Tuesday, April 13, 2010

Browsings of a document dump bear [links fixed]

"The major problem is quite simply one of grammar, and the main work to consult in this matter is Dr. Dan Streetmentioner's Time Traveller's Handbook of 1001 Tense Formations. It will tell you for instance how to describe something that was about to happen to you in the past before you avoided it by time-jumping forward two days in order to avoid it. The event will be described differently according to whether you are talking about it from the standpoint of your own natural time, from a time in the further future, or a time in the further past and is further complicated by the possibility of conducting conversations whilst you are actually travelling from one time to another with the intention of becoming your own father or mother." Douglas Adams, The Restaurant at the End of the Universe

So, OK, the reason for this blog is, as advertised, “the story of an attempt to extract public information from the Department of National Defence.” The information sought was and is concrete evidence that Canada is complying with its obligations under International Humanitarian Law, particularly the Geneva Conventions of August 12, 1949, and the reason I care being that millions of people died in the last two “World Wars”, and my Uncle Wilfred left me his Military Medal from World War 1 – specifically to me, he didn’t leave me anything else – and I have assumed that means he left me the Medal in trust, so that other kids don’t have to live through what he did. And of course, millions of people didn’t live through it. And kids are still getting killed.

All of that caused me to apply for information, through our excellent Access to Information Act, which in turn led to nine months’ delay, after which I received 73 almost totally redacted pages – exactly as the current Information Commissioner decried – after which I appealed to the previous Information Commissioner, which caused a further six months’ delay, following which I received a FOAD letter from said Commissioner, following which I applied for a judicial review in the Federal Court of Canada.

There were many times I almost quit, but some cantankerous spirit wouldn’t let me, thinking I’d let Uncle Wilfred down.

So I persevered, and ended up representing myself in the Federal Court of Canada, with endless support from friends and family who thought – probably correctly – that I was nuts, and was courteously received and lost, although the losing had benefits, particularly a “reading down” of the Access to Information Act so that ordinary Canadian citizens could more easily ask the government to be accountable. What more could I ask?

At that point, I thought maybe I should just wind up the blog, I’d done everything I could do. And yet….something wouldn’t let me go. I felt the government had tried to snow me, and therefore my Uncle Wilfred, and in my eyes – even worse – the Federal Court of Canada in the person of Chief Justice Allan Lutfy who showed me great consideration as a “lay litigant,” and who, after all that, I had seriously aggravated by almost forcing sudden death overtime with the Department of Justice. I mean, Crosby is Captain Canada. I was being Acting Lance Corporal not-Canada, and was about to be handed my head in a bag if I persisted in my quixotic battle with the Department of Justice, although in my mind it was the Department of National Defence I was after. That was six months ago, and in the interval I, like many others have been a horrified, yet fascinated, onlooker to the train wreck that is the “Afghan detainee issue,” being wildly appreciative that I wasn’t the only nutbar in the country who couldn’t let this go.

I was therefore equally fascinated to review the CBC “document dump” administered by the fabulous CBC Politics crew, particularly but not only, SuperBerry O’Malley, and I thought I had, as a result, a “Gotcha” moment. The reason for that is as follows. The ATIP response I received from the DND was the aforementioned almost entirely redacted 73 pages of military gibberish. At the hearing in Vancouver on April 20, 2009, I received a document “CAMPAIGN AGAINST TERRORISM DETAINEE TRANSFER LOG” which was almost exactly the document I had requested in December, 2006, but didn't know existed.

I thought…perfect… my Access to Information Act request had worked. Subsequently, after the hearing, I found out that this document was in the public domain as of November 2007, having been posted by Professor Amir Attaran of the University of Ottawa, and being the response of DFAIT to his Access to Information Act request, which, as it turns out, was subsequent to mine. One of the differences was, of course, I was dealing with the Department of National Defence which has a history. Or maybe it was just me. Whatever.

So in fact, the result of the hearing was that I got information that was already in the public domain, but that was fine, we were getting somewhere.

Then, with the whole Afghan documents thing in Parliament and the Canadian Military Police Complaints Commission proceeding relentlessly down the path of open government that I, a die-hard Canadian citizen, thought I knew and loved, the government released a mass of documents – an obvious snowstorm – which the CBC nevertheless organized and placed on the web in an accessible form.

So far, so hoopy.

I, as a concerned Canadian citizen, with more than a passing interest in the whole affair, browsed among said documents, and discovered what I thought was the smoking gun.

Let me take you, dear reader, back to the April 20, 2009 hearing in the Federal Court of Canada. The lawyer for the Department of Justice, Erin Tully, was representing a client, the Department of National Defence that seemed, even to me, uncooperative at best, and surly at worst. I thought it was taking years off her life, but my sympathies were limited: she was getting paid and I wasn’t.

So the crucial thing is, she stood up in Federal Court and said the following:

The entire transcript is here.

I took this as a good faith assertion – which I still believe it to be – that her client, the Department of National Defence, had led her to believe that the only documents that existed concerning Canadian prisoners in Afghanistan during Operation Medusa in September, 2006, were the 73 redacted and useless pages that Justice Lutfy assured me contained no information related to my request that had not already been revealed.

I could believe it. And yet…it bugged me. Here we have the…log, kept meticulously for four years from 2002 to April 2006 and it just ceased to exist? Some time ago, I decided that this was possible, even if highly unethical and almost certainly illegal.

Then, then, dear readers, I browsed the CBC document dump and discovered the following:

The next seven pages are exactly the same, although numbered consecutively pages 1-10 as a DFAIT document, EV.DFAIT.0002 .0 180.

So now we’re into the “Misleading Justice” section of the Criminal Code of Canada. It’s not me, particularly; it’s that the Chief Justice of the Federal Court of Canada was led to believe that documents which did exist did not exist.

Then, bells began to ring dimly in my addled mind. Wait, I thought, maybe these documents already exist in the public domain in Amir Attaran’s document dump of November 14, 2007.

And indeed they do. I submit that these documents, overlooked by me but freely available in the public domain, make clear that Canada did indeed keep track of prisoners taken in Afghanistan, and that such a summary existed until at least May, 2007 – contrary to the statement in open court by counsel for the Department of National Defence – and that that document took up at least 10 pages, the first forty prisoners having taken up a page and a bit, which works out to - at 30 lines per page - 300 prisoners as of May 2007. And the documents exist. There can be no doubt of what’s under the redacted 10 pages: the DFAIT document number - EV.DFAIT.0002 .0 180 - is the same for all 10 pages, the date of release is the same, and it occurs in the document between two emails that refer to it as such. What else could it be? The floor plan of the Canadian Ambassador’s residence in Kabul? The arrivals and departures schedule of Canadian Forces aircraft at Kandahar Airfield? Afghan recipes?

This little problem – misleading justice – seems endemic to the culture at National Defence Headquarters, as revealed in the Somalia Inquiry, but not in Afghanistan to the troops on the ground who seemed perfectly aware of their responsibilities as defined by Section 12 particularly of the Third Geneva Convention Regarding Prisoners of War.

The good news is, it’s all gonna come out, this is Canada. I’m not saying it won’t hurt. So what? Here’s my Uncle Wilfred’s Military Medal citation:

So, in what seemed to be the logical conclusion, I filed a complaint against Gordon O'Connor and Rick Hillier with the RCMP War Crimes Section. The complaint and associated correspondence is here. Uncle Wilfred, we'll just have to see what happens.