:
Bonjour, chers collègues.
Good afternoon. Today is Wednesday, March 31, 2010, and this is meeting number four of the Special Committee on the Canadian Mission in Afghanistan.
I would remind everyone that today we are televised, and I would encourage you to turn off your communication devices, whether it's a telephone or a BlackBerry. Your chair is setting the example early, because it's usually he who ends up having a phone call in the middle of everything. We would encourage you to do that.
We are continuing our study of the transfer of Afghan detainees. Appearing as our first witness today is Cory Anderson, the political director in 2008-09 for Canada's provincial reconstruction team in Afghanistan. He is from the Department of Foreign Affairs and International Trade.
We welcome you here today, Mr. Anderson. We look forward to your comments. I have spoken with you previously and I believe your opening comments will be under ten minutes, which will encourage extra questions. I'm sure you've seen these proceedings and how that will go through each party.
Mr. Anderson, welcome to the Special Committee on the Canadian Mission in Afghanistan. We look forward to your opening comments.
I'll endeavour to keep my comments brief, given the committee's extensive deliberations on this issue to date and to allow for sufficient time for questioning, as you just mentioned.
Members of the committee, my name is Cory Anderson and I am a DFAIT official who has been working on the issue of Canadian-transferred detainees since my arrival in Kandahar in October 2006 as a political adviser to Joint Task Force Afghanistan.
Over the past three years I have held various policy and management positions in Ottawa and in Kandahar. All are related to Canada's whole-of-government engagement in Afghanistan. I've recently completed an assignment as political director of the provincial reconstruction team in Kandahar City and served as a special adviser to the independent panel on Canada's future role in Afghanistan.
As of June 2009 I had spent 20 of the previous 36 months in Kandahar on assignment for the Government of Canada. I have visited the NDS facility and Sarposa prison on multiple occasions during that time.
I am proud to have served in Kandahar alongside the brave and professional men and women of the Canadian Forces, as well as numerous civilian officials. All of them put their lives on the line each and every day in the pursuit of the noble and just cause to bring peace, security, and stability to a land riddled with over 30 years of war and conflict.
Throughout my tenure, managing the difficult and often complicated issue of Canadian-transferred detainees in accordance with international humanitarian law and Canada's international obligations has been a pre-eminent area of concern. As you have already been made aware, beginning in 2007 and culminating with the supplemental arrangement in May of that year, a number of additional provisions were put in place that markedly improved our ability to track and monitor the welfare of Canadian-transferred detainees within the custody of the NDS and ministry of justice.
This was an important step forward, and not only for the well-being of those individuals in question. What distinguishes ISAF support for the current government from systemic abuse suffered under the Taliban and their adherents is not only the principles of rule of law, respect, and internationally recognized human rights, but just as significant is the notion that these values represent a progressive way forward from the fear and repression the overwhelming majority of the population has endured for more than a generation.
We cannot purport change on one hand and then knowingly turn a blind eye to abuse at the hands of Afghan officials on the other, because it undermines the very principles we have sent our men and women into harm's way to promote. It also erodes public confidence, further confusing and alienating a population that has been let down numerous times in the past. And it provides fodder for an insurgency well versed and experienced in the art of manipulation.
The supplemental arrangement and the detainee database established shortly thereafter were instrumental in improving our ability to track and monitor these individuals. Both had a tangible and immediate effect on the ground in Kandahar. David Mulroney, in particular, should be credited with providing the leadership necessary to implement these new provisions.
In my experience, the challenges we faced on the detainee file prior to the consummation of the supplemental arrangement were essentially a microcosm of two fundamental issues. The first is the endemic and systemic duplicity within the NDS, especially at the provincial level, which exists to this very day and renders it virtually impossible to have an open and transparent relationship with their officials on the ground in Kandahar on this issue. This was exacerbated by an initial transfer arrangement that was deficient, not only due to a lack of content, but also due to the fact that it was co-signed and endorsed by a Canadian general and the Afghan Minister of Defence, General Wardak. Both absolved their specific organizations of any direct responsibility for post-transfer follow-up or monitoring.
This means that prior to May 2007, this critical undertaking was left to the Afghanistan Independent Human Rights Commission, a fledgling organization that was essentially shut out by the Afghan security apparatus and the ICRC within the context of their broader monitoring of Afghan detention facilities in general. They, of course, do not report to us.
The Afghan Ministry of Defence has no authority over the NDS, and unlike Dutch and British forces operating in RC south, Canadian Forces made it clear from the outset that their oversight and responsibility for Canadian-captured detainees ceased upon transfer or release.
From my perspective, the time it took to draft and consummate the supplemental arrangement was not due to an unwillingness to improve upon the original transfer arrangement--far from it. We recognized its shortcomings almost from the moment I arrived in Kandahar. Nor was it the result of extensive negotiations with the Afghan government. Rather, it was a consequence of the fierce debate raging in Ottawa between military and civilian officials related to the exact nature of Canada's monitoring regime, given the very real concerns we as Canadian officials had regarding the willingness and intent of the NDS to legitimately abide by the stipulations of any new arrangement. This debate could not have occurred if senior Canadian officials were not fully aware of the plausible risk of abuse faced by Canadian transferred detainees at the hands of the NDS.
Almost from the outset, the supplemental arrangement resulted in what is essentially a two-tiered system, one where the Canadian Forces enjoy an intimate and comprehensive relationship with the NDS on a daily basis related to all aspects of military operations and intelligence gathering, but refuse to wade into the one facet of that relationship where adherence to our international obligations is most at risk, forcing civilian departments, namely DFAIT, to implement an extensive monitoring regime where the military's only role is that of providing transportation to and from the facility, along with the general security that that entails, thus giving the monumental task of monitoring within an inherently secretive institution such as the NDS to a handful of Canadian civilians who are viewed with suspicion and lack the comprehensive relationship with NDS officials that transcends detainee management and oversight.
As the committee has already heard, the creation of the associate deputy minister position at DFAIT responsible for coordinating the Afghan effort, then later moved to PCO upon the establishment of that Afghanistan task force following the Manley panel recommendations, was essential to mitigating many of the previous disconnects that were most evident on the ground in Kandahar in 2006-07, where the Canadian Forces were, and remain, the overwhelming face of our Afghan mission and individuals like myself were too few and often crowded out by the immensity of the task at hand.
I want to thank Mr. Anderson for coming and giving us his perspective, specifically the main perspective, because he is a very key player in coming out and working with the new enhanced agreement he's talking about. This was because the previous agreement, done in 2005 by the previous government--as you rightly pointed out--had a lot of flaws that created a lot of concerns with you, your officials, the department officials, and every one of the Canadians out there.
Well, let me just first go back and say that we are here in a theatre of war. We are not in a peaceful environment; we are in a theatre of war. So I want to commend you. I want to commend the people who have worked hard to ensure that humanitarian law and everything else that Canada is known for is done. You went there and recognized the deficiencies of the 2005 agreement. You diligently worked on that, so let me say to you this. After the 2007 agreement that you and the officials worked very hard on, are you satisfied that the overall situation, the work that you and the people of the department did, met Canada's international obligations?
:
Yes, to my knowledge as well.
I have an affidavit from a court case in the U.K., from someone who had a similar job to yours. The affidavit is quite revealing. It says a lot of the things that you're saying. It in fact says that the NDS does not appear to be of any ministry, nor does it appear to have to be overseen by any constitutional body. I'd suggest that it is not accountable to anyone, save the president. However, even this has been disputed.
There's further testimony going back to Amnesty International conclusions and Human Rights Watch that all say the same thing, that the NDS is implicated in torture, in human rights abuse. These reports were not state secrets. In fact, what this person who worked for the U.K. government and was in the region is saying is that in light of that, there's no way to work with the NDS; they can't be reformed. In other words, we should stop transferring detainees to NDS facilities.
Would you agree with that assessment that we should stop transferring detainees to the NDS facilities in light of the reports, that Human Rights Watch, Amnesty International, and many other institutions have stated that they just can't be trusted?
The rules basically were that I had requested a number of witnesses be put on the short list so that we could get to our business on this first week very quickly, on very short notice.
General Thompson's name was not on that short list, but was on the broader list. When the others were unavailable, we then went to that broader list. It was on the list of witnesses that had been supplied, so I don't want General Thompson to think that he is our second choice to anyone. But we thought there would be other generals available.
We're very pleased that you're able to be here today and provide testimony, and we look forward to your comments.
Thank you, Madame Lalonde.
:
I'll certainly take that as a compliment. I don't feel like I'm on the B-team.
If I could compliment the committee members on their ties and scarves they're wearing for prostate cancer today, I would have dressed up my uniform with one, but I think the sergeant-major would have had another thing to say about that.
[Translation]
Mr. Chair, thank you for inviting me here this afternoon. I am pleased to be here with you today to talk about my experience in Afghanistan.
During my last appearance, we talked about our efforts to build the capacity of the Afghan forces—meaning the Afghan police and army. Since that time, I have held the position of chief of staff of land operations. I am the officer who manages the army's business on a daily basis. It is important for me to say that because, although I work in the heart of our Canadian Forces, I am not involved in the Afghanistan file at this time.
[English]
I thought I would cut to the chase and speak directly to the issue of detainees from my time as commander of Task Force Kandahar from 14 May 2008 until 19 February 2009.
Let me state up front that I made certain that my commanding officers and my headquarters clearly understood that from my point of view there were three principal risks of strategic failure. When I speak of strategic failure, l'm talking about matters that if left unaddressed could very well result in defeat. I share these three risks with you cognizant of General Leslie's words to me prior to departing for Kandahar, when he said, and I quote: "Denis, you won't win this war in nine months, but you can certainly lose it.” We did neither.
So with respect to those three strategic risks, first and foremost, large friendly force casualties--and by that I mean Canadian and U.S. casualties, because I did have U.S. soldiers under command--would be seen as a point of strategic failure. That doesn't mean that we avoided the fight by sitting inside our forward operating bases--quite the contrary. It does mean that mitigating tactics needed to be disseminated and practised conscientiously, such as those to counter the ever present improvised explosive devices. Nevertheless, we were at war, and during my command tour the mission suffered 25 who were killed in action and numerous wounded. There isn't a day that passes that I don't think of the real soldiers behind those numbers.
Second were civilian casualties. These are often referred to, antiseptically, as collateral damage. Obviously civilian casualties are to be avoided by relying on the considerable discipline and judgment of our Canadian soldiers--discipline and judgment that they apply day in and day out in Kandahar. Here, too, we were not without incidents, due to the complex nature of the environment. It saddened me deeply to learn of the deaths of innocents in Kandahar province. In each of these circumstances the incidents resulting in civilian deaths were investigated by the Canadian Forces National Investigation Service in concert with the Afghan National Police. Bereaved family members were always handled with respect.
The third strategic risk, and that of most interest to the committee today, is the matter of detainees. By the time I arrived in Kandahar as commander, the detainee process was a well-developed, mature system. The tactics, techniques, and procedures for the taking of detainees were well understood at the soldier level, and they were well rehearsed during our work-up training. There was, and is, a task force standing order that covers the handling and transfer of detainees. From the point of capture to their arrival at the detainee transfer facility in Kandahar airfield, the care and movement of detainees was handled in strict adherence with the standards required for prisoners of war under the third Geneva Convention.
I believe the procedure of interest to this committee is under what conditions detainees were transferred to Afghan authorities, in this case the NDS or National Directorate of Security. Within my headquarters there was a committee entitled the commander's advisory group on detainees, which was made up of four Canadian Forces officers and one DFAIT officer. Those Canadian Forces officers were my chief of operations, chief of intelligence, Afghanistan detainee officer, and they were all advised by the task force legal officer. The DFAIT officer was my political adviser. They would see me, or my deputy if I was not in camp, in order to have the file reviewed and to determine if the detainee should be retained, released, or transferred within the next 24 hours. It was a daily process.
The decision to transfer to the NDS was based on whether or not I believed, first of all, that there was sufficient evidence to link the detainee to the insurgency. If the detainee was to be transferred, it would only occur if I was satisfied that, quote, "there are not substantial grounds for believing that there exists a real risk the detainee would be in danger of being subjected to torture or other forms of mistreatment if transferred".
This judgment was based on a review of current reports completed by the responsible DFAIT officer based at the PRT. You just heard from Cory Anderson on how that mechanism worked.
In my time there were no negative reports about the NDS facility in Kandahar City. In general, we tried to not hold on to detainees beyond 96 hours, and were sure to inform Canadian Expeditionary Force Command if that were the case. Nevertheless there were always exceptions.
We had two cases of detainees who were suffering from limited mental capacity. The challenge was to find someone responsible to take care of them, because neither of them met the test for transfer. In one case we found the man's family, and in the other case we asked the International Committee of the Red Cross to look after him.
If a detainee was wounded he was accorded the same medical care as our soldiers. If he was identified as an insurgent and was therefore an eventual transfer case, he remained in the transfer facility while he convalesced. In one case a detainee convalesced in our care for four months.
During my command tour we took a number of detainees, released three-quarters of them, and transferred about a quarter of them to the NDS. In each case I was convinced that the transfer occurred after appropriate due diligence had been exercised to ensure detainees were not entering a facility where they would be subject to abuse or torture.
[Translation]
I hope I have been able to answer your questions on the detainees. If not, I would be happy to answer any further questions you might have, keeping in mind that I left Kandahar 13 months ago.
Thank you, Mr. Chair.
:
That is very kind. Thank you.
[English]
Again, there are really two conditions.
First, if there isn't sufficient evidence to link a guy to the insurgency, then there's no point hanging on to him. You have to remember that the conditions under which people are taken off the battlefield are not exactly black and white. It isn't like making an arrest here in Ottawa or something. In the hurly-burly of combat, when you pick somebody up, you may detain a guy because he has gunshot residue on his hands or something of that nature. Then, when he comes back to the transfer facility and he's interviewed by the military police, we determine whether or not there's any evidence that would link him to the insurgency. That's the crime, if you would. That's what we're trying to root out.
The NDS, based on that evidence, will prosecute him inside of the Afghan justice system. If he ends up being a long-term prisoner, he ends up, as was the case for many of our people, in Sarposa prison. I haven't spoken about that because that's a completely different project.
It's almost like you have the county jail--that being the NDS facility in Kandahar City--and then down the street you have the prison, which is where you go after you have been prosecuted if you're found guilty.
So that's number one. If there isn't enough evidence, there's no point in turning the guy over.
I can talk about these poor folks of limited mental capacity. These are people who get wired up by the Taliban--who aren't nice, I think we all appreciate that--with bombs. The Taliban will wire up a guy who happens to be not completely with it and then walk him toward you so that they can detonate him by remote control. When we happen to defuse the thing, we take the guy in as a detainee. We have no idea who he is until we get him back and question him.
We realized, in at least two of these cases, that these guys weren't entirely with it and that they needed to be turned back to their families.
Point number one, then, is that if there is no evidence to link to him to the insurgency, there is no point transferring him--or keeping him, for that matter.
The second element is that of course we wouldn't transfer people if we knowingly knew that there would be--
[English]
But now I'm talking about the whole-of-government team. It is Canada's responsibility to follow the prisoners through the Afghan system. I would assist, as much as possible, with my whole-of-government partners.
In the case of following the detainee, at least where we were in the south, that meant providing the transportation in this hostile environment to my colleagues from Foreign Affairs so that they could get to these places to visit them--including the Sarposa prison, by the way, which hasn't really been discussed. We facilitated the movement of correction services officers to the Sarposa prison, CIDA folks to rebuild the walls, and that kind of thing.
So while it wasn't people in uniform physically doing the suivi, it was members of this whole-of-government team.
:
Again, I restrict my comments to the time I was in command.
I went out of my way to cultivate a positive environment, and so did Elissa Golberg. We created an integrated headquarters and an integrated team. I can't speak for what went on prior to me or what came after. I can tell you that although it wasn't always sweetness and light, there were certainly lots of heated discussions about the way things could go. We always arrived at a compromise that worked for both of us, so I think the relationship wasn't just cordial, it was warm.
With other outside agencies, without telling tales out of school here, just as I had a weekly provincial security meeting with the governor and all the relevant Afghan security actors, at the regional level I would meet with my general, General de Kruif, the Dutch commander. Elissa would be there because we were a team. On several occasions the United Nations representative would be there and the guy who ran the office of the International Committee of the Red Cross. I knew who he was and I had an open-door policy to him. That's all I can say, because they need to protect their neutrality.
:
No. They're very strong. I wasn't concerned about their strength; I'm concerned about the accountability of the NDS, as has been suggested, to actually be accountable to anyone other than themselves or to a minister who isn't really accountable constitutionally.
The government will have everyone believe that we're trying to set up an equal equation between Canada and Afghanistan. Please. We don't go there. What we do need to know, though, is that when people come forward and say they have concerns about NDS, and when we look at NDS' track record when it comes to detainees--and I understand what you're saying about all the other information and working with them in partnership, but on detainees there seems to be a picture being painted, not just by Mr. Anderson but by others, that when it comes to detainees and the NDS, it's not a great combination.
I'm just wondering if you had heard that, and if you have, if you decided this was something that government should know about, to say, you know what, this agreement doesn't really work when it comes to our handing over detainees to the NDS.
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They will receive an entire package on PW, or prisoner-of-war handling, because this is part of general training. It's not something that you just tack on because you're going to Afghanistan.
The training would go through all the rights that a prisoner of war has under the laws of armed conflict and the third Geneva Convention, and then how you handle them, how you actually restrain them with flexicuffs, all of that technical stuff. Detainees are introduced at every step of the training when you're doing your collective training. When you start to move from your platoon, company, battalion, brigade training, there are always prisoners--as we call them, “PWs”, or “detainees” in the Afghan context--introduced in the scenarios, in order to practise not just the point of capture stuff, but how to take that guy and move him all the way back through that long logistics train and get him to what in a general war setting is the brigade prisoner cage, but in an Afghan setting is the detainee transfer facility at Kandahar airfield.
There are a lot of parallels between our general training and what we had to do for Afghanistan, and from a soldier's perspective, they're almost identical. The wrinkle comes in what do you do with the guy after he's in that detainee transfer facility?
:
Very quickly, this is actually the nub of what we're spending our time on at this committee right at the moment. We have allegations...
I'm sorry, General. I recognize that I'm making a statement here that you might not be able to respond to in your professional capacity. We are dealing here with allegations from a politically motivated opposition, who are trying to say the government has been doing something that borders on war crimes, or are war crimes. You have made the statement that you would not, and cannot, do anything that would be contrary, or you would not be able to respond to an unlawful command.
I further cannot imagine that any of the advisers to you or to the government would countenance that, either. In other words, there is a lot of speculation that my friends have volunteered to disseminate and to bring to the fore. There's a whole pile of information just spinning around here, but when we get down to the nub of it, we have professional people like yourself, a professional army, and professional bureaucrats doing a job for Canada, and with the full knowledge and consent of the Canadian government. The two are the same thing.
Your comment today really underscored this whole issue that the army will not do anything that would be in response to an unlawful command. That's been very helpful. I thank you for that.
First, I want to welcome General Thompson and apologize for my absence. I was in the other theatre of operations, leading a special mission.
Some hon. member: Oh, oh!
Mr. Claude Bachand: I read what you said about what can constitute evidence of a link to the insurgency. I understand that. I also saw that you frequently reviewed DFAIT reports when making your judgment. You recognize that you have a responsibility. When you transfer a detainee who is linked to the insurgency, you must ensure that there is no risk of torture, because you know that you could get your knuckles rapped otherwise.
BGen Denis William Thompson: Yes, exactly.
Mr. Claude Bachand: I want to hear what you think of Colonel Juneau and General Laroche. That question was asked today. A few months ago, this is what Colonel Juneau said:
[English]
“The frequency of detainee visit reports is of concern to me,” wrote the senior officer, who required post-handover inspection updates to ensure he wasn't transferring detainees to a “real risk” of torture.
[Translation]
A little further on, General Laroche says this:
[English]
...it is considered essential that we gain better visibility of the situation.
[Translation]
You seem to be saying that you did not receive any negative reports. Did you receive many reports? That may be the issue. Juneau and Laroche say that there were not enough reports and that, in their opinion, it was dangerous to transfer detainees. You arrived a few months later; did things change? Did you see those reports?