Thursday, October 29, 2009

Thuggee in the Canadian Military

Perspective from Mark Twain in India

Here is the tally-sheet for a gang of sixty Thugs for a whole season - gang under two noted chiefs, "Chotee and Sheik Nungoo from Gwalior":

"Left Poora, in Jhansee, and on arrival at Sarora murdered a traveler.
"On nearly reaching Bhopal, met 3 Brahmins, and murdered them.
"Cross the Nerbudda; at a village called Hutteea, murdered a Hindoo.
"Went through Aurungabad to Walagow; there met a Havildar of the barber caste, and 5 sepoys (native soldiers); in the evening came to Jokur, and in the morning killed them near the place where the treasure-bearers were killed the year before.
"Between Jokur and Dholeea met a sepoy of the shepherd case; killed him in the jungle.
"Passed through Dholla and lodged in a village; two miles beyond, on the road to Indore, met a Byragee (beggar - holy mendicant); murdered him at the Thapa.
"In the morning, beyond the Thapa, fell in with 3 Marwarie travlers and killed them.
"Between Choupra dn Dhoreea met a Marvarie; murdered him.
"At Dhoreea met 3 Marwaries; took them two miles and murdered them.
"Two miles further on, overtaken by three treasure-bearers; took them two miles and murdered them in the jungle.
"Came on to Khurgore Bateesa in Infore, divided spoil, and dispersed.
"A total of 27 murdered on one expedition".

Mark Twain
Following the Equator
Dover, New York, 1897, pg. 432

I admit to being stunned by the reaction of some segments of our society to that idea, which seemed pretty obvious to me. They said that killing isn't our job, but I asked myself, why do they think we spend millions, even billions of dollars a year on equipping, training and building air, land and sea combat units? Why were we attracting, enrolling and training to a fever pitch so many fine young Canadian men and women, equipping them with the best weapons systems that we can find, putting them together as teams and leading them?

Why did they think we have artillery, automatic cannon and precision-guided bombs and missiles on our ships, aircraft and vehicles, if not for when our country orders us to go and kill bad people? I guess that came as a shock for some, certainly to those politicians, academics and others who were leading us down this path of so-called soft power, or of keeping Canadian soldiers in an exclusively peacekeeping role and hence, in my view, keeping Canada's impact soft and small. We can't have much of an impact in the world using soft power when the rest of the world is hard!

From A Soldier First. Copyright 2009 by Rick Hillier. All rights reserved. Reprinted by permission of Harpercollins Publishers Ltd.

"He was really dedicated to the idea of serving overseas," Semenko said. "He felt the best way to serve was to do it overseas. His idea was not to give candy to children, but to kill insurgents."

Wednesday, October 21, 2009

Canada Evidence Act S.38 and your tax dollars at work

Obtained from wikileaks at their Swedish site.

And somewhow, we need a new Commissioner for the Military Police Complaints Commission. How did that happen?

Saturday, October 17, 2009

"When in Nuremberg..."

I'm not saying there's anything wrong with the National Post Editorial Board being a bunch of turkeys, or being opinionated turkeys. But if they're going to be opinionated, ignorant turkeys, I'm gonna say something.

National Post editorial board: When in Afghanistan...
Posted: October 16, 2009, 8:30 AM by NP Editor

The Conservative government continues to face accusations that it is deliberately trying to sandbag an inquiry into when Canadian military police first knew they might be transferring Afghan prisoners to Afghan detention facilities where they might be tortured or made to suffer privations by other Afghans. The issue, at this point, is the period of time between May 2006, when Canadian diplomat Richard Colvin first warned of the possibility that Canadians were indirectly implicated in “serious” prisoner abuse by the sovereign government of Afghanistan, and May 2007, when the government agreed to strengthen procedures for following up on Canadian captives in Afghan custody.

Or alternatively, the issue at this point is whether the transfer of prisoners from Canadian to Afghan custody was ever legal in the first place.

Many of the news stories about this controversy are careful to mention that Canada is bound to comply with the Geneva Conventions on the treatment of prisoners and victims of war. If it were the case that the totality of the Conventions applied, there might be good reason for the expectation of civilian oversight and deep investigation. But most of the provisions of the Conventions don’t apply directly to the war in Afghanistan, since it is not a conflict of “international character” under their terms. The full Conventions are relevant only by a sort of verbal game which turns them into a permanent, universal norm for wars featuring non-state actors.

Willem Keitel, who was hung at Nuremberg for violation of The Hague Convention, would be interested to hear that the Geneva Conventions are "a sort of verbal game." The judgement of the International Military Tribunal states in part:

"On 4th August, 1942, Keitel issued a directive that paratroopers were to be turned over to the SD. On 18th October Hitler issued the Commando Order which was carried out in several instances. After the landing in Normandy, Keitel reaffirmed the order, and later extended it to Allied missions fighting with partisans. He admits he did not believe the order was legal but claims he could not stop Hitler from decreeing it."

"When, on 8th September 1941, OKW issued its ruthless regulations for the treatment of Soviet POW's, Canaris wrote to Keitel that under international law the SD should have nothing to do with this matter. On this memorandum in Keitel's handwriting, dated 23rd September and initialled by him, is the statement:" The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures." Keitel testified that he really agreed with Canaris and argued with Hitler, but lost. The OKW Chief directed the military authorities to cooperate with the Einsatzstab Rosenberg in looting cultural property in occupied territories."


"There is nothing in mitigation. Superior orders, men to a soldier cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly and without military excuse or justification."

The magnitude of Keitel's crimes was horrendous, but like murder, the principle is the same. What worries us "liberal critics" is that the law is very clear - and this is Canadian law - if we take prisoners, we're responsible for their welfare and the standard is that of the Geneva Conventions. If we can't meet that standard, then the operation is illegal.

Just to be clear about the law, in the Federal Court of Canada, which presumably has jurisdiction in whatever dark little world is inhabited by the National Post Editorial Board, Justice Mactavish stated in 2008 FC 336 at paragraphs 179 and 180 among other places that the Third Geneva Convention applied to prisoners taken by Canadians.

Furthermore, the Secretary-General of the United Nations in his Bulletin of 1999, stated that the Third Geneva Convention was the standard for United Nations Forces acting in the field. There are those of us - liberal fools presumably - who thought that the Third Geneva Convention of August 12, 1949 regarding the treatment of prisoners of war was a fact, and that exactly fifty years later, on August 12, 1999, the Secretary General of the United Nations merely confirmed that this standard applied to UN forces in the field.

This is part of a questionable trend in international law that began even before 9/11: Liberal critics generally would like to eliminate the distinction between our obligations to a traditional warring state and our obligations to insurgent and guerrilla groups. This includes groups such as the Taliban that use terror against civilians and themselves regard the Geneva code as ridiculous.
There is a certain John Yoo-like quality to this rhetoric. It doesn't matter what anybody thinks about the Geneva Conventions. The fact is that they apply to Canadian forces in Afghanistan as everywhere. I draw the Post's attention to Section 8 of the Secretary-General's Bulletin.

There are core rules that do apply to the Conventions’ contracting parties in absolutely all military conflicts: namely, that noncombatants and the wounded should not suffer murder or assault, should not be used as hostages, should not be gratuitously humiliated, should not be subject to summary execution, and must receive medical treatment and the necessities of life. But combatants healthy enough to be jailed instead of hospitalized — such as those Afghan prisoners at the root of the current controversy — aren’t entitled even to this second-hand protection. This fact makes the case for running roughshod over our own military and national security, in pursuit of the rights of those combatants, much weaker.

Well, this is bullshit. What are "Afghan prisoners at the root of the current controversy"? Farmers who don't like violent foreigners on their land? Sunni fundamentalists who've grown up in poverty and war, and want to strike back at the most obvious of targets? Taliban "contractors" from Uzbekistan? By the way, is Uzbekistan on the list of nations like to shelter al-Qaeda? Or how about Yemen? What does "running roughshod over our own military" mean? Application of the rule of law? In case the Post thinks international law is some kind of nebulous standard to be used for political purposes, I draw its attention to the Crimes Against Humanity and War Crimes Act (2000), and in particular to Section (2)(a)(vii) on page 22 that defines "unlawful transfer" of prisoners of war as a war crime.

The fact is that Canada, as an invited participant in a foreign civil war on behalf of the sovereign power there, faces an intractable logical difficulty. We’re fighting for a backward culture that does not accept all of our ideas about human rights — against an even worse subculture that not only has the most attenuated notions of human rights conceivable, but is a standing threat to the peace of the whole world. In such an environment, it is inevitable that Canadian soldiers will be complicit, if only indirectly, in procedures that do not meet our own rarefied due-process standards. Short of Canadians building their own prison and court system in Afghanistan, or sending every single detainee we catch to face Canadian criminal justice, Afghanistan’s dirty fight will always leave some kind of black mark on those Canadians who are fighting it.

Not to belabour the point, dear Editors, but the Canadian military were also under the impression that the Geneva Conventions applied to their prisoners, since the International Committee of the Red Cross was notified of the capture of all of them, as shown in this nice cumulative log:

You might also notice that this log stops at the end of April 2006, which is about the time Mr. Colvin started gathering information about such prisoners in Kandahar. I was advised by Counsel for the Department of National Defence at a hearing April 20, that the statistics were not kept after the end of April, although this seems improbable on the face of it.I didn't know we could be invited to be a "participant" in a "foreign civil war". Who invited us? I had thought, perhaps wrongly, that we were in Afghanistan by flimsy legal cover of NATO's right to "collective self defence", Article 5, corresponding to Article 51 of the UN Charter, the rationale for this being that Afghanistan had "attacked" New York, or harboured those who did, and unless NATO invaded Afghanistan in self-defence, attacks might occur endlessly - masterminded by evil geniuses holed up like malignant termites in the Hindu Kush or Tora Bora or wherever - and the fact that there were terrorist attacks in London and Madrid subsequent to the invasion doesn't mean anything: things would have been much worse if Afghanistan hadn't been invaded.
Our one message to the government’s liberal critics is that Canada may someday be involved in a war on this particular model that they actually favour, even if they don’t favour this one. Wars these days tend not to be fought in Belgium and Britain — but in places such as Darfur and Chechnya, where the concepts of human rights and due process are bad jokes. Do they want to make it impossible for us ever to do battle against the truly intolerable on behalf of the merely questionable?
The question, dear Editors, is who decides what is "the truly intolerable"? Do we, like, decide in a bar on the back of a beer coaster? If yes, who is "we"? Do we debate the matter in Parliament and then decide to "participate" in a civil war, if invited? Is Canadian foreign policy decided in a back room at NATO HQ in Brussels? At the United Nations Security Council? If so, using what rules? The legal problems of the "Responsibility to Protect" are considerable, and as Somalia showed, it's easier to get in than get out, and even more difficult to get out leaving a lasting peace.

That is the question that non-government intervenors and academics increasingly seem to be raising: not whether the Canadian military should have been in Afghanistan, but whether it can ever go anywhere and still conform to their notions of right conduct.

The question, members of the NP Editorial Board, is whether we live under the rule of law or whether we don't. The law is not a "notion of right conduct". As Orwell said, there's only one rule in power politics, which is that there are no rules. If we live under the rule of law, and I believe we do, then that law is clear, it includes the Third Geneva Convention, and that Convention definitely applies to prisoners taken by Canadian forces in Afghanistan. If the National Post Editorial Board prefers arbitrary rule, it can move to Guantanamo. With luck, they might be struck by hurricanes and have to watch endless Leafs games in their shelters.
In matters of human rights overseas, let us not permit the great to become the enemy of the good.

In matters of human rights overseas, the good may necessarily become the enemy of the great.

Read more:
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Friday, October 16, 2009

In The Federal Court of Canada...

I lost, but I'm proud of my effort. I'm proud of the Federal Court of Canada. I'm proud of the Access to Information Act. I'm proud to be a Canadian.

The following judgement is the result of almost three years of effort on my part - worth every second of it - to get the Government of Canada to tell the truth about prisoners taken by Canadian Forces in Afghanistan.

To me, it's remarkable that an ordinary Canadian citizen can take the government to court, even if the citizen does not have the $500,000+ necessary to have proper legal representation, and be heard respectfully, carefully, and thoroughly. I couldn't ask for more. I am reassured that I live under the rule of law, and not by some arbitrary hand.

Having said that, this isn't over. In the remote possibility that anybody from the Department of Justice reads this, that does not mean proceeding to an Appeal. So not. I've had my day in court and was heard.

Mr. Colvin's Affidavit

The entire document is here. and was obtained from the website of The Globe and Mail, here.

Hats off to the Globe to Mr. Colvin.

Thursday, October 15, 2009

The United Nations Security Council - Star Chamber for the 24½th Century

"Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing." Wikipedia

Bring on the glitter.

Tuesday, October 13, 2009


An unprecedented attempt by a British oil trading firm to prevent the Guardian reporting parliamentary proceedings collapsed today following a spontaneous online campaign to spread the information the paper had been barred from publishing.

Carter-Ruck, the law firm representing Trafigura, was accused of infringing the supremacy of parliament after it insisted that an injunction obtained against the Guardian prevented the paper from reporting a question tabled on Monday by the Labour MP Paul Farrelly.

Farrelly's question was about the implications for press freedom of an order obtained by Trafigura preventing the Guardian and other media from publishing the contents of a report related to the dumping of toxic waste in Ivory Coast.

In today's edition, the Guardian was prevented from identifying Farrelly, reporting the nature of his question, where the question could be found, which company had sought the gag, or even which order was constraining its coverage.

But overnight numerous users of the social networking site Twitter posted details of Farrelly's question and by this morning the full text had been published on two prominent blogs as well as in the magazine Private Eye.

Carter-Ruck withdrew its gagging attempt by lunchtime, shortly before a 2pm high court hearing at which the Guardian was about to challenge its stance, with the backing of other national newspapers.

MPs from all three major parties condemned the firm's attempt to prevent the reporting of parliamentary proceedings. Farrelly told John Bercow, the Speaker : "Yesterday, I understand, Carter-Ruck quite astonishingly warned of legal action if the Guardian reported my question. In view of the seriousness of this, will you accept representations from me over this matter and consider whether Carter-Ruck's behaviour constitutes a potential contempt of parliament?"

The Commons question reveals that Trafigura has obtained a hitherto secret injunction, known as a "super-injunction", to prevent disclosures about toxic oil waste it arranged to be dumped in west Africa in 2006, making thousands of people ill.

Farrelly is asking Jack Straw, the justice secretary, about the implications for press freedom of a high court injunction obtained on 11 September 2009 by Trafigura "on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura".

The Guardian is still forbidden by the terms of the existing injunction, granted by a vacation duty judge, Mr Justice Maddison, to give further information about the Minton report, or its contents. Last month, Trafigura agreed to pay more than £30m in compensation and legal costs to 30,000 inhabitants of Abidjan in Ivory Coast, for "flu-like symptoms" they might have suffered following the dumping. The oil traders continue to deny that the waste could have caused serious or fatal injuries.

The use of "super-injunctions", under which commercial corporations claim the right to keep secret the fact that they have been to court, has been growing. Anonymity is also increasingly being granted to individual litigants.

Last week, an anonymity order was overturned at the supreme court under which Mohammed al-Ghabra, an alleged al-Qaida financier named in official UN and Treasury publications, was to be known only as G. A further pending supreme court case involving an MI5 officer's memoirs is currently only known as "A v B".

Alan Rusbridger, the editor of the Guardian, said yesterday: "I'm very pleased that common sense has prevailed and that Carter-Ruck are now prepared to vary their draconian injunction to allow reporting of parliament. It is time that judges stopped granting 'super-injunctions' which are so absolute and wide-ranging that nothing about them can be reported at all."

Carter-Ruck, whose partner Adam Tudor has been representing Trafigura, issued a press release conceding: "The Order would indeed have prevented the Guardian from reporting on the Parliamentary Question which had been tabled for later this week." But the firm said the Guardian's reporting on the issue had been "highly misleading".

The firm added: "There is no question of Trafigura seeking to 'gag' the media from reporting Parliamentary proceedings, and the parties have now agreed to an amendment to the existing Order so as to reflect that."

The previous night, Carter-Ruck had written to the Guardian saying: "The threatened publication would place the Guardian in contempt of court … please confirm by immediate return that the publications threatened will not take place."

At Westminster , the Liberal Democrat MP Evan Harris said there was a need to "control the habit of law firms" of obtaining secrecy injunctions, and his colleague David Heath told the Commons a "fundamental principle" was being threatened: that MPs should be able to speak freely and have their words reported freely.

On the Conservative side, David Davis, former shadow home secretary, criticised the rising use of "super-injunctions", in which the fact of the injunction is itself kept secret.

He said courts should not be allowed to grant injunctions forbidding the reporting of parliament.

Bercow said the issue could be raised formally as a matter of privilege, but he understood the injunction had been lifted.

Farrelly told the Guardian afterwards: "The issuing by the courts of so-called super-injunctions is rightly controversial and a matter of growing concern. That is why, using parliamentary privilege, I tabled these questions.

"The practice offends the time-honoured 'rule against prior restraint', which safeguards freedom of expression in this country.

"It also fails to protect whistleblowers acting in the public interest. The huge legal bills involved in fighting cases, too, have a chilling effect on legitimate investigative journalism.

"So often, the beneficiaries are big corporations. The fact that the press is also barred from reporting the existence of these gagging orders is doubly pernicious."

Sunday, October 11, 2009

The Head of State

Cool. The CIA lists Michaëlle Jean as Head of State, but Steve's got his knickers in a twist about it. Funnily enough, the Governor General's website is off the air. So we have here a palace insurrection.

Parliamentary democracy is up to this challenge by Steve, who has contributed absolutely nothing to Canadian society, but is all in favour of an authoritarian state, as imagined by George Orwell. With a little help from his friends, particularly The Queen, he's toast.

Thursday, October 8, 2009

Lyndon Johnson in Afghanistan

He was beginning to wrestle with himself, aware of what escalation might do to his domestic programs, wary of the military's promises, knowing that it might be easier to start that to finish, that it was his record and his Presidency which were at stake, and aware also of the charge that might be made against him if things went sour - that he was soft, and that he had lost a country. His enemies, he knew, were lying in wait out there to turn on him if he went wrong on Vietnam, to destroy him for other reasons. What good would it do, he told friends, not to spend American resources on the war is you lost the war, and in losing the war, lost the Congress? Yet knowing also that if he went ahead he might lose the Congress, too, and might lose the Great Society. He would say to friends, talking about this dilemma, "If we get into this war I know what's going to happen. Those damn conservatives are going to sit in Congress and they're going to use this war as a way of opposing my Great Society legislation. People like Stennis and Gross. They hate this stuff, they don't want to help the poor and the Negroes but they're afraid to be against it at a time like this when there's been all this prosperity. But the war, oh, they'll like the war. They'll take the war as their weapon. They'll be against my programs because of the war. I know what they'll say, they'll say they're not against it, not against the poor, but we have this job to do, beating the Communists. We beat the Communists first, then we can look around and maybe give something to the poor." It was, said a man who was with him that night, eerie listening to him speak, like being with a man who has a premonition of his own death.

David Halberstam
The Best and the Brightest
Ballantine Books, New York, 1992
page 597

Mother Jones on Truth and Afghanistan

Monday, October 5, 2009

Harper Tinkles While Afghanistan Burns

By the way, whatever happened to Grant Kippen and the Afghanistan Electoral Complaints Commission? It sounds like a band.

You know, it's a funny thing about the "UN-backed" ECC. It didn't exist in the first draft of the Afghan Constitution. and, interestingly enough, it doesn't exist in the Afghan Constitution as of March 2009. It was not in the Electoral Law of 2004, but was in the Electoral Law of 2005, by which time three members were also to be appointed by the Secretary General. And who advises him, one wonders?

The ECC is usually referred to as the "UN-backed" commission. I'm not sure what "UN-backed" really means. Which part of the UN? The General Assembly? The so-called Security Council, which rules by Chapter VII and Divine Right? The psychotic United Nations Office on Drugs and Crime, an agency by gangsters, for gangsters, and of the gangsters?

So, exactly where did the Electoral Law of 2005 actually come from? Why does Grant Kippen, a Canadian white guy, actually have a job? Who pays him? And why is he suddenly irrelevant in the soap opera of the United Nations in Afghanistan, with JK Galbraith's son having a hissy fit, and Kai Eide reportedly firing him all over corruption in the Afghan federal election, which the "UN-backed" Electoral Complaints Commission (ECC)is investigating.

It's a funny thing about Galbraith. The UN was pressured by the US into taking him on, essentially over Eide's dead body, so that the United Nations mission in Afghanistan, modest though it is, had an American usurper as its deputy, which to any naive observer would make the UN mission seem just as corrupt as NATO and ISAF, and of course the Security Council, which rubber stamps continuing extensions of the ISAF presence in Afghanistan, which doesn't include Bagram or Operation Enduring Freedom, both of which seem well outside International Humanitarian Law, which the US treats as if it were UNESCO, a worthy enterprise but largely decoration.

I recall that some people were hung at Nuremberg for violations of International Humanitarian Law as it existed in 1939, never mind the Geneva Conventions.

Where was I? Oh, yes, Galbraith. As he said in his Washington Post "op-ed":

"President Obama needs a legitimate Afghan partner to make any new strategy for the country work. However, the extensive fraud that took place on Aug. 20 virtually guarantees that a government emerging from the tainted vote will not be credible with many Afghans."

Where did Obama come from? Who was Galbraith working for, the UN or the US? If he was having so much trouble, why didn't he take it up with the Secretary-General, rather than the press? If the election was a predictable train wreck, the train at least ran on time, and it makes one wonder why Galbraith and the US were so keen his having the job in the first place, unless they really bought into the fantasy that there was a real government in Kabul.

Meanwhile, back at the Electoral Complaints Commission, which may or may not be part of the United Nations, Mr. Kippen stated:

“I look at this as a huge opportunity both professionally and personally. It’s a huge opportunity to come in and help build institutions and processes,” said Kippen who reflects on the excitement of Afghans involved in the political process.

“We are in a country where there’s a lot of challenges on many different perspectives. I take a lot of strength from our Afghan colleagues and their determination for it to turn out well. This is really historic stuff.”

"It will be fair," Grant Kippen, the head of the ECC, said.

"We've got these international experts who have been doing this and who have advised that this is a good approach."

Either Mr. Kippen or Mr. Galbraith is living in Fantasyland. Or both.

On the other hand we have some American sanity, based on history, by Mr. W. Polk, who has written an open letter to Obama in The Nation. I recommend it to Mr. Galbraith, Mr. Kippen, Mr. Moon, and in fact, everybody with half a brain, which leaves out the military/industrial wing of the Conservative Party of Canada.

Saturday, October 3, 2009

Sophisticated Explosive Devices

"But if thought corrupts language, language can also corrupt thought."

George Orwell
Politics and the English Language
Essays, Knopf, Toronto, 2002, pg. 964

What is an "Improvised Explosive Device"? It's a bomb. Like the one dropped on Nagasaki, which of course was an atomic bomb, and delivered from the air, it was definitely "improvised" because it had never been tested. The technology of course was very sophisticated, but so what? The technology of "explosively formed penetrators" is also sophisticated. The whole thing is sophisticated enought to have killed 76 of the 131 Canadian soldiers killed in Afghanistan.

So call rewrite. Substitute every reference to Improvised Explosive Device, or IED, with Sophisticated Explosive Device, or SEP, and see how it reads.