You know, people getting shot up in bizarre drug deals in Vancouver is pretty good, not to mention bizarre traffic accidents.

Finishing the job in Afghanistan....

I propose a debate, to be conducted on CBC Radio and NPR Radio.

Resolved: That a victory for NATO in Afghanistan can be defined.

For: The Editorial Board of the National Post

Against: Andrew Bacevich and James Laxer

Tuesday, December 1, 2009

Section 38 of the Canada Evidence Act

If tyranny comes to Canada, it's going to love Section 38 of the Canada Evidence Act. How can such legislation be compatible with Section 2 of the Charter?

Me, I'm cheering for the Military Police Complaints Commission in the Federal Court of Appeal.

so what is an "official"?