Backgrounder - Commission Report on the Conduct of Canada’s Military Police in Afghanistan
Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) filed a complaint with the Military Police Complaints Commission on June 12, 2008 that alleged a failure on the part of eight Military Police officers to investigate the Canadian Task Force Commanders in Afghanistan for directing the transfer of detainees in the face of known risk of torture. The time period covered by the complaint was May 3, 2007 to June 12, 2008.
After reviewing many documents and hearing from 40 witnesses, including the Military Police officers themselves, the Commission concluded that the eight individual subjects of the complaint did not breach a duty to investigate the Task Force Commanders. While the conduct of each of the subjects was considered individually, a number of common themes emerged:
- None of the subjects received a direct allegation of complaint during the timeframe of the complaint that the orders to transfer detainees could be illegal.
- The subjects reasonably believed the Government of Canada and the Commander were taking reasonable steps to guard against potential mistreatment of detainees following transfer.
- The subjects reasonably believed that the Task Force Commander’s actions demonstrated a willingness to stop transfers (in April 2007 and November 2007) where necessary despite the operational obstacles this created.
- The subjects did not have access, at relevant times, to important information about the post-transfer process, such as the site visit reports and C4 traffic pertaining to detainees. In the absence of this information in light of their understanding of the Commanders’ conduct and decision making process in response to allegations of abuse, it was reasonable for the subject MPs not to harbour suspicions whether the Commanders were illegally ordering detainee transfers.
- While the subjects had information indicating detainee mistreatment was a serious concern in Afghanistan, this was reasonably weighed against the information that the Commanders had ceased transfers when allegations of mistreatment came out, such as after the Globe and Mail articles that were published in April 2007, and that the Government of Canada and the CF were taking measures to mitigate the risk of mistreatment post transfer by improving the post-transfer monitoring regime over time.
- Many of the subjects believed or knew the Task Commanders were getting appropriate legal advice on the propriety of transfers, something that could reasonably have assuaged concerns about the legality of the transfer orders.
While the Commission dismissed the complaint against the eight individual subjects, the Commission did find there were problems with a lack of continuity of knowledge, accountability and information sharing within the Military Police. The Commission Report also discusses in detail the procedural obstacles experienced by the Commission in conducting its investigation.
The Commission made four recommendations in its report. Two of the recommendations are designed to improve the quality of policing carried out by the Military Police, while two propose improvements to the hearing process.
The Commission recommends that the Canadian Forces Provost Marshal (CFPM) implement measures and standards to ensure that MPs deployed during future conflicts are provided the necessary baseline information to be fully educated on potential policing issues stemming from the previous rotation. In order for the MP units in theatre to perform as a seamless policing unit, this baseline information should include:
- End of Tour reports provided to the incoming Task Force Provost Marshal (TFPM) and National Investigation Service Detachment Commander before or soon after they arrive in theatre;
- A brief summary of on-going investigations and investigations completed in the previous rotation;
- A brief summary of all applicable orders and/or directives particularly applicable to the MP in theatre, such as technical directives and theatre standing orders;
- Pre-deployment training on the humanitarian and human rights situation and risks in theatre, and how this might impact on MP policing duties and expectations;
- Information on potential policing issues for the incoming MP units, based on the policing environment in the previous rotation and any information available to the CFPM; and
- Given the sensitivity and mission critical importance of detainee issues, an assessment of potential policing issues relative to the treatment and transfer of detainees in theatre, and a briefing on any current or past investigations into this or related subject matter.
The CFPM should ensure this information is made available to any MP for whom it is relevant to their duties, and in particular the Canadian Expeditionary Forces Command Provost Marshal (CEFCOM PM), the Commanding Officer of the National Investigation Service (CO NIS) and the TFPM.
Rationale for the recommendation
The Commission was struck throughout the hearings by evidence indicating a lack of continuity of knowledge for the Military Police from one rotation to the next. This is illustrated by the following examples:
- MP knowledge about the human rights situation in Afghanistan, and in particular, the risk to detainees post-transfer, varied from one MP to the next and from one rotation to the next. The knowledge of individual MPs appears to have depended on whether a particular MP showed the initiative to inform him or herself on an issue.
- One MP testified that he felt he had no obligation to examine the conduct of personnel during the previous rotation unless there was a specific complaint or a referred file.
- There was a serious disconnect about an ongoing and important investigation into detainee matters in Afghanistan from one detachment commander of the Canadian Forces National Investigation Service (CFNIS) to the next.
- Knowledge of previous suspensions of transfers of detainees varied widely among MPs. Knowledge of Federal Court proceedings into these matters, and about the complaint filed with the Military Police Complaints Commission also varied widely.
In order for an in-theatre police force to function effectively, it must have a degree of continuity of knowledge from one rotation to the next.
The situation in Afghanistan was analogous to the police officers of a local detachment or city police force changing entirely every six months without taking serious measures to share intelligence and knowledge on ongoing investigations with the newcomers.
To allow MPs to function at their optimum level of awareness and diligence, or close to it, there must be a robust process to ensure the transfer of theatre specific policing knowledge from one rotation to the next.
The Commission recommends that the Canadian Forces Provost Marshal review the MP reporting structure for all military missions, in theatre and at the Canadian Expeditionary Forces Command (CEFCOM), to address the problem of information sharing on policing matters. The goal should be to provide a greater degree of MP command oversight in relation to policing matters in theatre.
Rationale for the recommendation
The Commission identified serious problems with reporting, accountability and information flow from MPs in theatre up through the technical chain to the Commanding Officer of the CF National Investigation Service and the CFPM. It appeared there was a “
silo” effect and information about what the military police were doing tended to stay within the chain of command in Afghanistan or at CEFCOM, and only intermittently made its way up the technical chain to the CFPM.
The following is an illustrative list of these problems:
- The CFPM was not aware that detainee transfers had ceased until long after the fact, nor did he learn until much later about the fact that implements of torture had been found during the site visit that led to the stoppage.
- No information went through the technical chain about the CEFCOM investigation/fact-check into the Graeme Smith Globe and Mail articles, even though this information would clearly have been of significance to some of the NIS’s investigations.
- The CFPM was not aware that from January to May 2007 significant discussions were occurring at CEFCOM about the role that MPs would play in the detainee process and the degree to which they would be the repository of information stemming from that process. This was despite the fact the Canadian Expeditionary Forces Command Provost Marshal (CEFCOM PM) was consulted on this question during those months.
- At one point in early 2007, the chain of command was advised that the military police were not in a position to assist with post-transfer monitoring, whereas later in 2007, the CFPM was saying just the opposite to the Vice Chief of the Defence Staff (VCDS) when asked his opinion about a potential role for the MP post-transfer. There appears not to have been a coordinated MP position on this issue.
It appeared to the Commission that military police involved with in-theatre matters, at CEFCOM and in Afghanistan, had no guidance as to when they should be ensuring that information with potential policing applications made it up the military police chain of command for assessment and guidance as to the appropriate MP response.
MPs in theatre cannot always be expected to maintain a comprehensive overview of trends or developments which may require their attention. Because of this, the CFPM or his designates should become the central repository of all information relevant to the execution of deployed MPs’ essential policing duties so that they can be provided with proper guidance.
The Commission recommends that the Chief of the Defence Staff and the Canadian Forces Provost Marshal review the process sections of this report in detail with a view to eliminating barriers to efficiently and effectively conducting future public interest hearings, and developing a cooperative approach to document production, witness access, and national security issues. Such an approach would save costs, expedite hearings, and help ensure the Commission is able to properly fulfill its mandate.
The Commission recommends that the Minister of National Defence take steps to cause the addition of the Commission by the Governor in Council to the schedule of designated entities as prescribed by section 38.01(8) of the Canada Evidence Act. This would allow the Commission to more effectively obtain information relevant to the discharge of its statutory mandate of providing independent oversight of military policing while at the same time maintaining strict control over any information the disclosure of which has the potential to negatively affect Canada’s national security interests or international relations.
Rationale for the recommendations 3 and 4
A significant portion of the main body of the Report is devoted to describing in great detail the serious obstacles encountered in obtaining necessary documentary disclosure and witness testimony during the course of the hearings. These obstacles included the following:
- The Government of Canada refused to look at options to expedite the national security review process (pursuant to s. 38 of the Canada Evidence Act), such as negotiating a solution with security-cleared Commission counsel.
- In the Commission’s opinion, the Government took an excessively strict approach to national security matters in its interpretation and application of s. 38 of the Canada Evidence Act.
- The Government initially refused to provide any redacted documents to the Commission until all of the documents outstanding had been vetted. Overall, the Commission faced significant delays and obstacles related to the Government’s approach to the application of s. 38 of the Canada Evidence Act. The Government’s position on redactions of particular documents changed from one point in the process to the next. The process was time-consuming and could have been avoided, or at least shortened, had the Government adopted a more cooperative posture. The Commission was left with the impression that s. 38 became a litigation tool throughout these proceedings, whose purpose became at least as much to delay proceedings as to protect truly sensitive information.
- Significant delays in documentary disclosure occurred, and in many instances, there were outright refusals to act on document requests. The most glaring example of such delay was the fact that, from March 2008 until late 2009, a period of almost 21 months, the Commission did not receive a single new document, despite repeated requests.
- The Commission encountered on-going disputes over the relevance of documents and unilateral determinations of relevance by Government officials based on opaque screening criteria.
The Government’s approach of making unilateral determinations of relevance when deciding when to produce, or not to produce, documents in response to the Commission’s summons appeared to challenge the Commission’s independent authority to decide for itself what documents and things it considers necessary to the full investigation and consideration of the matters before it. Justice de Montigny of the Federal Court of Canada confirmed the important principle of the Commission’s independence in his September 29, 2011 decision where he said: “
... it is for the Commission, not for the government to determine ultimately what documents are relevant to its inquiry. If it were otherwise, the Commission would be at the mercy of the body it is supposed to investigate. This was clearly not the intent of Parliament.” Unfortunately, the Commission came to believe that Parliament’s intention was being confounded with resulting cost and delay to the process.
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