Hearing Transcript - April 13 2010

1 Military Police Complaints Commission
2
3
4 AFGHANISTAN PUBLIC INTEREST HEARINGS
5 held pursuant to section 250.38(1) of the National Defence
6 Act, in the matter of file 2008-042
7
8
9 LES AUDIENCES D'INTÉRÊT PUBLIQUE SUR L'AFGHANISTAN
10 tenues en vertu du paragraphe 250-38(1) de la Loi sur la
11 défense nationale pour le dossier 2008-042
12
13 TRANSCRIPT OF PROCEEDINGS
14 held at 270 Albert St.
15 Ottawa, Ontario
16 on Monday, April 13, 2010
17 mardi le 13 avril 2010
18
19 VOLUME 5
20
21BEFORE:
22
23Mr. Glenn Stannard Acting Chairperson
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25Mr. R. Berlinquette Commission Member
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27Ms. R. Cléroux Registrar
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29
30APPEARANCES:
31
32Mr. Ron Lunau Commission counsel
33Ms. Catherine Beaudoin
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35Mr. A. Préfontaine For Maj Bernie Hudson, Maj
36Mr. V. Wirth Michel Zybala, Maj Ron Gribble,
37Ms. H. Robertson LCol (Ret'd) William H. Garrick,
38 CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner
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40Ms. Grace Pastine For Amnesty International and
41Me S. Jodoin ForB.C. Civil Liberties Association
42
43Mr. M. Wallace For Capt(N) (Ret'd) Moore, CFPM
44
45Mr. Owen Rees For Mr Richard Colvin
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47 A.S.A.P. Reporting Services Inc. © 2010
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49 200 Elgin Street, Suite 1105 333 Bay Street, Suite
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51 Ottawa, Ontario K2P 1L5 Toronto, Ontario
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53 (613) 564-2727 (416) 861-
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5 INDEX
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8 PAGE
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11AFFIRMED: RICHARD COLVIN 1
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13 Examination by Mr. Lunau 1
14 Cross-Examination by Ms. Pastine 164
15 Cross-Examination by Mr. Wallace 183
16 Cross-Examination by Mr. Préfontaine 190
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1 Ottawa, Ontario
2--- Upon resuming on Tuesday, April 13, 2010
3 at 9:05 a.m.
4AFFIRMED: RICHARD COLVIN
5 THE CHAIR: Thank you. Please be
6seated.
7 Good morning. Mr. Lunau.
8 MR. LUNAU: Good morning, Mr.
9Chair. Our next witness will be Mr. Colvin,
10Richard Colvin, if we could bring him in.
11 THE CHAIR: And we have one new
12counsel with us today?
13 MR. REES: Good morning, Mr.
14Chair. Owen Rees, I am counsel to Mr. Colvin.
15 THE CHAIR: Thank you.
16--- Richard Colvin enters hearing room.
17EXAMINATION BY MR. LUNAU:
18 Q. Good morning, Mr. Colvin.
19 A. Good morning.
20 Q. I understand that you have
21been affirmed?
22 A. Yes, I have.
23 Q. Okay. Now, I would like to
24begin by reviewing the positions you've held at the
25Department of Foreign Affairs and your role in
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1Afghanistan. I understand that you have been a
2foreign service officer with the Department of
3Foreign Affairs since April 1994?
4 A. That's correct.
5 Q. And you have had five
6overseas assignments in Sri Lanka, Russia, the
7Palestinian territories and Afghanistan?
9 Q. And you presently are the
10Deputy Head of the Intelligence Liaison Office at
11the Canadian Embassy in Washington?
12 A. Yes.
13 Q. Okay. And I also understand
14that your assignment in Afghanistan was your third
15in a country confronted with an insurgency?
17 Q. And that you served in
18Afghanistan from late April 2006 to early October
192007?
20 A. Yes.
21 Q. And your first capacity in
22Afghanistan was as the senior DFAIT representative
23at the Provincial Reconstruction Team headquarters
24in Kandahar City?
25 A. Yes.
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1 Q. You were there for a period
2of approximately two months?
4 Q. And then you became head of
5the political section and chargé d'affaires at the
6Canadian Embassy in Kabul?
7 A. Yes.
8 Q. Now, Mr. Colvin, you
9previously provided an affidavit to the Commission,
10which is in the blue book in front of you, and it's
11been filed as Exhibit P-14. And it is tab 14.
12 A. Hmm-hmm.
13 Q. In paragraph 13 of your
14affidavit, you describe your position at the
15Provincial Reconstruction Team as political
16director.
17 Could you tell us what that
18position entailed?
19 A. Sure. The political director
20was the senior. At the time, it was the only DFAIT
21officer in the PRT, and the PRT at the time was, I
22think it is fair to say, the whole-of-government
23vehicle for Kandahar, meaning that every government
24department represented in Kandahar had officials or
25staff at the PRT. And those were intended to
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1mobilize all the different aspects of Canadian
2government power in the interests of stabilization
3and reconstruction.
4 So in that framework, there is a
5division of responsibility. CIDA implemented its
6projects. The RCMP and other civilian police were
7training the Afghan police. The military elements
8of the PRT had a range of functions from civil
9military engagement to intelligence and some forms
10of engagement with Afghan leaders.
11 And we did the rest, and also
12tried to understand how the different pieces fit
13together. So it was a lot of engaging with
14Afghans, with local officials, with the governor,
15with provincial council members, with
16representatives of non-governmental organizations,
17with internationals, for example, from the United
18Nations, with poppy eradication officials.
19 We talked to the military, talked
20to the police, and tried to build a picture of what
21was happening in Kandahar.
22 Then as part of that
23responsibility, we would receive instructions from
24DFAIT headquarters and report back to DFAIT
25headquarters and other parts of the Canadian
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1government. So a lot of the function was gathering
2information, feeding that information back to
3relevant parts, excuse me, of the Canadian
4government and acting in the field to try to fix
5some of these problems.
6 Q. Did the Canadian Forces have
7a representative at the PRT?
8 A. Yes. There was at the time
9about 80 uniformed soldiers. The commander of the
10PRT was a Lieutenant-Colonel. He had a deputy, who
11was a major, and then there was a range of other
12soldiers in different -- different elements. They
13weren't combat forces, per se, but there was, for
14example, a quick reaction force which would be sent
15out from the PRT if there had been an IED attack.
16There would be civil military engagement officers,
17as I mentioned. There was maybe five or six
18different components of the PRT itself.
19 Q. Okay. Now, could you tell
20us, in terms of PRT detainees that were taken by
21the Canadian Forces, to what extent did your
22mandate, your personal mandate at the Provincial
23Reconstruction Team and later at the embassy in
24Kabul, include reporting on detainee issues?
25 A. At the PRT, it wasn't an
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1explicit part of my mandate, but my mandate was
2very open-ended. I wasn't really given specific
3marching orders before going to the PRT, so it was
4really left to my discretion to identify what was
5important, what Ottawa needed to know, and, if
6there were problems, what those problems were.
7 So detainees was one of those
8issues that seemed to be problematic, and so I
9focussed on it at the PRT. In Kabul, detainees
10were more an explicit part of the mandate, and we
11looked at it in the embassy in Kabul from two
12different directions. One was a human rights
13direction and one was what we call pol/mil, pol/mil
14being a sort of diplomatic function, the interface
15between the military and diplomacy, if you like.
16 That would include everything from
17police reform to deploying Afghan army soldiers to
18the south, to detainee issues, anything -- civilian
19casualties, anything that fit within that sort of
20general basket of issues.
21 Q. Now, you said in paragraph 21
22of your affidavit, you said that for the purposes
23of the flow of information, there is no separation
24between DFAIT and DND. Can you explain what you
25meant by that?
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1 A. Yes. On a very simple level,
2it meant that we sent them reporting and they sent
3us reporting.
4 More specifically, we had two ways
5of -- actually, I guess three ways of sending
6information out. Two of those were on the
7classified system, which is called a C4 system, and
8the third way would be just using regular emails on
9an Internet-based system.
10 Most messages would have gone on
11the C4, and there you could either just file off
12little emails, informal emails, to anyone who had
13an address, but more typically we would write
14formal reports and send those off, and those could
15go to any division, branch or individual in DFAIT,
16and also to a range of addresses of other
17government departments.
18 So DND had, you know, maybe 12 or
1915 different addresses on their address book, and
20so we could send our messages to any or all of
21those 12 to 15. CIDA has one address, and I think
22RCMP had one address, but in DND you could choose
23who to send the information to.
24 And they would receive these over
25C4 terminals in the appropriate places, and those
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1messages would get passed on to DND.
2 Q. Okay. Who would decide if an
3email was going to be sent? And we will come to a
4number of emails that you sent in a moment, but who
5would decide who the addressees would be?
6 A. That would be the drafter of
7the email. If you had a structure like in Kabul
8where maybe the head of mission is signing off,
9they may add some names or take some names out.
10But, typically, you would decide yourself who was
11an appropriate recipient who needed to get this
12information. It would include, for example,
13relevant embassies around the world.
14 So, you know, on Afghanistan
15issues, we would typically copy our mission in
16NATO, our mission in London because of the link
17with the UK, our embassy in the Hague because of
18the Dutch connection.
19 So you would sort of sit and think
20who might be interested in this, and then you would
21put them on the distribution list.
22 Q. Now, before you went to
23Afghanistan in April of 2006, did you have any
24previous experience or background with Afghanistan?
25 A. No, none whatsoever.
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1 Q. Okay. So when you first
2arrived there, what did you do to educate yourself
3about the issues with the government mission in
4Afghanistan?
5 A. Well, I began trying to meet
6as many people as I could. We were limited in our
7ability to get out. After my colleague, Glynn
8Barry, was killed, travel restrictions became very
9strict, so you had to petition headquarters for
10permission to leave the base, which was granted,
11but you had to give them a very solid reason.
12 But, fortunately, a lot of Afghans
13would come on to the PRT. So there was a constant
14flow of all kinds of Afghans, and so I would meet
15with them. I spent a lot of time with our
16military. We had an operations centre at the PRT.
17I spent time with non-governmental officials who
18would also come. We had a regular meeting each
19week which we hosted at the PRT with
20representatives of the international community in
21Kandahar, with the UN.
22 Yeah, we had a good range of
23sources, and we also had, without getting into
24details, intelligence information which was also
25available in large quantity, and of course
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1diplomatic reporting, so reporting coming from
2Kabul, from other embassies around the world,
3reports from the military, but mostly it was
4face-to-face contacts.
5 Q. Okay. Within the
6two-month-or-so period of time you were at the PRT,
7did you get out and have meetings with, I guess,
8first of all, key people either in Kandahar or the
9NDS or other agencies with whom the Canadian
10government was working?
11 A. Yes.
12 Q. And can you name some of
13those for us?
14 A. Sure. I met many times with
15the Governor of Kandahar, Asadullah Khalid. I met
16with the deputy director of the NDS. I met with a
17number of provincial council members, you know, the
18heads of department, like Department of Education.
19Yeah, those are some of the more sort of senior
20people, and, you know, top policemen, I used to
21meet with them, army officers sometimes.
22 Q. Okay. While you were at the
23PRT, did you visit any local prisons?
24 A. I did, yes.
25 Q. And which facilities?
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1 A. I went to just one. It was
2Sarpoza Prison, which is the major prison in
3Kandahar. It is a regional facility. It holds
4several hundred people, and it is part of the
5Ministry of Justice.
6 Q. Now, when you say it is part
7of the Ministry of Justice, was that an NDS
8facility, or no?
9 A. My understanding is that most
10of it is Ministry of Justice, but that there is one
11element within it which is run by the NDS.
12 Q. Now, in the course of the
13meetings that you had in your visit to Sarpoza, how
14long did it -- first of all, did issues with
15respect to detainees begin to come to your
16attention?
17 A. Only indirectly.
18 Q. Okay.
19 A. Essentially, it was a site
20visit to look at the facility itself, what
21condition it was in, how many people were there,
22what was missing in the view of the warden and
23staff. The idea was that Canada might help
24renovate the facility, and the context of this was
25an initiative by one of our allies in the south --
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1actually, two of our allies in the south, to
2possibly create either a new facility to hold ISAF
3detainees or to renovate one Afghan facility or
4part of an existing Afghan facility.
5 And the idea was that we would
6then bring it up to international standards and
7help manage it, embed corrections officers and
8management and human rights people inside the
9facility to take care of our collective pool of
10detainees.
11 Within the course of the visit, I
12didn't meet any detainees at Sarpoza. We were
13given a tour of the site. They said, you know, We
14would like X, Y and Z, you know, more medicines,
15vocational facilities to be rebuilt, and there are
16cracks in the walls. It was that kind of tour.
17 Q. Okay. What about issues of
18notification of transfers of detainees by the
19Canadian Forces? During your time at the PRT, did
20notification issues come up?
21 A. Yes, they did.
22 Q. And can you -- how long did
23it take before those issues came to your attention?
24 A. About three weeks.
25 Q. Generally, what were the
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1notification issues that arose?
2 A. Well, the issues arose -- so
3as follow-up to the visit to Sarpoza, I realized
4from the trip it was impossible to tell what
5conditions were like for detainees, and so that was
6a missing piece of the puzzle.
7 So to try and get more information
8on that, I contacted the local office of the
9International Committee of the Red Cross, the ICRC.
10 The ICRC told us they were unable,
11because of confidentiality, to speak to the issues
12of conditions of detainees. However, they did have
13some complaints about how Canada was engaging with
14the ICRC, specifically complaints about
15notification.
16 Q. And were these complaints
17about notification a concern to you?
18 A. Yes.
19 Q. Why?
20 A. Well, there were two aspects
21to it. One was that the substance of the issue
22itself was troubling, and the other troubling
23aspect was how, I would say, upset the Red Cross
24were, which I was surprised at, given how important
25the Red Cross is as a partner for Canada. They
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1were quite forceful in their comments on what was
2not working.
3 And, specifically, what was not
4working was that -- there were two main issues.
5One was timeliness of notification. Notification
6was coming very late. Sometimes weeks and even
7months would pass before we would notify them after
8transferring a detainee.
9 Secondly, the information we were
10passing to the ICRC was inadequate, often just one
11name and maybe a village, but it was not enough for
12the ICRC to actually find these detainees.
13 So that was their main complaint,
14but because of these two problems, late
15notification, inadequate information, they were
16losing many, if not most, possibly all of our
17detainees and were unable to monitor them.
18 And this was troubling, because
19under, you know, our international laws, which
20provide a basis for Red Cross access, but also, in
21our December MOU, there was a specific provision
22that Red Cross should be able to monitor at any
23time. And obviously they couldn't monitor at any
24time, because we weren't telling them in time, and
25then some -- in many cases they couldn't monitor at
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1all, because they were unable to find our people.
2So it was quite a serious problem.
3 Q. Just bear with me for a
4second, please.
5 A. Sure.
6 Q. If I could ask you to find
7volume 2 in the books on your desk?
8 A. Hmm-hmm.
9 Q. It is called "Main Book For
10Witnesses", volume 2 of 5. And turn to tab 25.
11 A. Sorry, 25?
12 Q. Sorry, tab 22. Now, you
13mentioned the December 2005 agreement. Is this the
14agreement you were referring to?
15 A. Yes, that's the one.
16 Q. Okay. And then there's also,
17at tab 23, a supplement to that arrangement.
18 A. Correct.
19 Q. And at paragraph 2 of the
20supplement, the very last, it says:
21 "In addition to the
22 International Committee of
23 the Red Cross (ICRC) relevant
24 human rights institutions
25 within the UN system will be
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1 allowed access to visit such
2 persons." (As Read)
3 And it also provides that
4representatives of the Afghanistan Independent
5Human Rights Commission and Canadian government
6personnel will have full and unrestricted access to
7any persons.
8 So was that the original
9monitoring regime for detainees who are
10transferred?
11 A. What you just read, Mr.
12Lunau, that's from the -- yeah, the supplementary
13arrangements. So that didn't take effect until May
14of 2007. So up to that point, we were being
15governed by the December 2005 arrangements.
16 Q. I see. So under the December
172005 agreement, who had responsibility for
18monitoring what was happening to detainees after
19they were turned over to the Afghanistan
20authorities?
21 A. Well, it was exclusively the
22International Committee of the Red Cross, which
23is -- the way the arrangement is worded, the
24arrangement seems to confer on the ICRC the right
25-- it says:
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1 "The International Committee
2 of the Red Cross will have a
3 right to visit detainees at
4 any time while they are in
5 custody, whether held by the
6 Canadian Forces or by
7 Afghanistan." (As Read)
8 But the, you know, ICRC's rights
9to monitor, I believe, were also embedded in some
10international frameworks, irrespective of this
11arrangement.
12 Q. So do I understand correctly,
13then, that if there are issues with notification to
14the ICRC, that impaired their ability to follow up
15on the treatment of detainees?
16 A. Right. I mean, in a sense,
17and I am not a lawyer, but it seems to me that what
18we were doing was in fact infringing on a right
19which we have tried to confer on the ICRC. On the
20one hand, we tell them they have the right to
21monitor at any time. In practice, we were blocking
22them from doing that.
23 This reference, for example, "ICRC
24will have a right to visit detainees at any time
25while they are in the custody, whether held by the
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1Canadian Forces or by Afghanistan", no notification
2was given while we still had detainees.
3 Therefore, monitoring Canadian
4Forces' handling of detainees was completely
5impossible, because we didn't even tell the ICRC
6until after they had been transferred, rather than
7on detention, unlike our NATO allies, but even this
8idea that the ICRC can visit detainees at any time
9while they are in custody, that was also being
10prevented because of these consistent delays and,
11in some cases, quite extreme delays in notifying
12the Red Cross, to a point where they were, in many
13cases, unable to monitor at all, because they
14couldn't find our people because so much time had
15passed and because the information we were
16transferring was so inadequate.
17 Q. Okay. Now, the agreement is
18signed by the Minister of Defence and Chief of the
19Defence Staff. You made reference earlier to the
20Afghanistan mission being a whole-of-government
21mission.
22 I am not sure whether I have the
23terminology right, but was this agreement what you
24would call a whole-of-government agreement, or
25perhaps put the matter another way: Who would have
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1been responsible for operationalizing this
2agreement?
3 A. Yes. I am not sure how the
4agreement or the arrangement was drafted and what
5the role of DFAIT was as opposed to DND, for
6example. I have read some accounts suggesting it
7was more DND than DFAIT, but I wasn't around and I
8obviously have no idea.
9 But in terms of how it was
10operationalized, it was, I would say, exclusively a
11DND arrangement and you could even say exclusively
12a Canadian Forces arrangement, but it was
13implemented by them and managed by them with, from
14my point of view, really no input from other
15departments, at least in the field.
16 And even getting information on
17the detainee system was quite difficult for people
18from other government departments.
19 So, in a sense, it wasn't really a
20whole-of-government arrangement in how it was
21implemented and operationalized.
22 Q. Okay. Now, between December
232005 and May 3, 2007, did the operation of this
24agreement run into obstacles or difficulties?
25 A. Could you explain a little
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1more, please?
2 Q. Well, on May 3, 2007 you have
3a supplement to the agreement that changes the
4provisions for monitoring.
5 A. Hmm-hmm.
6 Q. And the Canadian government
7assumes a more direct responsibility. I would
8infer, from that, that something about the December
92005 agreement wasn't working. Otherwise, it
10wouldn't have been changed.
11 A. Yes.
12 Q. Correct?
13 A. Yes.
14 Q. So what -- why wasn't it
15working? What were the kinds of issues that
16emerged?
17 A. I think the main issue was
18the issue of -- well, there were two issues, which
19were related to each other, but were slightly
20different, or different aspects of the same issue.
21 First was the follow-up provision,
22the monitoring provision which, according to
23article 4 of the original agreement, it is the Red
24Cross's job to monitor.
25 That was conceptually badly flawed
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1from the beginning, not because the Red Cross does
2a bad job. As far as I know, they do a very good
3job. They get access. It's a very professional
4organization, and they have been doing this for a
5long time.
6 The problem for us, of course, is
7the Red Cross is forbidden from informing us about
8problems they may identify in Afghan facilities.
9The only people they are allowed to notify are the
10Afghans themselves.
11 In other words, for our purposes,
12it was a source of no information on what was
13happening to our detainees. Therefore, in effect,
14there was no awareness on our part what was
15happening to these people we were handing over, in
16terms of monitors who were reporting back to us.
17 At the same time we were of course
18aware of the patterns of risk facing our detainees,
19which was information we got from a number of very
20credible sources. And so we were certainly aware
21that detainees in Afghan custody, especially in NDS
22custody, especially even in NDS custody in
23Kandahar, in our assessment, which was again based
24on a number of very good sources, detainees were at
25high risk of abuse and torture.
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1 So those were the two problems, I
2would say, the awareness on the ground, in the
3field, that bad things were happening to our
4people, but, at the same time, no mechanism to
5actually follow up on individuals, and, therefore,
6no specific information, if you like, on what had
7happened to Canadian-transferred detainees.
8 Q. Okay.
9 A. So if I could add to that, no
10specific information on individual detainees. We
11had specific information on the pool of detainees,
12if you like, but not on particular people in that
13pool.
14 Q. Could you explain that?
15 A. So our knowledge was kind of
16systemic knowledge, you know, that this category of
17people is facing mistreatment, and that category
18was explicitly Canadian-transferred detainees.
19 MR. PRÉFONTAINE: I'm sorry, Mr.
20Lunau, could you ask the witness to clarify
21whether, when he uses the "we" or "our", it is a
22corporate or regal "we" or "our", because it is
23difficult to follow?
24 BY MR. LUNAU:
25 Q. Who do you mean when you
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1refer to "we"?
2 A. Sure. I would just say our
3kind of protocol is we are supposed to use the "we"
4form, because, you know, we're part of the
5government, speaking on behalf of the department
6or, in this case, the PRT, but I could use the "I"
7form.
8 You know, the reality was, though,
9it was just one DFAIT person in the PRT at the
10time, which was me. So in that sense, it was an
11"I", but to the extent I was part of the PRT -- it
12was a collective leadership and we shared
13information among ourselves -- it was also a "we".
14I think that information was widely shared within
15the PRT, and when we sent messages out on these
16issues, it was a collective product, in that sense
17the royal "we" rather than just me, personally,
18conveying information.
19 Q. We will come to some of your
20emails in a minute, but before you sent out your
21email reports that are in the productions, did you
22consult with our members of the PRT about the
23content of those emails?
24 A. Yes, I did.
25 Q. And, in particular, the CF
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1representative, Major Liebert?
2 A. Yes, that's correct.
3 Q. Did he agree with those
4emails?
5 A. He did. I mean, he helped
6draft portions of those emails. But of the two
7emails sent out from the PRT on detainees, one I
8co-wrote with Major Liebert, who was the deputy
9command of the PRT, and the other one was sort of a
10collective product of myself as the DFAIT
11representative, Major Liebert as the DND
12representative, and Superintendent Wayne Martin of
13the RCMP.
14 So one report was signed off by
15two of those and the other by the three of us.
16 Q. So now I think you were
17starting off with an explanation that while you
18were at the PRT, the kinds of issues that came to
19your attention were systemic issues?
20 A. Yes, on this issue, on the
21question of detainees, general detainees, and the
22information we had spoke to the pool of people. It
23wasn't, you know, that 'Abdullah' has been
24mistreated. It is that the group of detainees
25transferred by Canada were vulnerable to
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1mistreatment or were being mistreated.
2 Q. And without disclosing
3anything that has been redacted from your emails,
4how long after your arrival in Afghanistan did
5warnings emerge to you that there was this systemic
6risk to detainees?
7 A. One month.
8 Q. Within a month?
9 A. So by the end of -- I arrived
10at the very end of April, and by the end of May I
11had that information.
12 Q. Okay. And did you -- again,
13without disclosing anything that's been redacted,
14did you consider that that information was
15credible?
16 A. Yes, very credible.
17 Q. Again, without disclosing
18anything that has been redacted, is it your
19evidence that this systemic risk of mistreatment of
20detainees was communicated to CEFCOM headquarters
21and to Task Force headquarters in Kandahar?
22 A. Yes.
23 Q. Would that include the period
24of time before the May 3, 2007 agreement?
25 A. Yes.
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1 Q. Would it also include the
2time after the May 3, 2007 agreement?
3 A. Yes.
4 Q. And is it your evidence that
5this risk was known to these headquarters as a
6result of your own reports?
7 A. Yes. And there were other
8reports, too, from other sources which were
9conveying that same information, but, in terms of
10Canadian officials, yes, it was --
11 Q. So your reports were one
12source that you would say for sure communicated
13this risk?
15 Q. Now, you have had an
16opportunity, I think, to look at the redacted
17versions of your emails?
18 A. Hmm-hmm.
19 Q. There are some that are very
20heavily deleted that we will take a look at, but
21could I ask you, by and large, and subject to some
22particular exceptions, do these redacted emails
23fairly convey the substance of your communications?
24 A. As you say, it varies email
25by email, depending on the level of redaction, but
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1I would say that probably in the case of each email
2there is something important missing as a result of
3the redaction.
4 Q. Okay. Now, we have -- do you
5know the name Asadullah Khalid?
6 A. Yes, I do.
7 Q. Can you tell us who you know
8him to be?
9 A. He was at the time the
10Governor of Kandahar. Then he was the Minister of
11Border and Tribal Affairs, and now he seems to be
12helping the Afghan government on issues related to
13reconciliation.
14 Q. And when you say "at the
15time", are you referring to the time you were at
16the Provincial Reconstruction Team?
17 A. Yes, that's correct. He was
18I think governor from approximately 2005 to 2008.
19 Q. Okay. How soon after your
20arrival at the PRT did you hear about Mr. Khalid?
21 A. Well, I met him quite early
22on. I had quite a lot of personal contact with
23him, and then, yeah, from the beginning, you know,
24I would discuss him with Afghans coming into the
25PRT. I would ask them what their views are of the
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1governor, and I also received some more
2comprehensive information from some -- from various
3sources about how the governor was conducting his
4affairs.
5 Q. Okay. And what information
6did you hear about Mr. Khalid?
7 A. I heard a lot of negative
8information on Mr. Khalid, generally, among people
9we met. It was actually very hard to find somebody
10who had a good word to say about him. He was, on a
11governance level, seen as difficult, handled tribal
12elders poorly, alienating many of them.
13 He wasn't really that interested
14in governance. He was interested in security
15issues where he was enthusiastic, but his
16enthusiasm was often seen as counterproductive.
17 There was an episode of friendly
18fire where some Afghan police officers were killed
19by an allied airplane, which was a result of Mr.
20Khalid's personal intervention in the fighting,
21after which efforts were made to remove him from
22having a hands-on optional military role; more
23generally, though, troubling reports about the
24governor's human rights performance.
25 We heard early on that he, in his
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1previous governorship in the Province of Ghazni,
2which is a little bit northeast of Kandahar, the
3governor had a terrible human rights record, that
4he had private detention facilities, that he would
5keep businessmen, among others, in those facilities
6for the purposes of extortion of money and that
7some of those people were never seen again. And he
8was seen, in human rights terms, as an unusually
9bad actor.
10 Then there were anecdotes you
11would hear in Kandahar about sexual misconduct with
12young women, involvement with narcotics, heavy
13involvement with narcotics. I mean, this is
14information which, I should emphasize, I am telling
15you what we were hearing from different sources.
16 I don't wish to say, you know,
17that Mr. Khalid was running a drugs network. I am
18just telling you that I heard from different
19sources, from credible sources, that this was the
20case.
21 Q. And did he have any
22connection with the NDS in Kandahar?
23 A. Yes. He seemed to have a
24quite intimate relationship with the NDS. We also
25began hearing quite early on that Mr. Khalid had
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1indeed set up private detention facilities in
2Kandahar, as well, and was detaining people in
3those facilities.
4 Q. Was Mr. Khalid's reputation
5known to the Canadian government in May/June 2006?
6 A. Yes.
7 Q. Was his reputation known to
8CF commanders in CEFCOM and Task Force headquarters
9in Kandahar?
10 A. Yes.
11 Q. Do you know if CF commanders
12from CEFCOM or Task Force Headquarters Kandahar
13ever met with Mr. Khalid?
14 A. Yes. They used to meet quite
15regularly with him, as did I, as I mentioned. He
16made himself available. He is very responsive in
17that sense. He is a very charming man and his
18English is very good. He's young and quite
19personable, and he made an effort to meet with us,
20talk to us, and he was quite available and
21accessible in that sense.
22 Q. And these meetings that you
23say took place, did they happen during the period
24of time that you were at the PRT?
25 A. That's correct, yes.
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1 Q. Do you know about any
2meetings in December 2006 attended by
3Lieutenant-General Gauthier while he was commander
4of CEFCOM?
5 A. I heard about that meeting,
6yes.
7 Q. Okay. But you weren't there?
8 A. No. That was in Ottawa. I
9was in Kabul at the time.
10 Q. Did Mr. Khalid come to Ottawa
11for that?
12 A. No. It was a discussion
13about him, rather than with him.
14 Q. In Ottawa?
15 A. Yes.
16 Q. Okay. Now, I would like to
17turn to some of -- not some of -- all of the
18reports relating to detainees that you sent from
19the PRT. You should hopefully have a binder in
20front of you called Collection E.
21 A. Collection E?
22 Q. Collection E. I think it is
23under the blue book.
24 Now, just generally, I take it
25that while you were at the PRT, you issued two
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1reports that you deemed to be important to detainee
2issues. One you have described as KANDH-029, and
3the second KANDH-032?
4 A. Yes.
5 Q. And is it your evidence --
6and, again, without disclosing anything that's been
7redacted, but is it your evidence that in these
8reports, as political director of the PRT, you
9conveyed information that there was a serious risk
10of mistreatment of detainees after they were handed
11over?
12 A. Yes. I would even go further
13and say the information was conveyed that there was
14mistreatment of detainees, not just a risk, but the
15fact of mistreatment.
16 Q. And by these reports, you
17conveyed this information to both CEFCOM
18headquarters and Task Force headquarters in
19Afghanistan?
20 A. Yes, among -- they were on
21the distribution list.
22 Q. And was it your intention
23that these reports or the information in these
24reports make its way to the military police or the
25provost marshals within those headquarters?
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2 Q. And, first of all, did the
3provost marshals have a C4 connection?
4 A. No, they did not.
5 Q. So how did you intend that
6the information in these messages would be conveyed
7to the provost marshals?
8 A. Right. Well, there were two
9channels which I made use of. One was the Ottawa
10channel, and by that I meant that on the -- if I
11could take you to 0029, as an example, there is a
12fairly lengthy list of addressees on the CC list.
13 Q. Okay. Just before we start,
14to give everybody a chance to find them --
15 A. Of course, yes.
16 Q. -- it is in Collection E, tab
171, and the 029 email begins at the bottom of page 2
18of 4; correct?
19 A. Correct.
20 Q. Okay?
21 A. There is four -- five chunks,
22five portions to the address block, if you like.
23There is who it is from, Kandahar C4R. That is us,
24the PRT. There is another C4 called
25Kandahar-KAF -- Kandahar hyphen K-A-F. That was my
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1colleague who sat at Kandahar Airfield, which was
2physically separate from the PRT.
3 You have the date. Then you have
4the "to" line. These are all DFAIT addresses who
5were, to my knowledge, the most involved in the
6detainee question and who had, in a sense, the
7responsibility to respond to this message.
8 And just to run through it
9quickly -- I don't know. Tell me if I am boring
10you, Mr. Lunau, but the first one is EXTOTT. That
11means External Affairs at Ottawa. That is a
12holdover from when DFAIT was call External Affairs.
13 IRP, that was the peacekeeping
14division, and they are there, because they were the
15ones who I was reporting directly to, the money for
16acquisitions in Kandahar came out of IRP.
17 The next one is the key one, IDR.
18That is the Defence Relations Division. So they
19were -- they dealt with NATO policy issues, and
20detainee policy was part of that NATO policy
21framework, and they are also the appropriate
22division because they were the ones who interfaced
23regularly with DND and the Canadian Forces.
24 I had worked in that division
25before, so they talk every week and sometimes every
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1day to DND. It is kind of a channel between DFAIT
2and DND, IDR.
3 Next one, IRH-GHA is a
4humanitarian affairs, human rights division.
5Obviously they would be on there because of the
6human right dimension of detainees. And the fourth
7one, JLH, is part of a legal branch dealing with
8humanitarian law. So, again, they would look at
9detainees from the legal aspects.
10 Those are the four divisions I
11felt most important, the ones who should respond to
12this message, and IDR really being the key
13division.
14 Then you have the CC line, which
15is maybe 70 addresses, some individuals, some
16divisions, some parts of DND, which -- we'll start
17with NDHQ, and there is maybe roughly eight of
18those, maybe nine or ten; some, you know, embassies
19overseas which -- like in London or the Hague,
20which were also interested in this issue, a mission
21in NATO.
22 Then the final one is the subject
23saying "KANDH-0029". Each formal message has a
24number, so this was the 29th message sent in 2006,
25and then the subject is "Detainees ICRC concerns
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1over notification by Canadian Forces."***
2 Q. So what was the particular
3concern you wanted to bring to people's attention
4in this email?
5 A. Oh, do you want me to answer
6-- I realize I didn't answer your question about
7the link with the military police. Do you want me
8to do this now or --
9 Q. Certainly.
10 A. Sorry, I went on at such
11length I forgot, myself, the question. Right. So
12the Ottawa channel, to get to the RCMP, is it goes
13up basically -- you know, you can imagine it kind
14of geographically. Here is the PRT. It shoots
15over to Ottawa, lands on the desk of all of these
16people who have these accounts.
17 The ones on the CC line aren't
18expected to act on it, but may be interested. I
19would expect IDR to act. That's the defence
20relations division. They would sit down with their
21colleagues in NDHQ, National Defence Headquarters,
22and, you know, discuss the message, and then
23hopefully at some point IDR would respond to us.
24 And once the message is at NDHQ --
25so there is a kind of personal connection, IDR
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1talking to NDHQ, but there is also these addresses
2within NDHQ who are on the CC line, and those
3include the CEFCOM commander -- that's NDHQ CEFCOM
4COMD C4R. That is general Michel Gauthier.
5 CEFCOM-J2, that is CEFCOM
6intelligence. CEFCOM-J3, that is CEFCOM
7operations, and CEFCOM-J9 is the key division.
8That's -- I think they deal with policies and legal
9issues, and detainees seem to fall under CEFCOM-J9.
10And so CEFCOM-J9 would then be in contact with
11their people in the field, including, on an issue
12such as this, the military police.
13 The second channel, that was the
14Ottawa channel, kind of up and over and down. The
15second channel was much simpler. That was via my
16colleague, Pamela Isfeld, and she is at the address
17KANDH-KAF. She was the political advisor to the
18Task Force Afghanistan commander, Brigadier-General
19David Fraser, who is also the regional general
20command -- he was double hatted, as they say in the
21military.
22 And in that capacity, Pamela had a
23few functions. One was to provide advice to the
24General on political issues, you know, governance
25issues, some policy advice, but also she was the
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1interface between him and DFAIT. She would give
2him messages, pass on their positions and concerns
3and information back to DFAIT. Also, she would,
4you know, maintain contact with a full range of
5colleagues at KAF.
6 And so in the case of messages on
7detainees, she would physically print up the
8message, and then walk over with it to the Provost
9Marshal, in this case, discuss it with him, and
10then come back and report back to me.
11 And this was very informal. I
12have known Pam for 15 years. We joined DFAIT
13around the same time. She used to talk quite a
14lot, so we would just pick up the phone and chat.
15So both of those channels, via Pam Isfeld,
16political advisor, and via Ottawa, those two were
17the channels by which these reports made their way
18to the Provost Marshal.
19 Q. What about Major Liebert at
20the PRT? Would he be talking to anybody at Task
21Force Headquarters or CEFCOM?
22 A. Yes. Yes, he would. He did
23that frequently, and he did that --
24 MR. PRÉFONTAINE: I'm sorry. The
25witness is being asked about somebody else's
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1knowledge. I don't think that is a proper area of
2questioning.
3 MR. LUNAU: Well, he would have
4had the means to observe Major Liebert's
5communications.
6 MR. PRÉFONTAINE: Well, if that is
7the case, then maybe we should start by
8establishing that, rather than asking what was said
9and purporting to present it as if it was fact.
10 MR. LUNAU: Well, I don't
11understand what the objection is, but --
12 MR. PRÉFONTAINE: The objection is
13that discussion between two individuals that
14doesn't involve the witness is not something that
15the witness can testify to, unless you first
16establish that the witness was a party to that
17conversation. That's what I am looking for, the
18factual basis for the conclusion that you are
19seeking the witness to speak to.
20 BY MR. LUNAU:
21 Q. Do you have direct knowledge
22that Major Liebert had communications with Task
23Force Headquarters or CEFCOM?
24 A. I have good reason to believe
25he did.
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1 Q. Did you participate in any of
2those discussions?
3 A. No.
4 Q. Did he tell you about them?
5 A. Yes. He volunteered to make
6those calls. So just to -- so the context is after
7-- so I went to the Sarpoza prison on the 14th of
8May of 2006. I think my first meeting with the
9ICRC representative in Kandahar was on the 23rd of
10May 2006.
11 Based on that discussion, I went
12to see Major Liebert and I conveyed to him the
13content of that discussion. He was quite taken
14aback, as was I, and he said, one of the complaints
15just to -- it is mentioned here in the unredacted
16form, was the problem of a point of contact. Red
17Cross were finding it very hard to find someone in
18the Canadian Forces who would even take their
19calls.
20 Eric -- Major Liebert said to me,
21Don't worry, I will phone and find out that person
22and get back to you.
23 And so I left him to that. Then
24we had a follow-up conversation about two or three
25days later in which he conveyed to me that he, too,
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1had had no luck finding anyone willing to discuss
2the issue with him. He had phoned around at KAF
3and he said, No one wants to touch this.
4 This is what he told to me. He
5said, This is a hot potato and no one wants to pick
6it up.
7 And that was the point at which I
8wrote Kandahar 0029. Having tried to fix the
9problem locally and failed to do so, we pushed the
10issue to headquarters to resolve.
11 Q. Now, what -- to some extent
12the email speaks for itself, but what was the chief
13issue or chief concern you had that you wanted to
14bring to people's attention?
15 A. Well, in the case of 0029,
16which dealt really with procedural issues, there's
17a little bit of something else, tangentially, but,
18essentially, it was about procedural problems.
19 So given the results of these
20problems, results being that the ICRC was unable to
21monitor our detainees, the purpose of this message
22was to, you know, inform headquarters how the
23system had broken down in the field on the
24understanding or assumption that they would rectify
25the problems which the ICRC had addressed.
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1 Q. And if I could draw your
2attention to the beginning of the email, the
3section "Report", some of which is redacted, but it
4says, "We met on May 23."
5 So do I take it the issues you're
6raising here, did they flow from that meeting on
7May 23rd?
9 Q. Okay. I asked for the
10meeting to talk about Sarpoza Prison. They said,
11Well, we can't really talk about how prisoners are
12treated, but, while we have you here, we have been
13looking for someone to help fix these problems we
14have with notification.
15 They began to lay out the
16problems. I would also mention, though, Mr. Lunau,
17that I didn't really mention this in this report,
18but during that meeting, as well, the ICRC noted
19they had already sent a written communication to
20the embassy in Kabul on these same issues, and that
21message went, I think, at the end of April.
22 So this was from the ICRC's point
23of view as sort of a followup, but from their point
24of view the problems had not been fixed, so they
25were trying again.
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1 Q. Okay. Now, in the summary
2section of your email, you refer to there being
3occasional reporting delays.
4 How often or consistent were the
5reporting delays?
6 A. When I look back at this
7message, I see a couple of inaccuracies in it, and
8I think the use of this word "occasional" is
9somewhat inaccurate.
10 I think there were consistent
11reporting delays. Every notification was late, and
12it varied from several days to several weeks and,
13in some cases, two months, but there were always
14delays.
15 Q. You describe your email in
16your affidavit as an action report, not an
17informational report.
18 What, if anything, were you
19expecting to be done as a result of this report?
20 A. Well, I was expecting these
21problems to be addressed and resolved. It seemed
22to me very simple business to fix them, and I was
23surprised the problems had arisen in the first
24place.
25 Q. Did you receive a response to
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1your email?
2 A. I did, yes.
3 Q. If I could ask you to look at
4page 1 of tab 1, is this the response you received?
5 A. That is.
6 Q. If I could ask you to go to
7paragraph 6, Mr. Laporte of the IDR advises that
8with regards to a point of contact, the National
9Command Element, NCE, Provost Marshal, Major James
10A. Fraser --
11 THE CHAIR: I just haven't found
12the place where you are at.
13 MR. LUNAU: Oh, sorry. It is at
14tab 1, the second page in, paragraph 6.
15 THE CHAIR: "With regards to a
16point of contact"?
17 BY MR. LUNAU:
18 Q. "With regards to a point of
19 contact, the National Command
20 Element (NCE) Provost
21 Marshal, Major James A.
22 Fraser, is the national point
23 of contact on detainee issues
24 in theatre."
25 Was this the action that you were
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1looking for?
2 A. In a sense, yes. It was
3action in the sense that, you know, the message had
4clearly been taken seriously. There had been
5extensive consultations.
6 Here at the very end of the
7message after paragraph 6, it shows the chain of
8people who were engaged, and it is an unusually
9extensive chain. If there is consultations,
10usually it would be maybe with two or three
11divisions, and here you have the drafter, the
12defence relations division, who, as I mentioned,
13had the lead. So he is the appropriate person to
14be replying.
15 He has consulted with three
16divisions inside DFAIT: The humanitarian division
17that's IRH-GHA; IRP, that is peacekeeping division,
18which, as I mentioned, was paying for the positions
19in Kandahar. RAS is what we call the geographic,
20the South Asian division, which dealt with
21Afghanistan as a country, as well as Pakistan and
22India.
23 Then you have four DND addresses,
24three policy ones, the assistant deputy minister
25policy, NATO policy and peacekeeping policy, and
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1finally CEFCOM, and then it is approved, signed off
2by the Director General, whom Eric Laporte reports
3to.
4 So this is quite an impressive
5consultation block. It shows to me the message has
6been taken seriously. There has been at least one
7meeting, possibly more than one, with these people.
8 There may have been phone
9consultations, but from the number it sounds like
10they actually got together, and they produced, you
11know, about a page of a response. So in that
12sense, it was an appropriate response.
13 Q. And the last sentence of
14paragraph 6 concludes with the sentiment:
15 "We are confident that future
16 contacts between the Provost
17 Marshal and the ICRC will be
18 productive."
19 Do I understand correctly, then,
20that from this point forward the Provost Marshal
21was to be the point of contact for the ICRC to
22raise any issues that it had?
23 A. Yes.
24 Q. Okay.
25 A. And it seems clear to me from
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1the message that the Provost Marshal, too, has been
2contacted as part of the information gathering to
3generate this response, because some information
4from paragraph 6 strongly suggests there's been
5contact with the people on the ground to have this
6level of detail that, you know, a phone call had
7been unanswered, people had been out of theatre,
8and so on.
9 So there seems to have been
10consultation not just with headquarters people, but
11from headquarters on the military side right down
12into KAF, which is where the Provost Marshal was
13based.
14 Q. Okay.
15 A. KAF being Kandahar Air Field.
16 Q. But that is an inference you
17are drawing from what is in paragraph 6?
19 Q. Now, this email, so far as I
20can tell, doesn't make specific reference to
21torture or risk of torture?
22 A. No. Let me just -- Yes. No,
23it deals exclusively with notification issues,
24procedural issues, contacts between ICRC and us,
25which is appropriate, because my message really
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1dealt with those questions, as well. So they have
2responded to the questions I raised.
3 Q. Okay. Now, if I could ask
4you to go to your next email, 032, which is tab --
5for some reason tab 43 in the collection.
6 This was the second message that
7you sent while at the PRT?
8 A. Well, it was the second
9message on detainees that I sent, yes.
10 Q. I understand there would have
11been others, but in terms of the detainee issues
12that you were looking at or engaged in, this was
13the second significant report that you sent?
14 A. Yes.
15 Q. Now, can you tell us the
16circumstances under which this report was prepared?
17 A. Certainly. So to backtrack a
18little bit -- and this I have seen in briefing
19notes which have been redacted and made available
20to me, which leads me to believe they're part of
21the public record.
22 Around this time --
23 MR. PRÉFONTAINE: Actually, Mr.
24Lunau, maybe you should remind the witness that he
25shouldn't assume such things. The public record is
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1what is before him.
2 The witness just said that he has
3seen unredacted versions and, therefore, he assumes
4they're part --
5 THE WITNESS: Sorry, redacted
6versions.
7 THE CHAIR: Maybe you could
8address me so I know what --
9 MR. PRÉFONTAINE: Yes, Mr.
10Stannard. I had understood the witness to make an
11assumption that, given that he had revised
12unredacted documents, they were part of the public
13record, and it is that assumption that I wanted Mr.
14Lunau to address, but now the witness has corrected
15me and I stand corrected.
16 THE CHAIR: So we are okay?
17 MR. LUNAU: I think we are good to
18go.
19 MR. PRÉFONTAINE: As long as we
20are clear that we are addressing what is before us
21and not something else, elsewhere, we are good to
22go.
23 THE CHAIR: Okay.
24 THE WITNESS: So the overarching
25context for this was an initiative I referred to,
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1and I have been, as I mentioned, given redacted
2documents -- sorry, if I said unredacted -- where
3this is sort of general framework is being
4discussed, so I am fairly confident it is something
5I can talk about.
6 BY MR. LUNAU:
7 Q. The redacted documents you're
8referring to, are they from the Commission? Are
9they part of the Commission's documents?
10 A. I believe so, yes. I was
11sent them, I believe, by the Commission on a disk.
12 Q. I see. Okay.
13 A. Essentially, it was briefing
14notes for trilateral meetings which were taking
15place in June of 2006 between Canada, the UK and
16Netherlands. Actually, a few meetings which took
17place. There was some in a NATO context and some
18on this trilateral basis.
19 And there was a number of issues
20on the agenda, but one was one which related to
21this issue, a proposal by our allies. We, as I
22mentioned earlier, set up this kind of joint
23facility for all our detainees, which would be
24either something we would build ourselves or
25preferably something we would renovate which would
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1be run by the Afghans, but with NATO staff embedded
2in, to, you know, help mentor the Afghans, ensure
3that human rights and other standards were
4observed, and to provide a much kind of more
5western standard detention experience, if I can use
6that phrase.
7 This was a policy initiative which
8our senior officials in DFAIT, as well as DND, had
9to respond to.
10 So this was the context for the
11trip to Sarpoza Prison. These director generals
12from three departments came down to Kandahar. I
13went with them to Sarpoza, and we looked at Sarpoza
14to try and understand the condition of Sarpoza and
15to use that information to develop a policy
16position to respond to this initiative by our NATO
17allies. I don't know quite when the initiative
18arrived. It was sometime around, you know, April
19of 2006.
20 So that was the context for this
21report, which was a tasking, in effect. I was -- I
22don't know if I -- I can't remember if I was asked
23or if I volunteered to write a report on the visit
24to Sarpoza, but it would be the logical thing for
25me to do as the DFAIT representative in the field.
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1 So a fairly large portion of this
2report deals with Sarpoza Prison. Some of it is
3quite mundane. It was based on the visit itself,
4some other information we received from a couple of
5other sources, and it deals with things like
6facilities for vocational activities and a dining
7room for staff and some process issues, how
8prisoners were handled. There is things like fans
9needed for the clinic.
10 It is very specific, but the
11reason for this is that DFAIT had money available
12to potentially help renovate this prison. We were
13looking in very practical terms of what was needed
14that we could provide to help reconstruct, renovate
15Sarpoza, but in this policy context of developing a
16position for the British and Dutch on whether this
17might be a suitable facility for a regional
18detention or prison for our NATO allies.
19 So quite a bit of this report is
20on that issue, because that is what I had been
21asked to do.
22 However, in the course of
23researching this question, as I mentioned, we went
24on the 14th of May to Sarpoza. I then wanted to
25find out the information I didn't have, which had
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1to do with condition of detainees at Sarpoza;
2approached the Red Cross. They said, Sorry, we
3can't tell you about that. That's confidential.
4 But, nevertheless, in the course
5of that period, the end of May period where I was
6interested in this issue, I was able to get good
7information from credible source or sources on that
8very issue of how prisoners are treated, including
9prisoners transferred by Canadian Forces,
10specifically that pool.
11 So the message ends up dealing
12with the two subjects: Firstly, the prison itself,
13the physical conditions of the prison and areas
14that might need attention; secondly, treatment of
15prisoners generally, including specifically those
16transferred by Canada.
17 To ensure there is no danger of
18the second bit getting lost in the volume of
19material on the first question, I made a point of
20doing two things. First, in the summary at the
21beginning of the message, I spell out that Kandahar
22prison actually is pretty good, and actually what
23is important in Kandahar is not the prison itself,
24but if I can quote my message:
25 "... overall treatment of
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1 detainees, including those
2 transferred to Afghan custody
3 by Canadian Forces."
4 And, again, just to be sure that
5that message wasn't lost, I did something I hardly
6ever do, which is kind repeated myself at the end.
7There is this conclusion section which has three
8bullets, and we can see what the bullets are saying
9on page 4 of the message, that Kandahar prison is
10basically fine. Then it has the little bit on this
11situation with the Netherlands, and then the third
12bit is flagging that the significant information in
13the reports, which is not the prison itself, but,
14again, if I can quote the message:
15 "Overall treatment of
18 by Canadian Forces."
19 And then in paragraphs 20 to 23,
20some of which is redacted and I am not going to,
21you know, add anything beyond what is here, but
22there is information given which attempts to
23explain what is the basis of this concern.
24 Q. Okay. Now, at paragraph 23,
25the first sentence:
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1 "[blank] stressed the
2 importance of speedy
3 notification of detention and
4 noted that Canada's
5 responsibility for detainees
6 did not cease just because
7 they had been turned over to
8 Afghan authorities."
9 Without disclosing the redacted
10piece of this paragraph, did that statement
11accurately reflect the government's understanding
12of its responsibilities?
13 A. I would say this is --
14actually, could you rephrase the question, please?
15 Q. Well, somebody at this
16meeting has said to you that -- first of all, it
17seems from this paragraph, it is not you, but it is
18somebody else who seems to have some kind of issue
19with Canada's treatment of detainees, and they make
20two points.
21 One is they stress the importance
22of speedy notification of detention, okay? So,
23first of all, was there -- we have seen your
24previous email that raises notification issues. It
25seems to be being raised for a second time --
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1 A. Yes.
2 Q. -- during this visit.
3 A. Hmm-hmm.
4 Q. Was it a significant concern
5to people outside of the Canadian mission, this
6whole-of-government mission, that the notification
7procedures weren't up to snuff?
8 A. Yes. Yes, that's the case.
9 Q. Okay. And then they seem to
10go on and they make a second point, which sounds to
11be almost like a lecture, that Canada's
12responsibility doesn't cease just because they have
13been turned over to Afghan authorities.
14 I mean, the source, we don't know
15who it is because it's been redacted, but were they
16telling you that Canada is not meeting its
17international obligations?
18 A. Yes.
19 Q. Now, this particular message,
20again, did you intend this message be communicated
21to the Provost Marshal or the MPs?
22 A. Yes.
23 Q. Okay. Now, we just saw
24previously that Major Fraser had been designated
25the point of contact on detainee issues. Was that
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1only with respect to communications with the ICRC,
2or did you intend that he would get a copy of this,
3as well?
4 A. Yes, the second, that he
5would. And, yes, with feedback from my colleague,
6Ms. Isfeld, I received confirmation that both these
7messages had been brought to his attention.
8 Q. So she told you that?
9 A. Yes, and gave me a little bit
10of feedback of what he had said.
11 Q. Now, did you ever yourself
12speak with Major Fraser about detainee issues?
13 A. I don't believe so.
14 Q. You indicate at the end of
15your email, paragraph 25, and part of it is
16redacted, but on May 30th somebody met with
17Lieutenant-Colonel Randy Smith, legal advisor with
18the National Command Element in KAF.
19 So is that the same element that
20Major Fraser was part of?
21 A. The organization of, you
22know, the military in Kandahar was confusing to me
23and seemed to be confusing to some of my military
24colleagues, too. But my understanding is that, no,
25that the legal advisor is sort of part of JAG, and
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1that is separate and reports back a separate chain
2to the Provost Marshal. They're colleagues and in
3the same basic place. It was the National Command
4Element which was one three-storey building in
5Kandahar Air Field.
6 They're all kind of working
7together, but in terms of organizational structure,
8they're different.
9 Q. Yes. But the point of my
10question was not so much the organizational
11structure, because I understand military police and
12legal advisors are separate branches, have separate
13technical chains, but we saw Major Fraser was
14located at the National Command Element and
15Lieutenant-Colonel Smith is at the National Command
16Element.
17 So the point of my question is
18they were both at the same headquarters?
19 A. Yes. And on top of that, I
20believe they're working closely together. So to
21explain why Lieutenant-Colonel Randy Smith is here,
22this was Major Liebert, who as you see again is
23consulted in his follow-up communications on trying
24to identify a point of contact on detainee matters.
25This was the person that he was able to identify as
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1somebody suitable as someone who is responsible and
2could speak on detainee questions.
3 So my inference would be that
4Colonel Smith and the Provost Marshal, Major
5Fraser, would be working closely together in a
6collaborative fashion, but, you know, looking at
7detainees from different aspects, the military
8police aspect and the legal aspect.
9 Q. Okay. Now, your section on
10treatment of detainees, did you actually speak to
11any detainees?
12 A. No, I didn't.
13 Q. Okay. On what did you base
14the information set out in this report, without
15disclosing any redacted information?
16 A. Well, in general, you know,
17on any issue, we tried to, as part of our kind
18of -- you know, we are doing business trying to
19find the best sources, the most credible, the most
20authoritative, the best-informed sources on a given
21issue.
22 So on detainees, that is how I
23went about it. I identified the source or sources
24that I believed would provide the best level of
25understanding of the issue, and that was the basis
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1for this section, treatment of detainees by Afghan
2authorities.
3 If I could just add to that, there
4is also a question of context, so being in Kandahar
5you're trying to understand, you know, general
6patterns and patterns in prisons and patterns of
7detention, and there was other information on
8issues that didn't relate directly to this, but
9related to detainee questions, which, you know,
10provided a further understanding to position this
11knowledge.
12 Q. Okay.
13 THE CHAIR: Mr. Lunau, depending
14on your questioning, if we could find a proper --
15 MR. LUNAU: Now, is a good place
16to break.
17 THE CHAIR: Would now be a good
18time?
19 MR. LUNAU: Yes.
20 THE CHAIR: We will break until
21quarter to 11:00.
22--- Recess at 10:29 a.m.
23--- Upon resuming at 10:45 a.m.
24 THE CHAIR: Thank you. Mr. Lunau.
25 BY MR. LUNAU:
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1 Q. Thank you. Now, Mr. Colvin,
2we were looking at your 0032 email, and, similar to
3what I said about your first email, I didn't see
4any reference to torture or risk of torture in this
5email.
6 A. The issue of torture, risk of
7torture is in the section, paragraphs 20 to 23, but
8the words that are used, as I mentioned in the
9email, are code. So the words used do not mean
10exactly what, on the surface, they mean but are
11standing in for something else.
12 So in this case, unsatisfactory
13conditions, unsavoury conditions, all kinds of
14things are going on. My understanding at the time
15and my understanding today is that these are
16references to abuse, mistreatment, torture.
17 I mean, there's a question of, you
18know, what is abuse versus mistreatment versus
19torture, and that's obviously an issue that I am
20not really qualified to pass, but they all fit into
21a category of improper treatment, and that's what
22this section deals with.
23 In the context of the particular
24source or sources, the information we got was, by
25necessity, presented in a cautious fashion. And so
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1I flag in this message that these words are being
2given in a cautious fashion, in code, and that
3there is more of the same ilk, which, for reasons
4which I can't get into, can't be told more
5directly.
6 So I am alerting the readership
7that these words are standing in for words which
8might --- would, in my view, include torture.
9 Q. Okay. Now, would you allow
10for the possibility that perhaps outside of the
11DFAIT circle, for example, within the CF command
12elements, they may not appreciate or understand
13that these terms are code for something else?
14 A. There is, you know, an
15assumption when you write these things that you are
16writing for a reasonably sophisticated audience,
17but I agree with you. I felt at the time there
18might be a risk of misunderstanding, and that was
19-- actually, maybe less for the content as for the
20amount of material on the prison.
21 So this is why I added this
22emphasis in the summary that the important material
23has to do with -- and then I summarize what my
24understanding of the concern was, but it is the
25overall treatment of detainees that is the concern,
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1and so there is no confusion and they think, well,
2it is maybe detainees generally or some other
3people's detainees or detainees in a specific
4province, I specify it is our detainees.
5 So it is not saying what exactly
6is happening to the detainees. I didn't have that
7level of knowledge, but the knowledge I did have
8spoke to the fact, the understanding, the
9assessment from very credible source or sources
10that our detainees were being subject to improper
11treatment, were being badly treated, mistreated,
12abused, without the knowledge of the techniques or
13specificity.
14 You know, to say that this rises
15to a level of torture would be a step for which I
16didn't have that detail, but I did have an
17awareness that there were problems with treatment,
18mistreatment.
19 And in the context of Afghanistan,
20the context of Kandahar, the context of other
21aspects that we were aware of, for example,
22behaviour of the Governor of Kandahar, it was clear
23that, in an Afghan context, this isn't some sort of
24mild treatment, or inadequate food or the beds
25aren't soft enough. This would be a severe
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1problem, a clear problem of how our detainees are
2being treated.
3 Q. All right. Did anyone ever
4contact you about this email to say: Mr. Colvin,
5you make a reference here to overall treatment of
6detainees. What exactly are you talking about?
7 A. Sorry, can I add a final
8answer to your previous question; is that okay?
9 Q. Yes.
10 A. Yes. So the other aspect
11that is important here, and, again, I can't get
12into this, but the nature of the source or sources
13also gives this great weight. So the message is
14important, but the source is also important.
15 Sorry, on your second question --
16or your first question was saying, Was there a
17reply? I don't recall one and I don't think there
18was.
19 Q. Now, just picking up on
20something you just said about the sources would
21help the reader identify what exactly you were
22talking about, you referred to the treatment of
23detainees?
24 A. Yes.
25 Q. Okay. So without disclosing
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1the redacted information, is that -- is what has
2been redacted relevant to helping us understand the
3point you just made?
4 A. Yes, it is very relevant.
5 Q. Okay. So now we looked at
6these two emails and we move on at this point in
7time to when you went to the Canadian embassy in
8Kabul.
9 And, as I understand it, you began
10working at the Canadian embassy in Kabul in August?
12 Q. Of 2000 --
13 A. Yes, beginning of August
142006.
15 Q. And while you were at Kabul,
16you were the head of the political section and the
17de facto Deputy Head of Mission, and in your
18affidavit you say you were responsible for all
19Canadian policy files, any issues you judged
20important to Canada, especially as it related to
21its engagement in Kandahar. Is that an accurate
22summary?
23 A. Yes.
24 Q. Okay. And those matters
25important to the Canadian engagement in Kandahar,
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1again, would have included detainee issues?
3 Q. And in your capacity at the
4embassy, you supervised Catherine Bloodworth?
5 A. Hmm-hmm.
6 Q. Now, I would like to look at
7some of the reports that you issued while you were
8in Kabul. If I could ask you to go to Collection
9E, tab 3, page 2 of 3.
10 A. Hmm-hmm.
11 Q. So on August 28, 2006 you
12sent an email to a number of addressees, including
13CEFCOM-J9. What was the issue you were concerned
14with in this email?
15 A. Yes. The issue was that
16ISAF, as an organization, had no awareness of the
17fact that we had taken any detainees, even though
18we had taken several detainees.
19 Q. Were they supposed to be
20aware?
21 A. Yes.
22 Q. And whose responsibility was
23it to make them aware?
24 A. I believe it was Canada's
25responsibility.
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1 Q. So we have seen in the
2previous emails ICRC has expressed concerns. This
3email seems to indicate ISAF has concerns. So
4these are two different --
5 A. Yes.
6 Q. -- sources now of concern?
7 A. That's correct. And the
8context for this briefly was, you know, every
9couple of weeks I would meet with my colleagues
10both at allied embassies and ISAF itself. ISAF had
11a sort of permanent staff. There is about 1,000 of
12them in Kabul. It is quite a large organization,
13ISAF being the sort of NATO force in the country.
14 We were discussing detainees and
15the ISAF rep mentioned there were a couple of
16detainees taken by one of the other allies, but
17that was it so far. I said, Actually, that can't
18be it, because we have taken a bunch of detainees,
19too.
20 He said, Really? That's news to
21me. You guys should tell us.
22 So then that was the genesis of
23this message to CEFCOM-J9 saying, Hey, by the way,
24ISAF doesn't know about the detainees we have
25taken, and can you please make sure they are
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1informed?
2 It was a kind of chatty message.
3It wasn't a formal message. It was one of these
4more relaxed emails without a number at the top,
5and, you know, signed off by me personally, written
6to this guy, Kim Rebenchuk, I guess.
7 So it was an attempt to informally
8address this problem that ISAF had identified.
9 Q. Did you subsequently raise
10this issue in a more formal way?
11 A. Yes, I did.
12 Q. If I could ask you to look
13under the same tab, page 1, an email KBGR-00 -- or
140118 dated September 19, 2006?
15 Now, this email appears to be
16addressed only to within DFAIT, Department of
17Foreign Affairs?
18 A. Yes.
19 Q. Why is that?
20 A. Essentially it was a
21follow-up to the August 28th. So I copied the
22earlier chain so my colleagues would have a full
23picture. And as the email mentions, on September
2419th, we again received a complaint, this time I
25would say a blunter complaint.
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1 The wording used -- I didn't put
2it in the email -- was that getting information
3from the Canadians is like getting blood out of a
4stone. It was quite a surprisingly direct
5complaint, you know, in a diplomatic context.
6 And to provide context for my
7colleagues, I wanted to include the earlier
8messages, but, in essence, what I was doing was
9complaining that CEFCOM-J9 had done nothing in
10response to the earlier message.
11 So I didn't want to be rude to my
12colleagues by essentially sending a complaint to
13them complaining about them. So I simply provided
14that information to my DFAIT colleagues so they
15would go and engage with CEFCOM-J9 in Ottawa to try
16to get this problem resolved.
17 So I took all of the DND addresses
18off this chain.
19 Q. All right.
20 A. This allowed me to be candid
21with my -- it was a more candid in-house message.
22 Q. Okay. The question, in my
23mind, is: If your intention was that the message
24would go down to CEFCOM, anyway, why it just
25wouldn't have been addressed to them as a number of
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1other emails were?
2 A. Yes. I guess I tried that
3with the August 28th one addressing them directly,
4and it hadn't worked. So this was the next stage,
5which was to get Ottawa to -- to try and get them
6to fix it.
7 Q. Now, in paragraph 3, you say:
8 "According to [blank], the
9 situation has not, not
10 improved. The Canadian
11 Provost Marshal in Kandahar
12 has told ISAF that he would
13 be pleased to provide the
14 information, but that he has
15 received explicit
16 instructions from NDHQ not,
17 not to do so. [Blank] said
18 this is very frustrating, as
19 ISAF has responsibilities on
20 detainees that it is obliged
21 to discharge." (As Read)
22 Now, it appears whoever is
23speaking here, the name or the organization has
24been deleted, but are you reporting here something
25that was said to you by this someone?
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1 A. Yes.
2 Q. Okay. Do you have any other
3information about this assertion about the Canadian
4Provost Marshal saying he had been instructed by
5NDHQ not to provide information to ISAF?
6 A. There was more information
7which came a little bit later, and that was written
8into the message under tab 4 of 28th September,
9which is a follow-up to this message.
10 This was a meeting with another
11individual. So it says here "unredacted". They're
12both ISAF contacts, and the first one was from the
13POLAD office. So this guy in the second message
14was yet a more senior, more authoritative,
15individual in ISAF, who gave me new information and
16some quite colourful quotes.
17 And, again, in order to be able to
18use the colourful quotes and convey as candidly as
19possible what the nature of the complaint was, I
20restricted it to my DFAIT colleagues.
21 Q. Okay. Now, in this email
220121, the first paragraph, you say:
23 "Further to recent
24 discussions of detainee
25 issues, we met with [blank]
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1 was one of the two ISAF
2 contacts (other was from the
3 POLAD office) who approached
4 us in August about problems
5 with Canada on detainee
6 issues."
7 So do I understand correctly that
8whoever these redacted entities or people are, they
9initiated the contact with you, because they were
10concerned about Canada's treatment of detainees?
11 A. Yes. The original contact,
12it was on the margins of a meeting on police
13reform. That was in the August 28th message
14originally. I mean, this may be too much detail.
15 So the September 19th message
16refers to these two contacts having raised this
17issue with us several weeks ago. So, yes. It was
18on the margins of this meeting. Also, as I
19mentioned earlier, every two weeks we sat down and
20talked about these issues.
21 And then there was a follow-up
22with the one gentleman from the POLAD office, the
23political advisor office, and then following this
24message, I went back again to follow up. So I,
25again, initiated this third meeting, if you like,
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1which led to the September 28th message, so -- to
2find out if things had improved in the interim.
3 Q. Now, in paragraph 5, you say,
4the last sentence:
5 "... it is unclear even who
6 is the point of contact in
7 Kandahar, said [blank]. It
8 is sometimes difficult even
9 to get a phone call
10 answered."
11 I thought that the Provost
12Marshal, Major Fraser, had been designated the
13point of contact in Kandahar. Was that link not
14working anymore, or what was the issue, or do you
15know?
16 A. Well, the issue, I think, was
17the -- as was explained to me, the unwillingness or
18inability of the person in Kandahar to tell ISAF
19what it wanted to know.
20 Q. Okay. So when you refer to
21the person, are you referring specifically to the
22Provost Marshal --
23 A. Well, it was --
24 Q. -- or are you able to say?
25 A. Well, it was, you know, in
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1the September 19th message, the information that
2was given to us by ISAF was it was the Provost
3Marshal that they had been talking to and he is the
4one who said, Well, I would give you, but I am not
5allowed to.
6 Then in the September 28th
7message, it seemed like the discussions had become,
8you know, more strained between ISAF and the
9Canadians in Kandahar, because this was quite a
10surprisingly blunt complaint, like, quite -- the
11person was quite worked up about us, used quite
12blunt language, and was clearly quite unhappy with
13the quality of his contacts with the Canadians in
14Kandahar Air Field.
15 I don't know if it specifies
16here -- yeah. I mean, he's even struggling with
17finding out who the person he needs to talk to is.
18So he has a series of complaints about being told
19to, Mind your own business. We know what you want,
20but we're not going to tell you, like, that kind of
21stuff.
22 Q. So during this discussion
23when this person raised the difficulties they were
24having, did you advise them, Well, the Provost
25Marshal is the point of contact. You should be
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1phoning him?
2 A. Yes. And I knew from the
3earlier discussions they had spoken to the Provost
4Marshal, but it seemed like there was a policy
5problem with Ottawa, and so I sent this message
6September 28th, again, to push our guys, IDR, to go
7and deal with CEFCOM, or whoever the appropriate
8person is, to get this issue fixed.
9 Q. Okay. In paragraph 2, it
10says:
11 "According to [blank] when he
12 contacts Canadian
13 interlocutors in Kandahar,
14 their first response to
15 requests is, 'Why do you want
16 to know?', followed by, 'We
17 know you want it, but we
18 won't give it to you'." (As
19 Read)
20 Do you know who those Canadian
21interlocutors are, at least by position, if not by
22name?
23 A. In this context, no, not
24exactly. But in the context of the earlier
25conversation with ISAF, one of the people that the
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1ISAF officials had been talking to was the Provost
2Marshal. So I had got that information in an
3earlier conversation, but I didn't get into the
4specifics with this guy.
5 He was the more senior of the two,
6the more -- the most authoritative, the September
728th message. He was sort of the top of the chain
8on these issues, I would say.
9 Q. Okay. Now, was it your
10intention that this message be passed to the
11Provost Marshal at either CEFCOM or Task Force
12Headquarters Afghanistan?
13 A. No. My intent here was for
14-- given that ISAF had identified the problem as
15being a policy problem at headquarters, that seemed
16the appropriate place to resolve it, from this
17comment earlier that I would like it -- you know,
18the message is a little bit contradictory.
19 First off, they say, We would like
20to tell you, but we're not allowed to. Then the
21second one, they're being a bit more dismissive,
22saying, Well, we're just not going to tell you,
23without really blaming it on Ottawa.
24 But from the earlier message, the
25conclusion I came to is this was an Ottawa issue;
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1therefore, Ottawa was the place to solve it. And,
2therefore, this message September 28th was aimed at
3DFAIT in Ottawa to engage with National Defence
4Headquarters in Ottawa and to fix the policy and
5allow the people in the field to pass on the
6information, which did, jumping ahead a little,
7happen.
8 This problem was solved and the
9policy was changed, and the guys in the field were
10allowed to tell ISAF, but with some caveats
11attached.
13you to go to your next report, which is at tab 7,
14again dealing with detainee issues, this particular
15report is heavily redacted. It appears to relate
16to a proposed Afghan policy on detainees.
17 Without disclosing the policy or
18disclosing any of the information that has been
19redacted, was there discussion here relevant to the
20treatment of detainees?
21 A. Yes.
22 Q. Okay. Again, I want you to
23be very careful about not disclosing anything
24that's been blacked out, but can you tell us, in a
25general way, what the concerns were that were
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1discussed?
2 A. Well, in a general sense, you
3know, we were -- this message makes it clear.
4There is there is a lot of references to the Dutch,
5UK, Australians, British, US, so our partners in
6southern Afghanistan. And, you know, we were all
7deployed sort of in separate provinces, but
8adjacent provinces in a zone that was dealing with
9many of the same problems, insurgency problems,
10narcotics problems, governance problems and, in
11this context, detainee problems.
12 And so this message deals with
13some of these common problems related to detainees,
14including issues related to treatment of detainees
15after transfer.
16 Q. Okay. Now, in December 2006
17through January 2007, you approved the Kabul
18embassy's 2006 human rights report?
19 A. Yes.
20 Q. And I believe you also
21authored parts of that report?
23 Q. What is the intended purpose
24behind these reports?
25 A. That's a good question. One
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1answer is that we do these reports because we do
2these reports. So in my previous posting in
3Romania, we did something similar on the
4Palestinian human rights situation and governance
5situation.
6 So you are aware, you know, in
7certain missions, there is this obligation to
8produce a report at the end of the year summarizing
9for Ottawa, you know, general patterns, tendencies
10on human rights and governance questions, and that
11would include some sort of general assessments,
12developments in the last year since the previous
13report, and then there are some recommendations at
14the end.
15 It was never clear, you know, what
16happened to these reports, if anything, once they
17were sent in, but, you know, it was a significant
18product. It was the embassy's major human rights
19report for that year.
20 So, you know, we took it
21seriously. A lot of work usually goes into these,
22and it is supposed to lay out the kind of
23up-to-date state of our understanding, and then, as
24I mentioned, there is a few recommendations,
25usually eight, nine, ten recommendations, at the
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1end of the report.
2 Those go to the human rights
3division at Ottawa headquarters of DFAIT, and after
4that I am not entirely clear where they go or what
5is done with them, but --
7you to find volume 2 of the white covered witness
8book?
9 A. Hmm-hmm.
10 Q. And at paragraph 14 --
11 A. Sorry, which tab?
12 Q. Sorry, tab 47. There is a
13section titled "Physical Integrity and Security of
14The Person". Paragraph 17 has been redacted
15completely, but starting with paragraph 14, you say
16that:
17 "Political repression, human
18 rights abuses and criminal
19 activity by warlords, police,
20 militia and remnants of past
21 Afghan military forces are of
22 serious concern to Afghans.
23 Military, intelligence and
24 police forces have been
25 accused of involvement in
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1 arbitrary arrest, kidnapping,
2 extortion, torture and
3 extrajudicial killing of
4 criminal suspects. Although
5 the situation has improved
6 significantly compared to
7 previous regimes, public
8 trust in law enforcement
9 agencies remains low."
10 In that paragraph and in some
11others where the same type of comments are made, a
12question that came to my mind is: If you believed
13by December 2006 that there was serious and
14credible evidence of mistreatment, why wouldn't the
15report come out and expressly say so, instead of
16referring to accusations of these things?
17 A. That's a good question.
18First, I would say that obviously some parts of the
19report have been blacked out and it may be that
20some blunter language is behind those redactions.
21 In terms of paragraph 14, there is
22a certain format, you know, to these reports, and
23this kind of language often gets used in these
24kinds of reports.
25 If I look back at it and I was
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1writing it today, I might use something different.
2For example, you know, in the intelligence area,
3you use words like "assess" or "judge".
4 So if I was writing it with that
5sort of -- from that sort of perspective, I might
6have written, you know, We judge or we assess that
7military intelligence and police forces have been
8involved in arbitrary arrests and arbitrary
9extortion.
10 So here it is slightly -- there is
11a bit of an arm's-length element to this statement.
12I guess what it is is it's a summary overview of
13the situation based on information we have heard,
14which is I suppose technically in the form of
15accusations. We haven't been into facilities and
16watched torture take place. We haven't -- we
17weren't at the time interviewing detainees
18ourselves, so we didn't have any first-hand
19account.
20 So using a kind of language, which
21reflects, you know, this information is coming from
22sources which are not for us first hand.
23 But I am not crazy about it. Now
24I look at it, you know, it's not a -- it could have
25been worded more clearly, I would say.
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1 Having said that, it may well be
2that there is clearer wording in some of these
3areas that have been blacked out, but I can't speak
4to that, obviously.
5 Q. Right. So one paragraph in
6this section that appears to have been blacked out
7completely.
8 A. Hmm-hmm.
9 Q. And paragraph 15 has got some
10deletions, as well. But, along a similar vein, in
11this report or in your emails that we have looked
12at so far, there doesn't seem to have been an
13express recommendations made that, We cannot allow
14transfers to continue under these circumstances and
15they should be stopped.
16 Is there a reason why that type of
17recommendation wouldn't have been expressly stated?
18 A. I just have one more thought
19to my previous question, if that is all right.
20 Q. All right.
21 A. If we put information in
22here, there is a sort of implication that we
23believe it to be true, that we are not just
24repeating rumours that we have heard. Our judgment
25is that there is validity to these accusations, and
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1so that is sort of the premise for their being
2included. So that is on paragraph 14, for example.
3 As for the recommendations, it
4seems to me, when I look at them, I notice one
5recommendation which does touch on it. Some of it
6has been blacked out, but --
7 Q. Are you looking at the third
8bullet point on the last page?
9 A. Yes.
10 THE CHAIR: Which page are you on?
11 MR. LUNAU: The very last page of
12the tab.
13 THE CHAIR: It has the number 1829
14on it?
15 MR. LUNAU; 1829, yes, the third
16bullet point.
17 THE CHAIR: Okay.
18 THE WITNESS: I think that is
19getting at this issue in a slightly oblique form.
20 As a general comment, though, you
21know, my sense, I think, when this was drafted, was
22that problems that had been identified earlier
23would have been resolved, you know, that by --
24through the follow-up, going back to May/June 2006,
25and this is reflected in some of my messages in
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1September.
2 My impression was that action had
3been taken to address the concerns which we had
4identified. So it wasn't necessarily clear to me
5in December exactly what was happening with our
6detainees, and part of that is that there was,
7frankly, a great deal of secrecy within government,
8on the part of the Canadian Forces, as to what was
9happening with our detainees.
10 Q. Okay. But your impression by
11December 2006, you presumably had learned more than
12you knew when you first arrived in April. Is it
13fair to say that, first of all, the detainee
14situation was evolving during that period? In
15other words, it was not sort of a static situation;
16that there were steps being taken to address some
17of these issues?
18 A. Yes. You know, I mean, there
19are two ways of looking at it. One is that, you
20know, we -- and when I say "we" here, I am talking
21about the NATO allies in the south.
22 I used to meet, I'd say, every day
23with someone from one of our NATO allies. We
24talked all the time and we had very good
25information exchange, very collegial relations,
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1very candid and frank, and we used to talk about
2every and any issue.
3 So I was aware of kind of the
4broader patterns on other issues, detainees, and
5there were broader patterns which were of general
6concern. And I don't think I am revealing anything
7to this detainee policy, it was -- from the heavy
8redacted message earlier, it was an attempt to
9tackle some of these general patterns.
10 At the same time, that co-existed
11in my mind with a sense of there had been action
12taken by Canada in response to our earlier
13messages, and my impression was that there had been
14progress, and, you know, there was dialogue with
15the appropriate organizations, which should have
16led to improvements.
17 And maybe there was a third thing
18in my mind, which is that there were still some
19serious problems which had not been addressed, but
20the exact nature of those problems I wasn't aware
21of enough to come out with a forceful
22recommendation.
23 This is a very sensitive issue, to
24state the obvious, and, you know, I am fairly
25careful in my approach. I like to have enough
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1information before weighing in, if I am going to
2weigh in, and I may have felt in December that I
3didn't have the information I needed to push
4aggressively on this.
5 It was clearly a -- if it was
6still a problem, clearly there were people in
7Ottawa who had come out with this policy under
8which we were operating, and to challenge those
9decisions would require a solid, solid information
10base, so that I wouldn't look ridiculous and say
11something which, you know, turned out to be
12mistaken, right? There is a credibility issue
13there.
14 We have to understand enough
15before intervening, and I am not sure in December I
16was at that stage.
17 In general, we were very few in
18number. There was three of us, four if you include
19an Afghan officer. One of the three was doing
20embassy-wide communications.
21 So there were really only two of
22us doing policy issues, and this was a period
23around -- in the buildup to, around, and then in
24the aftermath, of Operation Medusa. And there were
25some very serious problems, and a great deal of
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1serious problems which we really were struggling to
2get on top of, and we were badly understaffed and,
3frankly, overworked.
4 So I simply didn't have as much
5time as I would have liked to devote to any one
6issue. If we had the dedicated pol/mil officer, we
7would have had that information base, but I was
8dealing with the pol/mil on a part-time basis.
9 So this was one of those issues
10that I sort of knew about as something that needed
11more attention, but we got at some of the aspects
12in this human rights report. But I think we
13weren't yet at the point where we felt we were
14ready to weigh in with what would amount to a
15frontal attack on the core policy.
16 Q. Would you agree that if you
17didn't feel you were in that position, it is
18possible that the CEFCOM Commander, the Task Force
19Commander and the Provost Marshal similarly didn't
20feel they were in a position to confront the policy
21or to weigh in on the matter?
22 A. I wouldn't extend that, no.
23I think they were in a quite different position.
24 So the differences are that -- so
25first we were in Kabul. They're in Kandahar. And,
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1you know, in Kabul we're dealing with embassies.
2We're dealing with the Afghan government. We are
3dealing with NATO and the UN. All the detainee
4management is in Kandahar.
5 This was one issue among maybe 15
6we had to deal with. The Provost Marshal, this is
7his meat and potatoes. In general, DND had a lot
8of people. They had about 2,000 people. In terms
9of DFAIT, you could count them on one hand at the
10time. You know, we had one person in the PRT. We
11had one person at KAF. We had two officers in
12Kabul, plus the communications officer and the
13ambassador, but he was dealing with a whole range
14of issues, including administration.
15 But the Task Force had over 2,000
16people. It had MPs, people who dealt full time
17with, you know, these issues, including detainees.
18And as for CEFCOM, the commander, yes, he is in
19Ottawa, but I believe in his testimony he
20identified detainees as one of three big issues
21that they focussed on, were focussing on at the
22time.
23 The final aspect is, ultimately,
24it was their policy, CEFCOM's, Canadian Forces'
25policy. They created it and were managing it, so
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1they should have understood it. It was hard for
2us, as I mentioned, to get information, partly for
3geography because we in Kabul, but partly because
4of relations between DFAIT and Canadian Forces,
5which, at senior levels, were quite strained and in
6the field were quite strained. Not with everybody,
7by any means.
8 Individual working levels,
9relations were often very good and collegial and
10effective, but at high levels there were serious
11frictions.
12 Q. Just to digress for a minute,
13something you said sparked something in my mind.
14You said that this policy was their policy, the CF
15policy. I assume you are referring to the policy
16reflected in the December 2005 agreement?
17 A. Yes.
18 Q. And then --
19 A. Partly that, and then partly
20how the arrangement was in fact implemented.
21 Q. So in May 3, 2007, there is a
22supplementary agreement in which DFAIT now assumes
23some responsibilities for follow-up.
24 Was there a feeling that CF had
25fumbled the ball? If it was their policy that in
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1effect is being replaced with a new regime, was
2that part of the thinking, that basically they had
3dropped the ball on this?
4 A. Was it my thinking, or more
5general thinking?
6 Q. Well, no, I am really not
7interested in your -- well, I am very interested in
8your personal opinion. Maybe we can talk about it
9over a beer some time, but in terms of your being
10at the embassy in Kabul when this arrangement took
11place and being privy to official communications,
12and so on, I am just wondering if you can provide
13some insight into the -- into what I've just said.
14 If not, that's fine.
15 A. Sure. I can give you my, I
16guess, assessment based on my vantage point. I
17think -- I don't know if there was a sense in DFAIT
18generally that DND had dropped the ball. My sense
19was that the messages I got from headquarters on
20this were somewhat protective of what CF was doing
21and what DND was doing. They didn't seem to be
22challenging them or criticizing them.
23 Nevertheless, the policy was
24clearly badly flawed and was not doing what it was
25supposed to do, and that became more and more
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1apparent with, frankly, outside scrutiny, legal
2scrutiny in the form of legal challenges and media
3coverage.
4 And the media quite early on
5identified what was wrong with the policy, and
6that, you know, media and other scrutiny came to a
7head in April of 2007, and that led to media,
8public, political pressure, and it was only that,
9in my view, which led to the change.
10 Up to that point, the government
11as a whole seemed to have been fairly content with
12how we were doing things.
13 In the field, personally, I mean,
14the view, my own awareness evolved, but I think by
15around December 2006, I had this sort of sense that
16this was -- there was a rock and, if you lifted the
17rock, you would find a lot of, you know, ugly
18things, creepy-crawlies under the rock. And I
19wanted to know enough, when we got to the point of
20perhaps trying to lift up the rock.
21 Q. Now, just to finish up my
22questions on your human rights report, do you know
23if the Provost Marshal or members of the military
24police would have obtained a copy or had an
25opportunity to read this report?
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1 A. They would have had the
2opportunity, and fairly -- I am a little
3constrained from answering, because I don't have
4the cover sheet which -- and the distribution list
5for this report. So I don't really know anymore
6who it went to. Was it copied to DND?
7 Q. I can't say. I don't know.
8 A. But it is an important report
9in the sense it was the Canadian government's kind
10of intended -- that is the intention of these
11reports. It is supposed to be the authoritative
12Canadian government view on human rights in country
13X. Here country X, Afghanistan, is obviously an
14important country for Canada in 2006.
15 So you would hope people would
16take an interest in it, but who it was given to and
17who read it, I am afraid I have no idea.
18 Q. Okay. Now, the next event
19that seems to be relevant is an interagency meeting
20that you went to in March 2007?
21 A. Yes.
22 Q. And that is discussed in your
23affidavit at paragraph 54.
24 Was the commander of CEFCOM
25present at the meeting?
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1 A. No.
2 Q. But the CEFCOM-J9 was
3present?
4 A. I think so. There is some
5ambiguity about which parts of DND some of these
6people represented. There were two DND reps. One
7I knew; one I didn't. And the one I knew, she has
8kind of jumped around a bit between different parts
9of DND.
10 There are messages which are
11around that time in which she is identified with
12CEFCOM-J9. So my conclusion was that she was a
13CEFCOM-J9 rep. She seemed to be the major note
14taker at the meeting. So to the extent that
15CEFCOM-J9 seemed to have the lead in DND, that
16would also make sense.
17 But I acknowledge I am not 100
18percent sure. She may have gone back to a
19different part of DND by that point. I don't know
20exactly when she changed.
21 The second person, I am not sure
22who that was, the second DND person. It was an
23interagency meeting. I only really knew three
24people, apart from myself, at that meeting.
25 Q. Okay. Now, the two DND reps,
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1one of them, whom you knew, was Ms. Bos?
2 A. Yes.
3 Q. She was the person you
4assumed was the J9?
5 A. Yes.
6 Q. And then there was another
7person there whom you didn't know?
8 A. Yes.
9 Q. Okay.
10 A. I don't want to be too
11didactic about who all of the other people were,
12but my feeling at the time was they were sort of
13the DND contingent, and Mieka I'd know from before.
14Then there was a bunch of people I had never met
15from a bunch of government departments.
16 Q. Okay. The name Gabrielle
17Duschner, did that mean anything to you at the
18time?
19 A. No, I don't think so.
20 Q. Now, you said that at this
21meeting you spoke very directly to the issue of the
22treatment of detainees who were transferred to
23Afghan authorities. Can you recall what you said?
24 A. Yes.
25 Q. Can you tell us?
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1 A. I can, and I didn't -- this
2was the first detainee meeting I had been to in
3Ottawa. I had always been dealing with it from the
4field, and it just so happened it was taking place
5that week and I happened to be in Ottawa and I was
6invited along by Eric Laporte.
7 And it was an interagency meeting.
8There was maybe 12, 15 people around the table, so
9it seemed like a good opportunity to make sure that
10they understood what was happening.
11 I did have a sense that maybe --
12you know, there is a format with diplomatic
13reporting which, you know, encourages sort of, you
14know, careful use of language and can be slightly
15restrained.
16 And I had this idea that, you
17know, maybe these messages we had been sending in
18hadn't fully registered, and sitting at this table
19listening to people talk, I did get the sense there
20was -- that the dimension of the problem had not
21been grasped.
22 So I worked on it ahead of time
23what I was going to say. I said it as clearly as I
24could, and that was that, you know, by that point,
25detainees were being given to the NDS, the Afghan
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1intelligence service.
2 So I said, you know, the NDS
3tortures people, that is what they do, and if we
4don't want to have detainees tortured, we shouldn't
5give them to the NDS.
6 That was my primary intervention
7at that meeting.
8 Q. Okay. And in your affidavit,
9you say that at this point you observed the person
10you described as the J9 representative put down her
11pen and cease taking notes?
12 A. Mmm.
13 Q. Do you know who it was who
14put her pen down?
15 A. Yeah. That was Mieka Bos.
16 Q. Now, the issue of the
17comments you raised about, The NDS tortures people,
18that is what they do, why did you table that issue
19at this meeting?
20 A. Well, this was sort of what
21the meeting was about, detainees, and it was in the
22context by this point of the challenge, you know,
23the legal challenge, if you like, the complaint
24from Amnesty and the BCCLA. I think that was in
25February, February 21st, maybe, of 2007. This
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1meeting was in early March.
2 There was a great deal of media
3attention still. By this point, I had looked more
4into the question of our detainees and learned more
5about the NDS as an organization, and I had a
6better knowledge base and I felt ready at this
7point to make a more blunt intervention, and having
8the opportunity of being able to, you know, convey
9this information to the whole interagency Canadian
10government team.
11 It was a kind of working level
12meeting, but it was the key people from all of the
13different departments. So it seemed like too good
14an opportunity to waste.
15 Q. Okay. Apart from Ms. Bos,
16did anybody else stop taking notes?
17 A. Well, I think she was the
18only kind of -- she was, like, the main note taker.
19She was, like, from the beginning had been -- you
20know, often there is one note taker for the
21meeting.
22 So she was, in my memory, the only
23one taking notes, and she was certainly the only
24one I observed stop taking notes.
25 Q. Did you speak to her about it
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1afterwards?
2 A. No. No. I found it -- it
3was very unusual, though.
4 Q. So after you raised this
5issue and sort of tabled this comment, 'The NDS
6tortures people, that's what they do, and if we
7don't want our detainees to be tortured, we
8shouldn't give them to the NDS', what happened
9after that comment was tabled?
10 A. In the room?
11 Q. Yes.
12 A. There was kind of a bit of
13silence, I think. Some people looked a bit
14uncomfortable. Mieka stopped, was surprised
15enough, or whatever, to put her pen down.
16 It was interesting for me. I had
17been -- by that point, it was clear to me very
18little had been done to fix our detainee problems,
19that these earlier messages had not had any effect.
20Things were continuing as before, essentially.
21 And this wasn't exactly a
22revelation, but this meeting helped clarify in my
23mind what the -- what we were up against. Clearly,
24they felt this was information they could not
25really pass on to their superiors, and their way of
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1dealing with that was to, you know, essentially
2expunge the comments from the record of the
3meeting -- not expunge, but avoid entering them.
4 Q. So did the discussion change
5topics at that point?
6 A. I don't remember doing that.
7I remember sort of hanging there, and then sort
8of --
9 Q. It seems kind of very
10peculiar, wherein this kind of dramatic statement
11gets tabled and --
12 A. Yes.
13 Q. -- people say, 'Well, that's
14very interesting, Richard. Now let's get back on
15topic.'
16 A. Yes. I felt a bit -- you
17know, everyone reacted a bit differently, I would
18say. Some people seemed interested in it, and I
19think some people, you know, it confirmed maybe
20what they already knew, and some felt
21uncomfortable. And what can you say, really, to
22that kind of question -- that kind of comment, I
23mean? I just wanted to make sure that everyone
24knew that, that this was our assessment in the
25field.
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1 And, you know, I wasn't expecting
2anything immediate. I guess I was hoping it would
3be kind of maybe fed back into their superiors.
4And particularly as they had been sensitized, you
5know, I hoped, by what I will call the legal
6challenge and that they would be worried about what
7was going to come their way, and I was hoping that
8we might -- this would help encourage them to fix
9it, that understanding the scope and the enormity
10of the problem would give them the information they
11needed to tackle this problem.
12 But I wasn't expecting that to
13happen in the meeting, obviously, and these people
14were not really decision makers. They were -- as I
15say, it was kind of a working level meeting. So my
16intent was really just to help this information
17filter back into their organizations.
18 Q. At the time of this meeting,
19when you referred to the legal proceedings, is that
20the Amnesty proceedings in the Federal Court in, I
21think it was, February 2007?
22 A. Yes. There was the -- and I
23think at the same time there was -- correct me if
24I'm wrong. The complaint to the MPCC I believe was
25then issued at the same time, maybe even on the
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1same day. I have February 21st in my mind, but I
2stand to be corrected if that is not the case.
3 Q. Right. So you were aware of
4those things at the time of this meeting?
5 A. Yes. And, actually, that
6was -- it helped also to clarify in my mind. You
7know, when I read the Amnesty complaint, I thought,
8well, this is exactly what's happening, and then I
9felt, you know, that maybe I had not been forceful
10enough in alerting headquarters to what was
11happening with our detainees.
12 As I say, it took me a while to
13understand, but by early 2007 I had a pretty good
14picture.
15 Q. Okay. Now, in March 2007,
16you make a site visit. I would ask you to go back
17to Collection E, tab 30. This email appears to
18refer to a visit to a detention facility in March.
19 A. Hmm-hmm.
20 Q. Did you personally make this
21visit to the detention facility?
22 A. Yes, I did.
23 Q. Did you personally speak to
24the warden who is referred to here?
25 A. I don't think I did.
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1 Q. Okay.
2 A. I was part of a delegation
3and, you know, the warden briefed the delegation.
4 Q. Do you recall if this visit
5took place before or after the interagency meeting?
6 A. It would have been after.
7 Q. Okay.
8 A. So the interagency meeting, I
9was in Ottawa and it was when Mr. David Mulroney
10had -- he had been appointed in February, but he
11came during that week and he gave a speech in our
12main auditorium in DFAIT to anyone interested in
13Afghanistan, which turned out to be a lot of
14people. It was full, and I was there.
15 I listened to his speech and went
16up and had a few words with Mr. Mulroney
17afterwards, and he -- we discussed that he was
18going to soon come out to Afghanistan. I wanted to
19talk to him and talk about some of the issues that
20I felt needed discussing.
21 He said, Well I'll be coming out
22very soon and we can talk then. So this was that
23visit. We went down, and I am pretty sure the
24visit to this facility was part of this program we
25set up for Mr. Mulroney as a kind of introductory
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1tour of Afghanistan in his new capacity as
2Associate Deputy Minister of DFAIT.
3 Q. I may have actually
4misunderstood. The KAF detention facility you are
5talking about in this email is the CF?
6 A. That's right, yes.
7 Q. So the warden, who is the
8warden?
9 A. He's the Canadian officer.
10 Q. Okay.
11 A. Yeah. This is like a
12temporary place where you would hold detainees
13before transferring them within 96 hours to the
14Afghans.
15 Q. Right, okay. Then now the
16date of this email is May 4, 2007, so the new
17supplementary arrangement is now in place?
18 A. Hmm-hmm.
19 Q. And under paragraph 2, the
20first bullet point says:
21 "It would underline DND
22 ownership of detention.
23 DFAIT would assume
24 responsibility for follow-up
25 once a detainee is
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1 transferred to GoA."
2 Which is Government of
3Afghanistan. So does this accurately reflect the
4regime that existed now after May 3, 2007; in other
5words, that DFAIT assumed responsibility for
6follow-up after transfer?
7 A. Yes.
8 Q. Okay. And when it says "DND
9has ownership of detention", does that ownership
10mean during the period of time the detainee is
11actually in the custody of the CF?
12 A. Yeah. Here the idea was to
13make a different point, which was that they weren't
14just a mechanism for handing off detainees, but, in
15fact, there was a period of responsibility which
16extended beyond the hand-off.
17 So under the original proposal, it
18was DFAIT that would inform the ICRC and the
19Afghanistan Independent Human Rights Commission,
20who, as of March, were being informed and were
21doing monitoring. That was going to be a DFAIT
22responsibility as part of our sort of post-transfer
23follow-up.
24 Our idea was, and I think this was
25adopted, that ICRC certainly wanted this, too, but
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1we should inform them, while we still had them, you
2know, while they were still in Canadian custody,
3while the Canadian Forces still had them.
4 That is the point at which ICRC
5and AIHRC would get involved, and then the -- that
6would sort of also help reinforce the idea that
7monitoring isn't just something that is a DFAIT
8concern, that the monitoring or I guess, more
9generally, treatment of detainees is also -- it is
10a whole-of-government issue, if you like; that even
11if we break it down into detention, and then
12monitoring, with DND having a lead on detention and
13DFAIT having the lead on the monitoring, they would
14still fit it within the whole-of-government
15framework in which all parts of the system have
16roles, and that one organization doesn't sort of
17wash its hands of its role simply because it is
18transferred.
19 Q. Well --
20 A. I don't know if that is a
21clear answer or not.
22 Q. One of the issues I have had
23in my mind about the whole-of-government approach
24is the notion that if everybody is responsible for
25something, nobody is responsible for something.
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1 And I would assume -- have to
2assume that there was some demarcation of various
3responsibilities amongst various government of
4Canada entities.
5 In other words, you have a
6whole-of-government approach, but, you know, CF,
7here is your mission. DFAIT here is your mission.
8Correctional Services, here is your mission. CIDA,
9here is your mission.
10 Notwithstanding it is a
11whole-of-government approach, the various
12government organs who are involved know where the
13responsibilities begin and end.
14 So what I am interested in knowing
15is if people come before the Commission and say,
16Well, look, at least after May 3, 2007, following
17up with what was happening to detainees and
18investigating allegations of abuse was not my --
19not within my jurisdiction as an MP, because that
20responsibility at that point went to somebody else,
21went to DFAIT.
22 And can you comment? Is that sort
23of an accurate perception of how the
24whole-of-government approach was being
25operationalized?
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1 A. To answer your question, I
2would like to refer to the standard operating
3procedures, if I may.
4 Q. All right.
5 A. I am just flipping through
6the tabs. I found the draft. I think it is the
7first draft of -- that's behind tab 29.
8 Q. Okay. Is that in the same
9book?
10 A. Yes, Collection E.
11 Q. Okay.
12 A. Twenty-nine. I am just not
13sure if there is a final version of the SOPs in
14here, or not.
15 MR. PRÉFONTAINE: You find it in
16the main book of documents, volume 2, tab 27.
17 MR. LUNAU: Thank you, Mr.
18Préfontaine.
19 THE WITNESS: Okay, good.
20 So these are -- if I can give you
21my kind of overview, if everyone has them, it's the
22same document, but in an earlier draft form, and
23then a later finalized form. It took a while to
24finalize it.
25 There was an earlier finalization
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1that took place in early May. By the middle of
2May, we had kind of finalization in the sense that
3various parties, including us in the embassy, had
4passed in our suggestions, our ideas, and they had
5been -- all of these inputs had been incorporated.
6 But they weren't final in the
7sense there was a process then of implementing them
8on the ground and learning lessons from
9implementation and trying to refine further
10documents.
11 So this July 20th one, which is
12behind tab 27 of the main documents for the
13witnesses, volume 2, I can't say this is the final,
14final one. Obviously this is a much more advanced
15version, and, unfortunately, there is a big chunk
16blacked out. But, anyway, that is maybe not going
17to inhibit answering the question.
18 So, essentially, what this
19attempts to do is to integrate all of these
20different actors into a whole-of-government
21approach on the post-transfer -- not even the
22post-transfer follow-up. It is who has
23responsibility, when, from detention, up until the
24point we decide we are not responsible anymore,
25which I think was sentencing, although that may
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1have changed, and then, within that framework, who
2is responsible for which aspects.
3 And that includes, to answer your
4question, I mean, there was certainly in an earlier
5version -- and maybe it is not in this. Maybe it
6is part of the blacked-out one.
7 But in the earlier version -- Let
8me look.
9 There is another one, too, which
10would be the midnight version. I don't know if we
11have that, which is the version after the first
12inputs had been collected. Does anybody know if
13that is part of the package? No.
14 In general terms -- and I don't
15think I would be violating any section 38 issues
16here -- it was intended to be, and there was indeed
17built into the SOPs, a mechanism by which
18information gathered by one government department
19would be fed back into the other government
20departments.
21 And, specifically, here I am
22talking about information generated from site
23reports. So DFAIT took on -- David Mulroney agreed
24that DFAIT would take on the monitoring function.
25Those monitoring visits would generate reports.
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1Detainees would be interviewed.
2 We would collect information from
3those detainees, and then these reports -- this was
4the idea -- would be fed back to relevant actors,
5including the people who were transferring the
6detainees, in this case, the Canadian Forces, the
7military police.
8 So the idea was for the military
9police, Canadian Forces, based on these visits -- I
10mean, the idea was, certainly in the earlier
11versions, these visits would be frequent enough so
12that we would feel confident that the detainees we
13transferred would not be tortured after transfer.
14 And, you know, you would have to
15have somebody who would decide on the frequency of
16visits, and also make sure the visits are serious
17enough to generate the information that would
18provide the confidence to continue transferring.
19Then if you transfer, you know, a large number of
20detainees and you are confident those are not
21tortured, then you might be able to start reducing
22the frequency of monitoring, just kind keep an eye
23on it, but without such a rigorous or intrusive
24level, as would be required at the beginning.
25 That information generated from
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1these detainees would provide the commanders on the
2ground, military commanders and military police,
3with the confidence that the people they were
4handing over would not be tortured.
5 That was one of the intents of the
6SOPs. It was made explicit in the -- I think the
7mid-May version, but I think it is probably -- if I
8was to sit and read through this, it would be kind
9of in an early form. This was the earliest form of
10the SOPs in here, as well.
11 That was the model that was drawn
12up, so, in that sense, a whole-of-government model,
13you know, with a feedback loop, if you like, to
14ensure the information was properly distributed to
15those who needed it and had to make these very
16difficult decisions about whether it was safe to
17keep handing people to the NDS.
18 Q. Okay.
19 A. As an editorial comment, the
20system didn't work that way, I believe, in
21practice. I think it didn't work really anything
22like that, but that was the intention and this was
23I think what is embedded in the SOPs.
24 Q. Okay. I have some questions
25about the SOPs while we are here, but this might be
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1a good time to take a break.
2 THE CHAIR: Yes. We will take our
3lunch and we will resume at 1:30.
4--- Luncheon recess at 11:58 a.m.
5--- Upon resuming at 1:30 p.m.
7 Mr. Lunau.
8 MR. WALLACE: Mr. Chair, it's Mark
9Wallace here.
10 THE CHAIR: Sorry, yes. I like to
11know where you're coming from.
12 MR. WALLACE: We are going to lose
13sight of each other pretty soon here.
14 THE CHAIR: Yes.
15 MR. WALLACE: I would just like to
16make an observation and a request of Mr. Colvin,
17actually.
18 As we know here in the room, there
19are a number of people within the Canadian Armed
20Forces who have the title "Provost Marshal" as part
21of their title, and I was wondering if Mr. Colvin,
22when he is referring to someone as "Provost
23Marshal", could be a little more specific in terms
24of exactly which person he is referring to, whether
25by name or by office.
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1 THE CHAIR: I think that is
2reasonable. There are several. I think you know
3which ones they would all be.
4 THE WITNESS: Yes, very good.
5 THE CHAIR: Okay. All counsel is
6fair with that?
7 Mr. Lunau.
8 BY MR. LUNAU:
9 Q. Now, before the break, Mr.
10Colvin, we were looking at the SOPs in the document
11book, volume 2, tab 27.
13 Q. Okay. These SOPs, this
14particular set, is dated July 20, 2007. I gather
15we don't know if this is the final iteration of the
16SOPs or not; is that true?
17 A. Yes, correct.
18 Q. Now, there are just a couple
19of paragraphs I would like to ask you about.
20 First of all, these SOPs were
21developed as a consequence of the May 3, 2007
22supplemental agreement?
23 A. Correct.
24 Q. Okay. So, in effect, they're
25intended to -- we keep using this word
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1"operationalize", but that was their intention?
2 A. Yes, to flesh out,
3operationalize, and so on, yes.
4 Q. So in paragraph 8, the SOPs
5provide that:
6 "DFAIT will regularly share
7 with the Canadian Forces its
8 reports regarding the
9 conditions of the facilities,
10 holding detainees transferred
11 by the Canadian Forces and an
12 assessment of compliance by
13 Afghan authorities with the
14 Canada-Afghanistan detainee
15 transfer arrangements." (As
16 Read)
17 To your knowledge, were such
18reports provided to the Canadian Forces by DFAIT?
19 A. That's a hard one for me to
20answer, because especially as time went on, I,
21myself, began not to be copied on these reports.
22 So the distribution list was
23reduced to a very few people and I wasn't always
24privy to these reports, myself. So it is hard for
25me to say what happened to them and who they went
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1to.
2 Q. Okay. And then paragraph 9:
3 "While DFAIT leads in the
4 implementation of these SOPs,
5 this remains a whole-
6 of-government effort and will
7 require continued
8 contributions and expertise
9 from a variety of Canadian
10 government departments and
11 agencies." (As Read)
12 It lists some of them there, and
13then they say:
14 "The following lists the
15 primary roles and
16 responsibilities of selected
17 authorities or departments,
18 agencies." (As Read)
19 The second bullet point:
20 "The Canadian Embassy in
21 Kabul and the Canadian
22 Ambassador have a central
23 role in the coordination of
24 Canadian post-transfer
25 follow-up requirements, with
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1 the assistance of other
2 relevant Canadian actors."
3 (As Read)
4 Now, were you at the Canadian
5embassy in Kabul at this time?
6 A. Yes, I was.
7 Q. So did you have any
8involvement in what is being discussed in this
9particular bullet point?
10 A. Yes. Yes, I did, especially
11in, I would say, May and June of 2007. As time
12went on, as I mentioned, I began to be, I would
13say, cut out, but at the beginning I was very much
14involved.
15 So, for example, I helped draft
16the embassy's comments on the very first cut of the
17SOPs, and was involved with what you might call
18policy questions, but, as I said, after a couple of
19months, that began to peter out.
20 Q. Right, okay.
21 Then the next bullet point:
22 "DFAIT personnel at Kandahar
23 Air Field, the Provincial
24 Reconstruction Team and the
25 Embassy are responsible for
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1 assessing the condition of
2 the detainees transferred by
3 the Canadian Forces and
4 conduct appropriate follow-up
5 measures in accordance with
6 agreed procedures and in
7 consultation with the
8 Ambassador..." (As Read)
9 And some others. So, again, given
10this is a task assigned to the embassy, were you
11involved in assessing the condition of detainees
12and follow-up measures?
13 A. Yes, I was.
14 Q. Okay. And then the last
15bullet point:
16 "DND is responsible for the
17 detention, release or
18 transfer of individuals and
19 retains appropriate records
20 for detainees in their
21 custody, provide legal,
22 medical, technical and
23 logistical and force
24 protection support for DFAIT
25 and other government
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1 departments in the conduct of
2 post-transfer follow-up
3 measures." (As Read)
4 Now, it seems pretty clear to me
5that after the May 3, 2007 agreement and the
6arrangement reflected in these SOPs, it was pretty
7clearly that DFAIT was taking responsibility for
8post-transfer assessment, the condition of
9detainees and follow-up measures, and DND was
10responsible for detention, release or transfer,
11which I would understand to mean the DND
12responsibility ended at transfer and the DFAIT
13responsibility then picked up.
14 Is that a fair understanding?
15 A. Yes, in terms of what we call
16in government the lead responsibility. So,
17essentially, it went from a DND lead to a DFAIT
18lead, but I think even in this, you know, little
19delineation of roles and responsibilities,
20nevertheless it's presented still as a
21whole-of-government package.
22 So, for example, DND, yes, is
23responsible for detention of these -- or transfer
24of individuals, but even afterwards they have
25assigned roles. So in the conduct of post transfer
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1measures, they are to provide legal, medical
2technical and logistical and force protection
3support for DFAIT.
4 So what it means is, yes, DFAIT is
5the organization tasked with the actual monitoring,
6but DND is required to, for example, get the teams
7to the facilities. So you had to have force
8protection, meaning on the convoys and soldiers to
9ensure they arrived safely and left safely.
10 Plus here we have a reference to
11legal support, because the only lawyers in theatre
12were JAG lawyers, DND lawyers. I'm not sure what
13technical is, but medical, if that is needed.
14 So there was still a role, an
15explicit role, for DND enabling the monitoring to
16take place, but the actual monitoring was to be led
17by DFAIT, yes.
18 Q. And amongst the supporting
19roles, I don't see any reference to investigative
20support. DND and, in particular, the military
21police, whom we are concerned with here, did they,
22after May 3, 2007, have any investigative
23responsibilities with respect to post-transfer
24treatment of detainees?
25 A. That's a good question. As
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1you say, it doesn't seem to be provided for here.
2 In practice, the investigations
3were devolved to other parties, meaning the Afghan
4government and the AIHRC, the Afghanistan
5Independent Human Rights Commission.
6 So I think the decision was taken
7that those were the bodies that should investigate
8allegations of torture.
9 Q. All right.
10 A. But you are right, I don't
11think it is made explicit here in the document.
12 Q. Okay. And if I could ask you
13to look at paragraph 19:
14 "In the event that Canadian
15 personnel are made aware of
16 allegations or evidence of
17 abuse, mistreatment of a
18 detainee or detainees
19 transferred by the Canadian
20 Forces during periodic
21 follow-up visits or through
22 other means, DFAIT will enact
23 the diplomatic contingency
24 plan as per Annex B, which
25 could include notifying
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1 Afghan authorities, the
2 AIHRC, UNAMA and the ICRC
3 requesting the establishment
4 of an Afghan investigation or
5 conducting a subsequent
6 follow-up visit and interview
7 with the detainee or
8 detainees as appropriate."
9 (As Read)
10 Again, there doesn't seem to be an
11investigative role for the military police to deal
12with such reports?
13 A. Yes, you are right.
14Obviously, I just looked ahead. Annex B is blacked
15out in its entirety. So I suppose theoretically
16there might be some provision in there, but, as you
17say, according to the summary, it is not mentioned.
18 So I am not sure exactly what is
19on that full menu. Maybe that is one of the
20options. It is hard to say.
21 Q. Similarly, paragraph 20:
22 "Where a detainee appears to
23 be in immediate danger of
24 abuse or in urgent need of
25 medical care due to apparent
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1 abuse, Canadian personnel
2 shall insist that Afghan
3 authorities take appropriate
4 measures and shall notify the
5 AIHRC and the ICRC. If the
6 detainee in question was
7 originally transferred by the
8 Canadian Forces, Canadian
9 personnel may request that
10 Afghan authorities return
11 that detainee to Canadian
12 custody until Canadian
13 personnel are satisfied the
14 detainee is no longer at
15 risk." (As read)
16 So, again, the first responders to
17reports of immediate danger of abuse appear to be
18Afghan authorities, the AIHRC and the ICRC;
19correct?
20 A. Yes, yes.
21 Q. Okay. Now, you said before
22the break something to the effect that while these
23were the procedures on paper, it didn't actually
24end up working out that way?
25 A. Hmm.
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1 Q. Can you explain what the
2difference was? How did what actually happened
3diverge from these written procedures?
4 A. I am just going to look back
5at the first draft, because some of it is blacked
6out in the later one, if you don't mind.
7 Q. Sure.
8 A. Well, there are two aspects
9of it I've identified. One of those aspects is
10something I wasn't necessarily aware of at the
11time, except by guesswork, and that has to do with
12who was getting these reports.
13 So I was certainly aware at the
14time that the distribution was being extremely
15curtailed, which seems to contradict somewhat the
16intention of the SOPs that these reports be shared
17with all appropriate officials, including obviously
18particularly the Task Force Commander in Kandahar,
19officials of the military police, provost marshals
20of whichever kind, officials who would need to be
21informed of what was happening to our detainees
22based on the monitoring reports.
23 And it seemed to me at the time
24that these reports were really being seen by a very
25small number of people, mostly very senior people
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1in Ottawa, who were jealously guarding them to the
2point where instructions began to be written into
3these reports not for forward distribution, just in
4case someone felt the urge to share them.
5 It was expressly prohibited, and,
6you know, this became difficult for us, because --
7"us" being the embassy, you know, in my capacity as
8head of the political section.
9 We did get a pol/mil officer whose
10job would have included detainee affairs. He was
11not permitted to see these reports and was not
12really involved in detainee issues at all, and at
13the time I began not to see these reports either
14and I was supposed to be advising on policy.
15 So the information was not being
16shared in a form I think envisaged by the SOPs.
17 The second aspect, which is maybe
18more serious yet, is the -- I am not sure this is a
19violation of the letter of the SOPs, but I think it
20is a violation of the spirit of the SOPs, and that
21is the frequency of visits, of monitoring visits,
22and the underlying question of how many detainees
23are actually monitored.
24 The spirit of the SOPs is, you
25know, to monitor if not all of the detainees,
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1although that would be ideal, then a large enough
2pool that we have a good sense of what has happened
3to them and what is happening to them.
4 By what happened to them, I mean
5the large number of detainees who had been taken up
6until the May 3rd agreement, and I believe the
7exact number has been redacted out, but it is a
8number with three digits in. It is a substantial
9number, and then the freshly detained Afghans,
10which is the post May 3rd pool.
11 So both groups required
12monitoring. They required monitoring, I would say,
13according to the spirit of the SOPs, in sufficient
14numbers to ensure that we had a good sense of what
15had happened to the first group and what was
16happening to the second group.
17 And this I think is where the
18implementation of the monitoring regime really
19broke down, that very few, very few of the first
20group were ever monitored, is my assessment, maybe
21just six, which is a small fraction of the entire
22number, and monitoring of the second group also
23turned out to be not rigorous. And, therefore,
24torture continued even after the May 3rd agreement.
25 So, again, I am not sure you could
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1say this is a violation of the SOPs, because the
2SOPs don't say, I don't believe, you know, every
3detainee has to be monitored or spells out how
4often monitoring should happen, but clearly the
5intent is to provide a rigorous, effective
6mechanism. So in that sense, I would say the
7spirit of the SOPs was not followed.
9you to turn to volume 5 of the witness book, the
10white-covered book at tab number 5?
11 When we looked at the SOPs, you
12referred to Annex B having been blacked out. We
13have in this document what appears to be a copy of
14Annex B dated July 2007.
15 Do you recognize this document and
16the one following, I guess, as Annexes B and C to
17the SOPs?
18 A. Yeah, it looks familiar.
19 I am not convinced I received this
20version of the SOPs, the 7th July version, but I
21certainly saw earlier versions, and this looks
22certainly similar to the ones that had been in the
23earlier version. So it is a familiar looking
24document.
25 Q. So this is some version of
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1the Annex B diplomatic contingency plan that was
2attached to the SOP?
3 A. Hmm, yeah.
4 Q. Now, sir, if I could ask you
5to turn to Collection E, tabs 25 and 26, these
6appear to be two versions of the same email. Is
7that correct?
9 Q. Now, at tab 26, the email has
10a number of strike-throughs and comments written
11in. Do you know who made those changes?
12 A. Yes. That was the newly
13arrived ambassador, Arif Lalani.
14 Q. Can you tell us a bit of the
15history behind this email?
16 A. Sure.
17 THE CHAIR: What was the name of
18the person?
19 THE WITNESS: Arif Lalani, A-R-I-F
20L-A-L-A-N-I. So a little bit of the background is
21that I had -- tell me if I am going off too much on
22a tangent, but, you know, the former Ambassador,
23David Sproule, was replaced quite unexpectedly, and
24so I found myself chargé d'affaires for pretty much
25of the whole month of April. And I had been
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1charging quite often before whenever Ambassador
2Sproule had been away, but never for such a long
3period.
4 And that period happened to be the
5exact month when the detainee issue really blew
6open with the Globe and Mail's article, and so on.
7 So the report here is a report
8based on meetings that were held when Ambassador
9Sproule was away, or hadn't returned, and
10Ambassador Lalani had not yet arrived, so I was in
11charge and went with my colleague, Catherine
12Bloodworth, who was dealing with legal issues,
13justice and human rights, among others, to meet
14with the International Committee of the Red Cross
15and with the UN Assistance Mission in Afghanistan.
16 And this was in the context of
17the, I would say, crisis with detainees, and we
18were meeting with these organizations to, you know,
19try and get some advice from them, frankly, on how
20to fix the problem, and also to understand better
21the nature and the scope of the problem.
22 So the meetings took place on the
2326th, but because it was a very busy period, I
24hadn't had time to write the meeting up.
25 So I think Ambassador Lalani
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1arrived on the 28th, and so when I did the draft on
2the 30th of April, I showed it to him. He had some
3changes, which are reflected in the second copy of
4the -- I guess it is not the second. It is the
5first copy of the message, and then that is the tab
626.
7 And then the version which he
8signed off and went out is tab 25.
9 Q. Okay. Now, if you could look
10at the version on tab 26, initially you appear to
11have intended the email to get fairly broad
12distribution. Did Ambassador Lalani change that?
13 A. Yes, yes, he cut it back
14quite significantly.
15 Q. Okay. And is that his
16handwritten note, "Richard, please go with my
17distribution"?
19 Q. Okay. So it looks like he
20intended it to go to five addressees, Proudfoot,
21Buck, Alexander, KAF, and I really can't make out
22the others.
23 A. Yes. The final one is
24KANDH/Buchan. That is Gavin Buchan, the PRT
25director at the time at the PRT.
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1 Q. Okay. And then looking at
2some of the things he struck out, in the summary he
3struck out the reference to:
4 "ICRC also flagged continued
5 delays in notification by
6 GoC. An average of two weeks
7 passes between detention and
8 notification." (As Read)
9 On the next page, he struck out
10paragraph 9:
11 "[blank] the Globe and Mail
12 reporting [blank] the
13 allegations of abuse made by
14 those Afghans interviewed
15 which Graeme Smith fit a
16 common pattern. More rapid
17 notification would offer
18 better protection to the
19 detainees." (As Read)
20 So that was struck out. He struck
21out paragraph 10:
22 "ICRC first raised concerns
23 about notification delays in
24 June 2006. At the time they
25 also complained that Canadian
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1 Forces were collecting
2 insufficient information."
3 (As read)
4 So on and so on. Do you know why
5he struck out those portions?
6 A. I think at paragraph 10 --
7you know, I should say I don't know for sure, but I
8had a view at the time as to why, so I can share
9with you, if you like, my opinion as to why those
10changes took place. But he never told me, Oh, this
11is why I am deleting these.
12 Q. Do you consider these
13deletions to contain significant information?
14 A. Yes. And, in fact, the
15reason I kept the original, which I had never done
16before that, or since, is because some of the
17information he deleted was the most important
18information in the message, from my point of view.
19 There was some critical new
20information which was essential to this message,
21which was removed.
22 Q. So these were not -- in your
23mind, these were not just editing changes. These
24were substantive changes to the content?
25 A. Yes. On paragraph 10, my
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1view at the time and my view today is that this was
2considered a sensitive paragraph, because it showed
3or it flagged that the problem that had been
4identified almost a year earlier by the ICRC had,
5in fact, not been fixed. The same problems almost
6a year later continued.
7 And without -- Yes, without
8getting into what is in the blacked-out areas, some
9of those areas relate to these points.
10 Q. Okay. So the email was
11subsequently sent without this information?
13 Q. Okay.
14 A. And to the --
15 Q. To the limited --
16 A. And to the limited number of
17people.
18 Q. Did that become a permanent
19change?
20 A. Yes. You know, the exact
21people, you know, changed a little bit. Some
22people would be added and some would be taken away.
23But, essentially, detainee messages were no longer
24sent to this kind of distribution list -- I am
25showing what was there before -- but to a handful
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1of carefully selected individuals, and then a later
2adjustment around August was a line began to be
3added "not for forward distribution", to further
4ensure that it reached only those individuals
5specified in the message.
6 Q. Okay. Do you have the book
7Collection B in front of you?
8 A. I do.
9 Q. If I could ask you to open it
10up to tab 20?
11 MR. PRÉFONTAINE: Which volume?
12 MR. LUNAU: Volume 3.
13 BY MR. LUNAU:
14 Q. Tab 20. This is an email
15from Cory Anderson to various addressees. First of
16all, who is Cory Anderson?
17 A. Cory Anderson has had three
18jobs, to my knowledge, in or on Afghanistan. He
19was first the political advisor to General Grant,
20which was around August of 2006 until early 2007,
21and then he came back to headquarters and he was
22effectively the detainee policy officer.
23 So sometime around maybe May or
24June, the lead responsibility for detainees was
25transferred from the Defence Relations Division,
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1IDR, FTAG, which is the Afghanistan task force.
2 So Cory became the kind of desk
3officer, if you like, who had day-to-day
4responsibility for the detainee file.
5 And then his third job was
6subsequently he was the political director for the
7PRT, and that was after this position. That was
8his third and I think final job in Afghanistan.
9 Q. Okay. Now, is this an
10example of what you had in mind when you said that
11communications began to be marked "not for forward
12distribution"?
13 A. Yes. This was -- there had
14been earlier versions of this message that were
15sent out I believe in August signed off not by
16Cory, but by someone much more senior.
17 This was, I would say, a follow-up
18message. But, yes, that is what I mean.
19 Q. Okay. And so what Mr.
20Anderson is saying to the various addressees is:
21 "Please note that all future
22 reports of visits to
23 facilities will be only
24 distributed to these
25 interdepartmental addresses.
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1 In addition, the reports and
2 all messages regarding the
3 reports are not for forward
4 distribution. We trust that
5 you understand the necessity
6 of these restrictions.
7 Thanks, Cory." (As Read)
8 Is this what you had in mind when
9you said that -- when we were talking about the
10SOPs, that reports began to be restricted in their
11distribution?
12 A. Yes. This was -- so the
13first stage was to cut down the numbers, as in this
14April 30th message. But, you know, the April 30th
15one, for example says -- this was one of Ambassador
16Lalani's handwritten comments, "We leave further
17distribution to FTAG", the Afghanistan Task Force.
18 So they were given certain amount
19of discretion to decide who should get these. So
20the -- but starting off with a very small number.
21This was, I guess, the next phase now, which was to
22prevent any such forward distribution, making
23explicit that it is for these people and these
24people only.
25 Q. So let's see who the selected
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1few are here. We have, in Mr. Anderson's email,
2the Privy Council Office, Foreign and Defence
3Policy; NDHQ Ottawa ADM(POL). That was who the
4CEFCOM-J9 worked for, I believe. Don't know?
5 A. No. Sorry, CEFCOM is
6separate to ADM(POL).
7 Q. Oh. The NDHQ+CEFCOM-J9 C4R,
8Public Safety C4R, Kerry Buck, Christopher Gibbins.
9 So were you on the distribution
10list here?
11 A. No.
12 Q. Okay. So you are out of the
13loop?
14 A. Hmm-hmm, yes.
15 Q. Okay. And Mr. Anderson is
16saying, "We trust you understand the necessity of
17these restrictions."
18 Do you understand the necessity of
19these restrictions?
20 A. Well, I understand the
21rationale for the restrictions.
22 Q. Okay. What is the rationale?
23 A. Well, the rationale is that
24every time we interviewed a detainee who told us he
25had been tortured, that quickly was, you know,
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1publicized. Prison cases were announced, and, you
2know, stories were quickly written in Canadian
3newspapers and Canadian media, and obviously there
4was a great deal of sensitivity about who got to
5see these reports and the information contained in
6the reports.
7 So the rationale would be to
8ensure that as few people as possible were privy to
9that information, that highly sensitive
10information. That would be my reading of that
11line.
12 Q. Thank you. If you are you
13are a provost marshal or MP at, say, CEFCOM
14headquarters or Task Force headquarters, you are
15not on the distribution list. So you would only
16have knowledge of these site visit reports if one
17of these addressees chose to share it with you; is
18that correct?
19 A. Yes. There's one loophole I
20see in this, which is that if you look at the
21different addresses, some are individuals, like
22Christopher Gibbins, Kerry Buck -- Kerry Buck is
23actually the stand-in for David Mulroney, but that
24is another issue.
25 Cindy Termarshuizen, and then some
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1of the institutions like public safety, if you go
2to the distribution line, which is below where it
3says "Secret CEO, Not For Distribution", and then
4it spells out who in public safety, "Please pass to
5Deputy Minister."
6 However, the distribution
7specifies in most cases exactly which individuals
8should get them. That is not really done for
9CEFCOM-J9. So according to this, CEFCOM-J9 in its
10entirety is the recipient, and, depending on how
11they define that, that CEFCOM-J9, I mean, it could
12extend right down into Kandahar. In fact, that
13would be my expectation.
14 These were sort of vertically
15structured, if you like, and so the people in the
16field under this distribution could still have got
17the message. That would depend on how you
18interpret CEFCOM-J9, but there is no restrictions
19spelling out who exactly in CEFCOM-J9 should get
20it. So it could be that everyone would receive it
21who is part of that silo, if you like.
22 Q. Yes. It could be?
23 A. Yes. It is ambiguous.
24 Q. Yes. And the Canadian Forces
25Provost Marshal is not in the loop here. On the
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1face of it, the CEFCOM Provost Marshal isn't one of
2the select few. The Task Force Headquarters'
3Provost Marshal isn't one of the select few.
4 So, as I said earlier, it would
5seem, if they are to receive reports of site
6visits, it is really dependent on one of the
7anointed ones passing it to them?
8 A. I agree.
9 Q. Okay.
10 A. Which here, as you point out,
11they're not allowed -- no one is allowed to pass
12these to anyone. They're not for forward
13distribution.
14 Q. So it would seem, then, it is
15really and truly these reports are being limited to
16a very, very select group of people who are told
17not to pass them to anybody else?
18 A. Yes.
19 Q. So unless you are one of
20these addressees, the evidence would seem to
21indicate that you would not see these site visit
22reports?
23 A. Yes. There is something a
24little confusing about this, which creates a new
25ambiguity, which is the following -- right.
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1 So this is -- the top part is
2forwarding a message which is pasted below, right,
3the KANDH-0048 of June 29th.
4 I mean, clearly, there are people
5in the field who are producing the site reports,
6and in this, you know, June 29th message it is, you
7know, listing people who are actively involved
8either in site reports or who have a direct stake
9in knowing about the site reports.
10 It could be that the top message
11is addressed to the headquarters people, who may be
12receiving these site reports, trying to ensure that
13no one else in headquarters receives them. But it
14may not be regulating the field distribution.
15 On the surface of it, what they
16have in the top is impossible, because on that
17basis the people who are conducting the site
18reports themselves would not be allowed to get
19their own reports.
20 So I would read this perhaps as a
21supplement to the distribution in the 0048, rather
22than an exhaustive list of those who are the
23anointed ones, as you say. But it is phrased in a
24confusing fashion. It could be read either way,
25but it seems to me it is probably more likely that
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1it is a supplement, and that the people in 0048,
2for example, KANDH-KAF, Kabul head of mission,
3there is no way the head of mission at Kabul would
4not be allowed to get the reports.
5 So I think this is like a second
6phase of distribution. It is still a very limited
7number of people, but it is not quite as limited as
8implied in the top.
9 Q. Okay.
10 A. And then there is a new
11ambiguity, which is that these strict restrictions
12may only apply to the top people and not to these
13lower people.
14 So KANDH-KAF, that's the POLAD's
15Task Force Afghanistan commander. He is working
16for the Task Force Afghanistan commander, and I
17don't think there is any way the Task Force
18Afghanistan commander would not insist that he see
19those reports produced by his subordinate.
20 Then there may be lots of people
21in the task force, including the provost marshals
22in the field, who were getting these reports. It
23is not ruled out. In fact, it is, I would say,
24logical.
25 I think what they're doing is,
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1when I look at this, making sure that as few people
2in Ottawa as possible see them, father than
3preventing people in the field from seeing them.
4But I am just giving you my interpretation looking
5at this. It is strangely worded, I agree, and it
6is not entirely clear cut.
7 Q. Yes, yes. I am just glad I
8didn't get it, because I wouldn't have known who I
9could show it to.
10 A. Yes.
11 Q. Okay. Now, coming to one of
12your most important, I guess, reports, you made a
13visit to the NDS facility in Kabul on or about June
145th and 6th.
16 Q. And your email report is at
17tab 33, Collection E. Now, during the course of
18this visit, you had a chance to personally
19interview four detainees?
21 Q. Okay. And the four detainees
22had purportedly been identified as Canadian
23transferees?
24 A. Yes.
25 Q. Were you able to confirm they
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1had been transferred by the CF?
2 A. We were subsequently able to
3confirm that certainly one and probably two of the
4four were transferred by the CF, yes.
5 Q. Okay. Had they been
6transferred prior to or after May 3, 2007?
7 A. Prior to May 3.
8 Q. So they were part of what you
9called the initial pool --
11 Q. -- detainees? Did anyone
12accompany you on this visit?
13 A. Yes. We did it over two
14days. It took a bit longer than we anticipated,
15and the institution closed on the first day. So
16the delegation changed slightly. One person
17dropped off because he couldn't come on the second
18day, but it was, on day 1, myself, Catherine
19Bloodworth, who, as I mentioned is -- she was my
20colleague subordinate who was dealing with human
21rights issues, among others.
22 We also had Brian Szwarc, who was
23the senior embassy management and consular officer,
24and here what is important is the consular party
25had training in consular cases and identifying
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1torture, and so on. He came on the first day.
2 We also had locally engaged staff,
3someone who worked at the embassy, who was a fluent
4Pashtun speaker, to interpret for us.
5 Then on the second day, it was
6myself, Catherine and the interpreter. Mr. Szwarc
7was unable to come because of a prior commitment.
8 Q. Now, the email speaks for
9itself, but, in essence, I guess the summary is
10really in paragraph 3:
11 "Of the four detainees we
12 interviewed, three said they
13 had been whipped with cables,
14 shocked with electricity
15 and/or otherwise 'hurt' while
16 in NDS custody in Kandahar."
17 Did you and the other individuals
18who accompanied you on these interviews consider
19these stories to be credible stories?
20 A. Yes. I would say highly
21credible.
22 Q. Okay. And on what basis?
23 A. Well, one advantage we had is
24that these individuals were no longer in Kandahar.
25They were removed from the area of what we assessed
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1to be greatest risk and were in a facility that was
2far from the front lines that was generally
3assessed to be quite a safe facility, and that was
4reinforced by our visual impressions of the site.
5 What that means is these people
6were able to talk more freely than if they were if
7they were, for example, in Kandahar at the NDS
8facility in Kandahar, even Sarpoza in Kandahar. So
9that made it easier for us to get information.
10 Secondly, each individual gave a,
11you know, different sort of story, went about the
12interview a different way. One refused to talk to
13us. We had a very brief discussion, and then when
14we got to the issue of treatment, he simply
15declined to continue, so he dropped out.
16 But the others, none of the three
17alleged abuse or torture at the beginning. They
18talked about mundane things like how often they're
19allowed out, whether they're allowed visitors, and
20they all told us how well they were being treated
21in the facility.
22 It was only well into each
23interview, when we pushed them on what happened in
24Kandahar, that they alleged torture, and each of
25them had a -- spoke about it in quite a different
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1way.
2 One kind of shrugged it off as,
3Yeah I got beaten for a couple of days, but that's
4all. One made -- a couple made more explicit
5allegations of what was done to them, and in all
6three cases there were physical marks on their body
7which corresponded to the abuse they were alleged
8to have suffered.
9 So we spent a long time with each
10of them, up to an hour, and, you know, the
11assessment that we collectively came to, that these
12were, yes, highly credible accounts.
13 Q. Okay. Now, the distribution
14list is much reduced from your earlier emails?
15 A. Yes.
16 Q. What was the reason for that?
17 A. Well, this is the -- you
18know, the new format, if I can use that, you know,
19the post April 30th format of reduced
20distributions, and that was a change that began
21with the arrival of the new ambassador.
22 Q. Now, I'm sorry to have to
23take you to another book of documents, but if I
24could ask you if you could just sort of keep this
25one open in front of you --
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1 A. Hmm-hmm.
2 Q. -- and turn to volume 2 of
3your white books, tab 49.
4 Now, page 287, the small page
5numbers at the bottom of the page in the centre,
6outside the black border, this is another copy of
7your email, albeit differently redacted from the
8one we just looked at.
9 If I could ask you to go forward
10in the tab, there is another email. I don't know
11who it is sent from. It is dated June 5, 2007, but
12the same date as your visit. That states, "As per
13the diplomatic" --
14 A. Sorry, I don't --
15 Q. Are you trying to orient
16yourself?
17 A. Yes. When you say go
18forward, do you mean --
19 Q. To page 278.
20 A. Oh.
21 Q. We are working towards the
22front of the tab.
23 A. Oh, okay. Sure, yes.
24 MR. REES: I believe it is at page
252 of 3.
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1 MR. LUNAU: Yes.
2 THE WITNESS: I see it, yes.
3 BY MR. LUNAU:
4 Q. Page 278.
5 "As per the diplomatic
6 contingency plan provisions
7 to respond to allegations of
8 abuse, gratefully take the
9 following steps to have the
10 allegations investigated."
11 (As Read)
12 Was this, do you know, the
13follow-up to your visit to Kandahar or to Kabul?
14 A. No. This was the follow-up
15to the visit that is described beneath in Kandahar.
16 Q. All right.
17 A. Because we didn't -- we
18didn't complete our visit on the 5th. We were only
19part way in, and we hadn't really got into the meat
20of it, so we didn't have our findings until the
216th.
22 Q. Okay.
23 A. This visit in Kandahar, as
24you can infer, took place before June 5th.
25 Q. Okay. So, in fact, around
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1the 5th and 6th there were two visits, one to
2Kandahar, one to Kabul?
3 A. Yes. Let's say one in
4Kandahar a little bit before June 5th, and then one
5in Kabul on June 5th and 6th, within a few days of
6each other, yes.
7 Q. Okay. And allegations of
8abuse emerged during both of those visits?
9 A. Yes.
10 Q. If I could take you to the
11front page of the tab, which is an email from Kerry
12Buck to Christopher Gibbons, "not for forward
13distribution". So there is that phrase again?
14 A. Right.
15 Q. In paragraph 1:
16 "Further to the instructions
17 below, following the
18 allegation of abuse reported
19 to the PRT during its recent
20 visit to Sarpoza..."
21 Which is the Kandahar prison --
22 THE CHAIR: Excuse me, where are
23you reading from, Mr. Lunau?
24 MR. LUNAU: The first page of the
25tab, paragraph 1:
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1 "Further to the instructions
2 below, following the
3 allegation of abuse reported
4 to the PRT during its recent
5 visit to Sarpoza prison, as
6 well as allegations reported
7 to Kabul during its recent
8 visit to the Kabul NDS
9 facility, HOM has met with
10 National Security Advisor
11 Rassoul to express Canada's
12 concern." (As Read)
13 So there were in fact -- both of
14these visits in June revealed allegations that
15detainees had been or were being abused?
17 Q. Now, at paragraph 4, "The
18question arises", still in the first page:
19 "... As to how we ensure a
20 meaningful investigation,
21 given it is likely the NDS
22 will be investigating
23 themselves. Kabul recommends
24 we ask the AIHRC to
25 investigate these recent
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1 allegations, especially given
2 the assistance we are
3 providing them in building up
4 their capacity to monitor and
5 investigate. As we cannot
6 reveal the names of the
7 individuals involved, the
8 suggestion is that we ask the
9 AIHRC to interview all
10 Canadian-transferred
11 detainees currently held in
12 both Kandahar and Kabul."
13 (As Read)
14 So, again, there seems to be no
15role for the military police to play when these
16allegations came to light?
17 A. I mean, if you would like, I
18can offer some general comments on these messages
19and visits, or not, as you wish.
20 Q. Certainly, I mean, if you
21want to. I am particularly interested, though, in
22terms of whether and what the responsibility was of
23the military police, in terms of DFAIT has now
24conducted its follow-up visits. There are
25allegations of abuse.
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1 How do the military police get
2engaged in this, or do they even get engaged in
3this, because from these documents, it seems, under
4the May 3, 2007 agreement, there is really no role
5for them to play, and, in fact, it is not even
6contemplated bringing them in, in any investigative
7capacity?
8 A. Yes, I think that is --
9that's correct.
10 Q. If you have some context?
11 A. Yes.
12 Q. Go ahead, sure.
13 A. Thanks. At around the
14time -- at the time these decisions were being
15taken on how to conduct investigations, we had
16already received advice, from reliable sources,
17that AIHRC did not have capacity to conduct such an
18investigation.
19 And, you know, this comment that
20Kabul has recommended that AIHRC investigate, I
21would not have made that recommendation or I did
22not make that recommendation because of what we
23knew about the AIHRC.
24 It is a well-intended
25organization, but it has a very, very limited
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1capacity, which we had known for a while. And
2specifically in this area of investigations, the
3advice we had received was that they would not
4really be a suitable organization. Nevertheless,
5they are, as you see here, chosen to conduct the
6investigation.
7 The second comment I would make is
8the Sarpoza Prison visits, which is -- here it says
94th June -- it hasn't been redacted. This is at
10the bottom of the second page, "following visit to
11Sarpoza prison 4 June". So it is a 4th June visit
12to Sarpoza.
13 When I look at this, some things
14jump out at me. One is the very limited
15information provided on who exactly was interviewed
16and what they said. Three of the individuals,
17there is really nothing provided at all. One
18individual simply mentioned that he had been beaten
19with electrical cables.
20 It is followed by what to me is a
21very odd line:
22 "When asked if he required
23 any medical treatment
24 subsequent to this, he
25 indicated that none had been
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1 sought." (As Read)
2 I am not sure how that is
3relevant. We don't ask that question. If you are
4being tortured, obviously you are not going to
5immediately request medical treatment from the
6people who are beating you. It is a bit of a
7strange juxtaposition of those, and other
8information.
9 Another strange thing to my mind
10is paragraph 9, where the author seems very
11concerned about this issue of who gets these
12reports. Frankly, it shouldn't really be a concern
13of the monitor limiting distribution. There is
14reference to a number of hard copies and
15establishing a registry.
16 The other thing that is a little
17weird is who has been chosen to conduct this
18monitoring visit. It is the same person who has
19been handling the file for the last year, who is
20very heavily implicated in the file and has been
21receiving all kinds of reports on detainees over
22the previous year, and without any visible change
23in policy. He is the person who is picked to
24conduct this monitoring visit.
25 The final comment I would make is
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1that as far as I can tell from the paper trail for
2this visit, and the one we conducted in Kabul, they
3are the only visits conducted to monitor the pool
4of detainees before May 3rd.
5 So when I look at all of that in
6conjunction with the choice of AIHRC as an
7investigative body, which we knew at that time had
8not the capacity to conduct an investigation, then
9the conclusion I come to, this wasn't really a
10serious effort in monitoring.
11 But this is an editorial comment,
12I wish to emphasize.
13 Q. Okay, thank you.
14 In one of the opening statements,
15Mr. Champ made the submission the military police
16were really sort of the face of law, at least
17amongst the Canadian presence in Afghanistan. They
18are peace officers.
19 Is there some reason why they
20weren't tasked to conduct investigations into these
21allegations of abuse? If the AIHRC seems to be
22kind of questionable or have concerns about its
23capabilities, why wouldn't one turn to the military
24police?
25 A. I mean, I can only offer you
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1my personal opinion, if you would like to hear
2my --
3 Q. Well, are you aware of any
4decision or policy to keep the military police out
5of these types of investigations?
6 A. I am not aware. I wasn't
7privy to that decision making of who would be
8chosen to conduct them, so I am not sure what
9motivated the decision. All I can do is, if you
10would like, give an opinion, but it would only be
11an opinion. I don't have any insight into it.
12 Q. Yes. I think if you don't
13have information as to policy or direction --
14 A. Yes. Yeah. No, I think
15these decisions were being, you know, as were the
16distribution lists, discussed and decided among a
17very small number of people.
18 Q. Okay.
19 A. Yes.
20 Q. You will be glad to know we
21are getting close to the end. If I could take you
22back to collection E, tab 42, this is your end of
23posting report.
24 A. Yes.
25 Q. Okay. And you begin it by
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1saying:
2 "After completing 18 months
3 in Afghanistan, I have
4 decided to record some
5 personal observations and
6 recommendations in this
7 end-of-assignment memo. I
8 have limited my comments to
9 three key issues: detainees,
10 government and management by
11 DFAIT of the Afghanistan
12 file."
13 Under the heading of "Detainees"
14after the big block of black, you say:
15 "In this context, Canada in
16 my view should stop handing
17 Afghans to NDS custody in
18 Kandahar. If we do continue
19 to transfer detainees to NDS,
20 we should do so only in
21 Kabul, where we can
22 reasonably be assured that
23 Canadian officials can
24 monitor them effectively.
25 However, a much better
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1 solution would be to transfer
2 detainees to another Afghan
3 structure together, either
4 the Ministry of Defence or
5 the Ministry of Justice."
6 That seems to be the first time we
7have seen such an explicit recommendation as to
8stopping transfers altogether.
9 Now, who did you intend should be
10made aware of these views?
11 A. If I could -- if I can answer
12your question with a little bit of context first?
13 Q. Okay.
14 A. Which I hope will provide an
15answer. This memo was never sent, for various
16reasons.
17 THE CHAIR: I'm sorry, could you
18say that again?
19 THE WITNESS: Yes, the memo was
20never sent, for various reasons I can get into, if
21you like.
22 Much of it wasn't exactly new. It
23was really a compilation. It was a compilation of
24earlier reports, earlier discussions of these views
25I had expressed at the time. By "at the time", I
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1mean in this period sort of late April, early May
2of 2007 when we used to have conference calls every
3evening from Kabul with, you know, Arif Lalani and
4David Mulroney and, you know, General Gauthier on
5what to do about our detainee mess.
6 So these were, in a sense, old
7ideas which I had had for a while. The purpose of
8the memo was to put them all in one place, to put
9them on paper and to kind of summarize, you know,
10the problem and what I saw as the solution.
11 So, yes, this is the first time it
12had been put in writing. The reason for this is
13that I had a sort of period of freedom in writing
14things, which lasted from April of 2006 until the
15end of April of 2007. After that I was constrained
16in what I could send out under the new regime.
17 So I used to say things, you know,
18orally over the phone in these conference calls.
19But it was only really with the end of the
20assignment I saw an opportunity to reiterate them
21on paper. So does that answer your question, or
22did I --
23 Q. You say you had an
24opportunity to reiterate, but you never sent the
25memo?
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2 Q. Why didn't you send it, if
3you saw this as an opportunity to reiterate?
4 A. It was for a variety of
5reasons. One was that by the time I had written
6it, I was into my new post in Washington, so there
7was sort of slight awkwardness with sending
8something from a new job to the old job. That
9wasn't the main reason.
10 The two main reasons were, one,
11primarily that I believed it would serve no
12purpose. Having pushed these ideas repeatedly
13without success, it would be pointless, purposeless
14and would not be -- you will see in the preamble
15there is sort of an attempt to present them as
16constructive advice, but I did not believe it would
17be received in that spirit, and I believed it would
18have been rejected out of hand by Mr. Mulroney,
19with whom I had very strained relations, certainly
20by that point.
21 And the third reason, I was just
22really physically tired after Afghanistan, and I --
23I wrote it, and then looked at it and decided,
24yeah, it wasn't -- wouldn't do any good and I just
25shelved it.
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1 It is written partly for
2psychological purposes, for my own benefit, to sort
3of, you know, just to write it down.
4 Q. Yes, okay.
5 Just one final question. A few
6minutes ago we looked at these emails about site
7visits in June --
8 A. Hmm-hmm.
9 Q. -- to Kandahar and Kabul. We
10know there was a visit by Mr. Gosselin in November.
11Are you aware of any other visits that took place
12between June and November?
13 A. It seems from the record
14there were others, but it does -- when I look at
15them, it seems that these were visits of monitoring
16visits of detainees who had been taken after the
17arrangement. So they were fresh intakes.
18 In other words, when they had a
19fresh intake of detainees, then they would go
20monitor those detainees, and there seems to have
21been -- I am not sure how many, but maybe a couple
22of those.
23 Q. Okay. So that relates back
24to what you were saying about the initial pool of
25detainees kind of almost fell by the wayside.
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1There wasn't a lot of attention paid to them?
2 A. Yes. My sense is that it was
3realized that as soon as we started monitoring
4those, we immediately, in both Kabul and Kandahar,
5found credible cases of torture.
6 More monitoring visits of those
7people would have produced more cases of torture,
8and so it seems to me a decision was taken only to
9monitor the newly detained people who should not
10have been tortured, because the NDS knew we would
11be monitoring them.
12 And, indeed, we were monitoring
13them at the beginning, but this is only an
14assessment, I should say.
15 Q. In your mind, it was a case
16of don't ask the question if you don't want to hear
17the answer?
18 A. Yes, yes, I believe so.
19 MR. LUNAU: No further questions,
20sir.
21 THE CHAIR: Thank you. We will
22break until five minutes to 3:00.
23--- Recess at 2:39 p.m.
24--- Upon resuming on at 2:56 p.m.
25 MR. BERLINQUETTE: Thank you.
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2 I believe we go to Ms. Pastine.
3 MS. PASTINE: Thank you.
4CROSS-EXAMINATION BY MS. PASTINE:
5 Q. Mr. Colvin, I am Grace
6Pastine. I represent the BC Civil Liberties
7Association and Amnesty International. I just have
8a few areas that I would like to ask you questions
9about.
10 First, I would like to ask you a
11couple of questions about your March 20, 2007
12meeting that you had in Ottawa that you stated was
13an interagency meeting, and Commission counsel
14asked you some questions about that meeting here
15today and it is also referenced in your affidavit
16at paragraph 54.
17 You stated to Commission counsel
18today that at that meeting you said, very bluntly,
19essentially: Our detainees go to the NDS. NDS
20tortures. If we don't want out detainees to be
21tortured, we shouldn't transfer them to NDS.
22 Is that roughly what you said?
23 A. Yes, yes.
24 Q. And you also stated that many
25of the officials in attendance at that meeting were
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1sensitized to the issue of detainees, and you noted
2a few reasons why they were sensitized.
3 You mentioned media attention to
4the subject, and then you also mentioned the
5complaint filed by BC Civil liberties Association
6and Amnesty International before the Military
7Police Complaints Commission, and also the lawsuit
8also filed by my clients.
9 Now, I take it you said at that
10point you were aware of the lawsuit and the
11complaint; is that correct?
13 Q. And what gave you the
14impression that officials at that meeting were also
15aware of the complaint and the lawsuit?
16 A. Yeah, maybe if I could -- I
17am not sure exactly what wording I used before. So
18I was speaking more in a sort of objective sense of
19the objective environment in which this meeting
20took place.
21 I don't honestly know to what
22extent other officials in the room had focussed on
23that. I mean, I would assume they would know, but
24I don't recall if it was discussed specifically.
25But I was aware and it had objectively happened,
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1and I am sure anyone working on detainee issues
2would have known about it, and it would in a sense
3have been part of the context for the meeting.
4 First of all, remember, I sort of
5just turned up at this thing, because I happened to
6be in Ottawa. I don't remember exactly, either,
7who convened it or what the purpose was of
8convening it. I just remember it was an
9interagency meeting on detainees, and it did follow
10shortly after this complaint came out.
11 So I expect that people would have
12been thinking about that and that would have -- I
13mean, in general, there was more of a sense, I
14think, of perhaps building pressure on this issue
15in early 2007 as a result partly of the factors you
16mentioned.
17 Q. Now, the complaint was filed
18in February of 2007. I think you alluded to that,
19and the lawsuit also February of 2007.
20 Do you recall when you became
21aware of those of the complaint and the lawsuit,
22roughly?
23 A. Yeah. It would have been
24either the very end of February 2007 or very
25beginning of March, so before this meeting took
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1place. So there is only really -- I think the
2meeting, if I had to guess, would have been around
3March 5th, give or take a few days, like toward --
4you know, if the first week, basically.
5 So it was quite soon after this,
6the complaint. So it was somewhere in that two
7weeks between the complaint and the meeting is when
8I would have heard about it, possibly when it came
9out. It was in the paper, I think, and I would,
10you know, scan the papers online.
11 Q. So this was widely available
12public information?
13 A. Yeah. I think, you know, I
14don't know if it was the Globe or CP, but there
15were, I think, news stories done the following day,
16in fact around -- perhaps maybe two days after, but
17I think it was covered in the media that this
18complaint had been made.
19 You know, I did follow, you know,
20in general, kind of roughly what was happening in
21Canada, including stories on detainees. I didn't
22see them all, but I saw quite a few of them.
23 Q. Now, I have just a bit of a
24technical question about the DFAIT monitoring
25reports, and Commission counsel took you through a
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1number of those and I will return to a couple of
2those.
3 But just to start out, my question
4is simply about the sequencing of those reports.
5Now, we see that those reports, many of them have
6the identifier "KANDH", and then a dash, followed
7by a number.
8 Could you confirm that the numbers
9are sequential; that is that, for example, KANDH-39
10would have been drafted or disseminated before
11KANDH-0125, for example?
12 A. Sure, sure.
13 Q. Okay.
14 A. The only time in which they
15wouldn't be sequential would be if, you know,
16someone took a number like 39, and then someone
17else took a number 40, and they're for a different
18message. Then the person doing 40 finished theirs
19quicker than the one doing 39. It could be
20possible that 40 went just before 39, but you would
21only have confusion with numbers right beside each
22other.
23 So 45 would definitely have gone
24after 40, and so on, and certainly the example you
25gave, yes, sequential. And in that case, it is
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1clear that one came quite a bit after the first.
2 Q. Now, you were involved in
3some of the DFAIT visits. For example, today you
4spoke about your dispatch from Kabul, KGBR-0291.
5 And other of your colleagues, I
6take it, did other -- some of the other monitoring
7reports; is that correct?
8 A. Yeah, in Kandahar. I think
9in Kabul that was the only one that took place.
10 Q. One of your colleagues
11conducting those site visits was John Davison; is
12that correct?
13 A. Yes.
14 Q. And could you please tell the
15Commission when he arrived in Afghanistan?
16 A. Yes, roughly. He replaced
17Gavin Buchan, and Gavin left, I think, at the end
18of the summer, August or maybe possibly September.
19 So John Davison would have arrived
20to replace him, so September, possibly. I might be
21off by a month or so. It could have been October.
22Usually that's what happens. You know, people
23leave at the end of the summer, and then their
24replacement comes in at the beginning -- sorry,
25also at the end of the summer, in around the
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1August/September period, but it could have been
2slightly later, like October. It was sometime
3around then, August to October --
4 Q. Hmm-hmm, okay.
5 A. -- I would say.
6 Q. Commission counsel asked you
7about the role of the ICRC in advance of the May
82007 agreement; that is, the role they played
9before Canada entered into that second agreement
10with Afghanistan.
11 Under that agreement, under the
12first 2005 agreement, as you stated, ICRC, the Red
13Cross, had a role in monitoring detainees after
14they were transferred, and you stated that they
15urged the importance of immediate notification when
16detainees were taken into Canadian Forces' custody;
17that is, before they were even -- they urged it was
18important to know the location and identity of
19detainees before they were even transferred to
20Afghan authorities?
21 A. Yes.
22 Q. Could you please tell the
23Commission why the ICRC thought that that was
24important, that immediate notification?
25 A. I can give you a partial
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1answer to that question. Parts of the answer I may
2not be able to give in this open forum.
3 But, in general, ICRC were
4concerned that with late notification, as I
5mentioned before, they were losing track of
6detainees, which obviously made it impossible for
7them to conduct any monitoring of those
8individuals. So they wanted speedy notification.
9That was usually the formulation they used.
10 They did want, as well, to monitor
11detainees while Canada still had them, not just
12after they were transferred. And, you know, the
13reason for that could be that it would make it
14easier to track these people, to be able to see
15them before they're given to the Afghans, and there
16cases, too, Canada did end up keeping people for a
17few weeks if they were wounded, for example, and
18were not in fit condition, in no condition to
19transfer.
20 There may be an issue of -- I
21mean, I am a little bit speculating about Red
22Cross. It could just be a general principle they
23have, you know, it is important to get them
24quickly. It makes it easier for them.
25 Then there is another reason which
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1I am afraid I am not able to discuss in this public
2forum.
3 Q. There is some information
4before this Commission that it is often more likely
5that torture occurs in the early period just after
6transfer. Might that be another reason why early
7monitoring might be important? And certainly if I
8am asking you something that veers into the area of
9confidentiality, please don't answer the question.
10 A. Well, I can just say, you
11know, leaving aside the Red Cross, in particular,
12that I think it was generally recognized by human
13rights organizations, and we were advised of this,
14that torture does generally happen in the first few
15days, yes.
16 Q. And that was also a concern
17that you and other officials at DFAIT were alive
18to, in terms of your own monitoring
19responsibilities; is that correct?
20 A. Yes. Certainly by the time
21we began monitoring, we were alert to that, to the
22urgency of monitoring.
23 Q. Now, I would like to ask you
24a few details about the June 6th, 2007 site report
25to the NDS facility in Kabul.
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1 You stated that you were one of
2the several individuals, Canadian officials, that
3were on that site visit, and that is KGBR-0291.
4 I will direct the Commission to
5that. That can be found at volume 2 of 5 of the
6white volumes, tab 49.
7 A. I think this is a more
8heavily redacted version of the two, but there is
9another one which is less redacted. It might be
10easier to refer to the less redacted one. I'm not
11sure where it is.
12 Q. Certainly. I think that
13might be in Collection E, tab 33.
14 Q. Yes, thank you. That appears
15to be an easier-to-read version. So I would like
16to direct your attention to page 4 of 6 under the
17heading "Detainee 3".
18 Just by way of introduction and
19reminder to the Commission, this is the report
20where you report on the condition of three
21detainees, detainee 1, 2 and 3; is that correct?
22 A. Yes. I guess it is more
23detainee 2, 3 and 4. One is the individual who
24doesn't wish to be interviewed and cuts off the
25interview, so we don't have much information on
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1him.
2 So, yeah. It is 2, 3 and 4 are
3the ones that we effectively were able to monitor.
4 Q. Thank you. Now, for detainee
53, you stated that this person had a mark on their
6ankle. Do you recall how -- could you give further
7details about that mark?
8 A. Is that detainee 4, maybe?
9Detainee 3 had scars on his legs. Detainee 4 had
10the mark on the back of his ankle. Detainee 2 is
11the one with the toenail problem.
12 Q. Thank you for the
13clarification. Yes, I meant detainee 4.
14 A. Sure. Yeah, it was like a
15dark -- like, a mark, bruise. It was visible, you
16know, from where we were sitting, which was about
17where you are from us. So he said, yeah, I've been
18-- he was the guy who kind of had a bit of -- not
19bravado, exactly, but he said, Yeah, they beat me
20with this wire for a couple of days, but that's
21all.
22 Then we asked him, Do you have any
23marks? And he looks and pulled up his -- there was
24a mark on his ankle, one of the areas where he said
25he had been hit.
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1 Q. And did that look like it was
2a relatively recent injury?
3 A. I'm -- I mean, it was -- I
4just don't know, to be honest. I am not a doctor
5and I didn't really get up closely to examine. All
6we could see was there was a mark in the place
7where he said there would be a mark. It was an
8unusual mark. It was like a dark bruise, but --
9whether it was a bruise or maybe a scar, you know,
10some kind of dark patch, but whether it was fresh
11or older is -- I just am not able to say, I'm
12afraid.
13 Q. And he stated to you he was
14beaten. Did he tell you how many times he was
15beaten?
16 A. Two days. This is detainee
174, yes?
18 Q. Yes.
19 A. Yeah. So if you read the
20section, if you like. You know, I went back to my
21notes before coming out here, and, you know, what
22he told us and we put in our notes is what is in
23the report.
24 "When we asked about his own
25 treatment in Kandahar, he
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1 said he was hit on his feet
2 with a cable or 'big wire'
3 and forced to stand for two
4 days, but 'that's all'. He
5 showed us a mark on the back
6 of his ankle, which he said
7 was from the cable. [Note:
8 There was a dark red mark on
9 the back of his ankle.] He
10 said it was the NDS who
11 interrogated and held him.
12 "After two days of being
13 beaten with the cable and
14 made to stand, he was put in
15 a very small room with
16 another individual. The room
17 had high ceilings. It was
18 about only about one metre
19 wide and just long enough to
20 lie down in."
21 So two days of beating and being
22forced to stand up.
23 Q. Now, you indicated initially
24that this was last redacted version and the version
25that I first directed you to was the more redacted
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1version. It appears to me that in the first
2version, the number of days he was beaten was
3redacted. The fact that he was put in a very small
4room after being beaten was redacted.
5 Generally speaking, is it your
6view that important details are missing from some
7of these reports?
8 A. Yes.
9 Q. Now, I have another question
10regarding that same report 291. Under the section
11of the report "Detainee 1" that can be found on
12page 3 of 6 -- I'm sorry, detainee 2. That's on
13page 4 of 6. I would like to direct your attention
14to about two-thirds of the way down that page, and
15it says in your report:
16 "Individual sat with his toes
17 curled under his feet. When
18 he straightened his toes, it
19 could be seen that the nails
20 of the big toe and the one
21 next to it, were a red/orange
22 on the top of the nail
23 (although the new growth
24 underneath appeared fine)."
25 Now, it is not entirely explicit
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1in this passage, but was it your impression that
2the man's toenails had been removed?
3 A. Yes, that was our assessment.
4 Q. And that was as a result of
5torture or mistreatment at the hands of Afghan
6officials?
7 A. Yes, it would presumably have
8been as a result of torture, you know, and, yeah,
9the marks were unusual. This was noticed by our
10consular officer, who had had training in torture
11identification. We also know that pulling out toe-
12and fingernails is one of the methods that is quite
13widely used by the NDS, or is -- widely used. It
14is one of the methods that is known to be used.
15 Q. You stated that the
16allegations of these individuals you interviewed on
17this visit, in response to questioning by
18Commission counsel, were highly credible accounts.
19Do you remember saying that?
20 A. Yes.
21 Q. Did anyone in the Canadian
22Forces ever ask you whether the abuse and torture
23detailed in this report, by these detainees, was
24legitimate or whether it was fabricated?
25 A. No. No, that was never --
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1no, one ever questioned us on it.
2 Q. Did anyone in the Canadian
3government at large ever question you directly,
4during your time in Afghanistan, about whether
5these reports were legitimate or fabricated?
6 A. No.
7 Q. Did you -- after this visit,
8did you find this visit disturbing?
9 A. Yes.
10 Q. Were your colleagues
11disturbed after this?
12 A. I don't know about that. The
13interpreter had been in the prison, had been kept
14there by the Taliban several years before, so he
15had been detained in that same prison, but, you
16know, Afghans are funny that way. He was sort of
17making jokes about it, so I am not quite sure what
18his personal feelings were.
19 The consular officer who took
20part, he has interviewed people before. You know,
21he is trained in interviewing people who may have
22suffered abuse. So I can't really speak to their
23reactions, to be honest.
24 If I could just make one more
25general comment, and I can't get into the details,
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1but there was some context around these
2individuals, a reason why they were in Kabul and
3not in Kandahar, which made a certain category of
4individual for which it was much more likely they
5would have suffered not only torture, but probably
6a more severe torture than other categories of
7individual.
8 So that was part of our assessment
9of the credibility of these cases. They weren't in
10Kabul by accident, shall we say.
11 Q. Is it your understanding that
12not all detainees are taken by the Canadian Forces
13to Kandahar Air Field?
14 A. Yeah. I am not sure if I am
15allowed to speak about other places of possible
16detention, but I believe there are other places,
17yes.
18 Q. Certainly I wouldn't want you
19to go any further if you felt as though you are
20prevented from doing so.
21 Now, Commission counsel directed
22you to the first site visit, which was KANDH-39,
23and then we've been speaking about the next visit
24where the four detainees are discussed, 291.
25 Then there are a number of other
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1visits that are leading up to the November 5th,
22007 visit. The November 5th, 2007 visit is when
3the actual implements of torture were found.
4 Are you familiar with that
5November 5th visit?
6 A. Yes. I had left Afghanistan
7by then, so I became familiar later when it became
8a famous episode, if you like, and then I have a
9redacted document, which is the site visit for that
10day, which I have reviewed prior to this hearing.
11 Q. In your view, did the visits
12prior to that November 5th -- the infamous November
135th visit, did the visits prior to that already --
14did they establish that torture was occurring to
15CF-transferred detainees?
16 A. I guess all I can say is that
17the visits to which I was privy while I was in
18Afghanistan still were our one of obviously of 5th,
196th June to these four individuals in Kabul, and
20the one that preceded it in Kandahar, which we
21discussed half an hour ago or so, the 4th of June
22one in Kandahar.
23 After that, I am not sure I was
24ever sent site visit reports. So I really
25wasn't -- I didn't know what was going on. I
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1didn't know who was being visited by our monitors
2and who was conducting the monitoring, what the
3results of those visits were. I was out of the
4loop, as it were. So I just didn't really know
5what was happening.
6 Sorry, to answer your question,
7based on the 5th, 6th June one and the 4th June
8one, it was -- each of which turned up individuals
9who had, you know, credible allegations of torture,
10the assessment we could make is that the
11individuals detained before the May 3rd agreement,
12some of those at least, had been tortured. That
13was the assessment I would make from those visits.
14But the pool taken after May 3rd, I had no
15information.
16 You know, if the monitoring system
17had been working properly, then those people should
18not have been tortured, so just as a general
19comment, the 5th of November incident, and maybe
20there are others before that, that represent a
21breakdown in the monitoring regime. But I don't
22know the details of what was happening or how many
23visits took place.
24 A final comment I would make,
25though, is that, you know, the information I had
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1been given from the Commission, the visit reports
2suggest there weren't. I mentioned before, when I
3looked at those -- and this has some reports
4missing -- it seems like there were very few
5monitoring visits, and they were only after the
6post May 3rd pool, although some of those seem to
7suggest there had been, you know, beatings and so
8on of some of those individuals.
9 But I can't really talk to that
10with great authority, because I wasn't party to
11these. I haven't seen the originals at the time.
12I didn't really know what was happening. So that
13is just looking back at the patterns in the
14documents that have been made available as part of
15this Commission proceedings.
16 Q. Hmm-hmm. Thank you, Mr.
17Colvin. Those are my questions.
18 A. Yes, thank you.
19 THE CHAIR: Mr. Wallace.
20 MR. WALLACE: Thank you, Mr.
21Chair.
22CROSS-EXAMINATION BY MR. WALLACE:
23 Q. Good afternoon, Mr. Colvin.
24 A. Good afternoon.
25 Q. We introduced or I introduced
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1myself to you this morning. My name is Mark
2Wallace, and I am representing the former Canadian
3Forces Provost Marshal, Retired Navy Captain
4Stephen Moore, okay?
5 One of the areas that I want to
6clarify with you is just that, that there is the
7command structure within the Canadian military. As
8I believe you say in your affidavit, it is a fairly
9confusing vehicle; correct?
10 A. Yes.
11 Q. And there has been evidence
12that we have heard before that there are a number
13of people within the Canadian Armed Services and,
14more specifically, the military police, who have
15the title "Provost Marshal", and you are aware of
16at least two of them; that is, the Task Force
17Provost Marshal and the CEFCOM Provost Marshal,
18correct?
19 A. Yes.
20 Q. At the time that you were in
21Afghanistan, were you even aware of the existence
22of my client's position; that is, the Canadian
23Forces Provost Marshal?
24 A. That's a good question. I am
25not sure. I think in my mind there was a provost
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1marshal on the ground. Having said that, I mean, I
2guess the answer is, yes, to the extent that I knew
3that there was a colonel-level person who was at
4the top of the military police.
5 And one of the predecessors of
6Colonel Moore was a colleague of mine, and we lived
7and worked in close proximity. He was head of the
8Strategic Advisory Team in Kabul, which was right
9beside the embassy, and he had had that job before,
10I guess, and he had retired and joined this SAT.
11 So I knew that the peak of the
12military police sat at colonel, and whether I knew
13his title was Provost Marshal or something else, I
14am not sure about that.
15 Q. Okay. And I gather although
16you may have been aware of the existence of the
17office, you would not be aware of the intricacies
18of the command structure of the Canadian military
19police; correct?
20 A. Correct.
21 Q. We have heard evidence that
22the Canadian Forces Provost Marshal, my client, had
23no command authority over the military police in
24theatre, i.e., in Afghanistan
25 Were you aware of that fact?
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1 A. No.
2 Q. You do not know my client;
3that's a fair statement?
5 Q. As far as you know, you have
6never met?
7 A. No.
8 Q. Okay. Now, as I was
9following your evidence this morning, your
10correspondence that you originated out of either
11Kandahar or Kabul between May of 2006 and April of
122007, in this time frame you had created this
13expanded distribution list; correct?
14 A. Not exactly. I was using
15pretty much standard distribution lists, and the
16standard distribution list from Kabul and from
17Kandahar was quite big, because so many parts of
18the government were interested in Afghanistan or
19had a reason to receive our reports.
20 So typically what you do, you
21would sort of --
22 THE CHAIR: Mr. Colvin, if you
23could move a little closer? I can't hear you.
24 THE WITNESS: My apologies.
25 THE CHAIR: You drifted away on
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1us.
2 THE WITNESS: Sorry, Mr. Chair.
3In both Kabul and Kandahar, typically we would
4reuse distribution lists. So I would have
5inherited my predecessor's distribution list, and
6then some people appeared, new divisions were
7added. You know, the headquarters structure kept
8evolving, and so some people would drop off, new
9people would come on.
10 So the distribution lists changed,
11and they would change also depending on the
12subject. But there was sort of a consistency, in
13terms of the number of people.
14 However, as the number of
15individuals working on Afghanistan in Ottawa grew
16and grew, and it grew quite dramatically, the
17distribution lists would have got longer to reflect
18that growth.
19 But I didn't radically change the
20number of people on the distribution list compared
21to how it had been before I arrived.
22 BY MR. WALLACE:
23 Q. I guess maybe I was using the
24wrong term. The CC list, perhaps, is that fair?
25 A. No, that is the distribution
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1list.
2 Q. Okay.
3 A. Yeah.
4 Q. In any event, following
5instructions to yourself in late April of 2007,
6that distribution list shrunk considerably?
7 A. Yes, especially on detainees,
8not so much for other issues. On other issues, I
9think we continued using a more normal distribution
10list, but detainees, yes, was an example where we
11were instructed to use a very limited distribution
12list, yes.
13 Q. You have explained that
14earlier today. Getting back to the pre-April time
15frame, you will agree with me that my client --
16that is, the Canadian Forces Provost Marshal -- was
17not included on your distribution list that was in
18existence from May 2006 to April 2007?
19 A. That's correct, yeah. There
20was no C4 address for the Provost Marshal.
21 Q. And which, at least as I
22understand it, would mean he wouldn't even have the
23capability to receive it?
24 A. Well, he would -- he wouldn't
25receive it directly. So, you know, just to -- not
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1to get too much into the tedious details, but, yes,
2the C4 system is based on terminals which are
3dedicated C4 terminals. So the distribution
4network is finite and it is bounded by the number
5of terminals and where those terminals sit.
6 Inside DND, NDHQ, whatever, there
7were roughly 15 addresses in the email list from
8which you could pick to send your messages to, but
9no one beyond that 15.
10 So there was sometimes
11instructions given in the text of the message to
12pass it to certain individuals, and sometimes it
13was left to the discretion of the recipients at
14NDHQ to understand who should receive the message.
15 But the specifics of the details
16of how messages within NDHQ were distributed, I
17can't speak to that. I know a little bit about
18what was happening in Task Force Afghanistan,
19because my colleague and friend worked there. But
20NDHQ, I don't know.
21 Q. Okay. But as far as my
22client is concerned, he was not on your
23distribution list?
24 A. Correct.
25 Q. Correct?
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1 A. Yes.
2 MR. WALLACE: Thank you. Those
3are my questions.
4 THE WITNESS: When I say NDHQ, I
5mean also CEFCOM, and National Defence structures
6in Ottawa, is what I mean by NDHQ, yes.
7 MR. WALLACE: Thank you.
8 THE CHAIR: Mr. Préfontaine.
9CROSS-EXAMINATION BY MR. PRÉFONTAINE:
10 Q. Alain Préfontaine, and I
11represent the subjects -- some of the subjects,
12seven subjects and most of the witnesses. So there
13is a few areas I would like to explore with you,
14Mr. Colvin.
15 As a foreign affairs officer, you
16actually have two roles to perform at the same
17time. The first one is to establish and maintain
18relations with others, journalists, representatives
19of other governments or international institutions.
20So that is the diplomatic side, establishing
21diplomatic relations; correct?
22 A. Sort of. So the journalist
23thing doesn't really fit with that.
24 Q. It is in your affidavit,
25which is why I mentioned it.
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1 A. If you want to refer to that,
2I am happy to.
3 Q. But just a short version.
4 A. Okay.
5 Q. The first portion of your
6duties is to establish relations with
7representatives of other governments, other
8agencies, international agencies?
9 A. We can go to -- if you want
10to give me your two pieces, and then I will say if
11I generally agree, or I could tell you what I think
12the sort of main components are.
13 Q. Please answer the first
14portion. Are you in agreement that it is part of
15your duties as a foreign affairs officer?
16 A. Relations with other
17governments?
18 Q. Yes.
19 A. Yes.
20 Q. Establishing and fostering?
21 A. Yes.
22 Q. And the other portion of your
23duties is to advise internally?
24 A. Yes.
25 Q. So in the first capacity you
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1seek out information, and in the second capacity
2you disseminate the information you have gathered
3to other government officials?
4 A. That's part of it.
5 Q. And part of what you do when
6you disseminate the information is to try to
7validate it, to the extent that you can; is that
8correct?
9 A. Prior to dissemination?
10 Q. Prior to dissemination, if
11that is possible.
12 A. It depends. Not always.
13There are different ways of doing it. In some
14cases, we would simply meet with someone if a
15person is interesting, important. You might just
16write down what they have to say and pass it on for
17headquarters so they know what this person thinks.
18 It doesn't mean that you are, you
19know, confirming what he has to say. And what you
20do in those cases, you might put a comment at the
21end making a general comment on who this person is,
22and, you know, if he has particular biases or what
23his agenda is, that kind of thing.
24 Other times, we would write
25reports which were more of a synthesis, where you
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1would be more analytical, draw on a number of
2sources, and there you could even in those contexts
3quote certain individuals.
4 But there might be more processing
5of, you know, removing things you think are not
6valid and including information you think would be
7useful.
8 Q. But in both cases you would
9-- your reporting would involve some level of
10assessment and judgment?
11 A. Not in the first case. Not
12necessarily.
13 Q. You just said that even if
14you reported something that you didn't believe to
15be true, you would make a comment to that effect.
16 A. Well, you could. It is not
17necessary. You might want to add a comment.
18 Q. And the reason why you would
19make a comment is that you would want the reader to
20understand what your assessment is?
21 A. Or to understand who the
22individual is who is giving the information.
23 Q. And --
24 A. I can give you a concrete
25example, if you would like.
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1 Q. No, no.
2 A. Or we can just leave it.
3 Q. And the reason why you obtain
4and disseminate information is to allow others in
5the Government of Canada machinery to make
6decisions; correct?
7 A. That's certainly part of it,
8a core part of it.
9 Q. And there are, broadly
10speaking, when we speak of detainees, two types of
11decisions. The first one is setting the policy,
12and your information would feed that process, would
13it not?
14 A. Okay. Sorry, two types of --
15 Q. Yes.
16 A. -- decisions?
17 Q. The first part is setting the
18policy on the transfer of detainees, the Government
19of Canada policy?
20 A. Can you give me the second
21part so I understand?
22 Q. No. I just want you to
23confirm whether you agree with this or not.
24 A. I am not sure. I don't quite
25understand, actually.
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1 Q. Well --
2 A. If you could rephrase it,
3please.
4 Q. Let's come back, then. The
5interest that Canada has in the treatment of
6detainee flows from the fact that Canada is a party
7to an international convention. The third
8convention, Third Geneva Convention of 1949;
9correct?
10 A. That is one of our interests,
11but it is not the only interest.
12 Q. That is one of them?
13 A. Yes.
14 Q. And as a state, we have
15undertaken state obligations?
16 A. Yes. I would say we have an
17interest in upholding international law --
18 Q. And therefore --
19 A. -- if that's the message.
20 Q. And, therefore, in deciding
21how it is going to go about upholding that
22obligation, the Government of Canada has to set
23policy; correct?
24 A. Well, I mean, the government
25needs policies for a number of reasons, including
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1presumably to ensure international law is upheld.
2 Q. Yes. And to set policy, it
3needs to have information?
5 Q. And one of the sources of
6information would be its foreign affairs officers?
8 Q. And you would be one of
9those?
11 Q. You would not be the only
12one, but you would be one of those?
13 A. Yes.
14 Q. And the second process for
15which the information was required is not only to
16set the policy, but to implement it, actually
17implement it?
18 A. Sorry, the second process for
19which what is required?
20 Q. Your information was required
21is to inform those who had to implement the policy.
22 A. Are you talking about any
23policy or a specific policy?
24 Q. In terms of -- we're
25restraining ourselves to the handling of detainees,
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1Mr. Colvin.
2 So in terms of handling of
3detainees, there are those who have to implement
4the policy the Government of Canada has adopted;
5correct?
6 A. Yes.
7 Q. And in your understanding, in
8Afghanistan that individual was the commander of
9the Joint Task Force-Afghanistan?
10 A. Which policy are you talking
11about?
12 Q. The transfer of detainee
13policy?
14 A. Under the December 2005
15arrangement or the May 3rd supplementary
16arrangement, because those policies were very
17different?
18 Q. No. I am addressing the
19theatre standing order, TSO 321A. Are you familiar
20with that?
21 A. I have glanced over it.
22That's an internal Canadian Forces document.
23 Q. And are you --
24 A. I don't know if you would
25call that a policy. I don't think that is a
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1policy. I think it is a theatre standing order.
2 Q. Yes. And in your
3understanding of what the theatre standing order
4is, that's an order from the commander to his
5troops saying, This is how you are going to handle
6this particular duty; correct?
7 A. I am --
8 Q. You are not aware?
9 A. I know this thing exists, but
10how it fits into the CF, you know, doctrine,
11whatever, I don't know, to be honest.
12 Q. And are you aware of the fact
13that under that policy, the only person who can
14decide whether to release/transfer a detainee is
15the commander of the Joint Task Force-Afghanistan?
16 A. Well, I am not sure a theatre
17standing order is a policy. I think it is an
18order.
19 Q. You want me to take -- do you
20agree with me that the person who decides whether
21to transfer --
22 A. Do you have a copy of the
23theatre standing order?
24 Q. Yes. If you go to the main
25documents for witnesses, the white books?
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1 A. Uh-huh. Which one?
2 Q. Volume 1. And I am just -- I
3just want to take you to the more useful one,
4because there were a number of those policies
5adopted.
6 If you could turn up the document
7at tab 14, and you see that, Mr. Colvin?
8 A. Yeah. Just to say I have
9never seen this before.
10 Q. I understand that.
11 A. It's not what I thought it
12was.
13 Q. And would you be prepared to
14accept my representation to you that according to
15this TSO and the later versions, the only person
16who has the authority to authorize the transfer or
17release of a detainee is the commander of JTF-
18Afghanistan?
19 A. Right. This would be under
20the December 2005 arrangement under which detainees
21was handled internally by Canadian Forces, the
22whole-of-government effort; is that correct?
23 Q. It is the standing order that
24was in force when the December 2005 agreement was
25in force; correct?
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1 A. Okay. Sorry, what was your
2question, whether I accept that --
3 Q. That the only person who is
4authorized under that policy to transfer a
5detainee, or release him, is the commander of the
6Joint Task Force?
7 A. Where in the document is
8that?
9 Q. I will find it for you. Yes,
10if you turn to page 8 of 11, paragraph 32?
11 A. Uh-huh.
12 Q. Paragraph 32 starts,
13"Commander TFA", and that is the commander Task
14Force-Afghanistan, we agree?
15 A. Hmm-hmm, yeah.
16 Q. "... is the sole authority
17 and power to make the
18 determination whether a
19 temporarily detained person
20 shall be retained in custody,
21 transferred to ANSF or
22 released." (As Read)
23 A. Hmm-hmm.
24 Q. So do you agree with me that
25according to the theatre standing order, the only
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1person with the power to transfer a detainee would
2have been the commander?
3 A. I would.
4 Q. And would you agree with me
5that under the Convention -- another of Canada's
6international obligations called the convention
7under torture, the commander had certain
8obligations in the exercise of that decision-making
9power?
10 A. Well, I should, you know,
11emphasize I am not a lawyer, so my understanding of
12international law is quite sketchy.
13 Q. That's what I am looking for.
14Under your understanding of international law, the
15commander had certain personal obligations before
16making a decision?
17 A. I am not really qualified to
18speak on the legal aspects, I am afraid, Mr.
19Préfontaine.
20 If I could just go back to your
21earlier question, I notice under point 1 that it
22says a theatre standing order is not policy, but is
23to promulgate policy, and it is promulgating not
24Government of Canada policy, but Task Force
25Afghanistan policy, just on that earlier point.
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1 Q. Mr. Lunau, I don't have the
2exact reference to -- I understand yesterday the
3decision of the Federal Court Amnesty International
4Canada v. Canadian Forces was made an exhibit.
5 If you could tell me what is the
6number of exhibit so I could direct Mr. Colvin to
7it?
8 MR. LUNAU: Just bear with me.
9 THE CHAIR: I think it was 55 or
1056.
11 MR. LUNAU: I don't have it on the
12list.
13 MR. PRÉFONTAINE: Is it on the
14witness's table? Madame Registrar, is the decision
15of the Federal Court of February 7th, 2008 on the
16witness's table? It was put yesterday to a number
17of witnesses and in the previous days. I would
18like to similarly use it.
19 MR. LUNAU: Exhibit P-9.
20 MR. PRÉFONTAINE: Exhibit P-9?
21 THE CHAIR: Is that volume 5?
22 MR. PRÉFONTAINE: Yes, it is, Mr.
23Stannard, and I understand it would be tab --
24 THE CHAIR: Forty-two.
25 MR. PRÉFONTAINE: Forty-two.
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1 THE CHAIR: I have it.
2 BY MR. PRÉFONTAINE:
3 Q. Do you have before you, Mr.
4Colvin, the February 7th, 2008 decision from Madame
5Mactavish?
6 A. Yes, I do.
7 Q. If you could turn up
8paragraph 14? Well, actually, we will start with
913. In 13 we see -- are you there, members of the
10Panel?
11 THE CHAIR: Yes.
13 Q. In paragraph 13, Justice
14Mactavish wrote:
15 "In accordance with Task
16 Force Afghanistan's Theatre
17 Standing Order 321A, the
18 decision as to whether
19 individual detainees should
20 be retained in Canadian
21 custody, released, or
22 transferred to the custody of
23 another country, is within
24 the sole discretion of the
25 Commander of Joint Task Force
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1 Afghanistan, a position
2 currently occupied by General
3 Laroche."
4 Do you see that?
5 A. I do.
6 Q. In paragraph 14:
7 "Before transferring a
8 detainee into Afghan custody,
9 the Commander must be
10 satisfied that there are no
11 substantial grounds for
12 believing that there exists a
13 real risk that the detainee
14 would be in danger of being
15 subjected to torture or other
16 forms of mistreatment at the
17 hands of Afghan authorities."
18 Do you see that?
19 A. I do.
20 Q. And do you accept that that
21would be the test which the commander would have to
22apply each and every time he had to consider
23whether to transfer, or not, an Afghan detainee in
24Canadian Forces custody?
25 A. It is hard for me to comment
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1on internal Canadian Forces procedures.
2 Q. That's not what I am asking
3you about, Mr. Colvin. That is the legal standard
4applicable to the commander. Are we in agreement;
5yes or no?
6 A. Which one?
7 Q. Paragraph 14.
8 A. I am afraid I am not a
9lawyer, Mr. Prefontaine, so I am not qualified to
10speak on legal standards.
11 Q. So working on this as a
12hypothesis, then, because you do not wish to accept
13it, if this was true that this was the standard
14applicable to the commander's decision, would you
15not agree that the commander would be looking for
16information from different sources in order to
17assist and formulate his assessment of whether
18there is, or not, a serious risk of torture?
19 A. Yes.
20 Q. And one of those sources
21would be sources within your department, the
22Department of Foreign Affairs and International
23Trade; correct?
24 A. Correct.
25 Q. And it would come from
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1persons like you?
2 A. Yes.
3 Q. And he would be looking for
4not only a reporting of facts, but also an
5assessment as to what those facts mean; correct?
6 A. Correct.
7 Q. And he would be looking for
8signs that for those who had -- whose job it is to
9look at the information, there is a red flag going
10up?
11 A. Can you say that question
12again, please?
13 Q. For those whose job it is to
14review the information and assess it, a red flag
15goes up. That's what he is looking for. If there
16are no red flags for DFAIT officers who review the
17information, then there should not be one for the
18commander?
19 A. I think here you are getting
20into the realm of the -- well, here it is important
21to understand if we're in the pre May 3rd, 2007
22period or post May 3rd, 2007.
23 Q. In actual fact it makes no
24difference, Mr. Colvin, because the legal tests
25remain the same throughout the period.
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1 So my question to you is: Is it
2not fair for the commander to be expecting that the
3reports presented to him will contain some
4assessment which will help him formulate his own
5decision?
6 A. Right. I mean -- I mean,
7obviously, as I said, I can't comment on the legal
8aspect. I am talking about this as a policy
9question. That's what I am qualified to talk
10about, and --
11 Q. Yes. But the Commission here
12is investigating whether certain MPs should have
13investigated a potentially illegal act which would
14have been committed by the commander, and I am
15looking at the decision-making process of the
16commander and how your information fed into that
17process.
18 A. Yes.
19 Q. So we are not looking at
20policy here.
21 A. But this is why it is
22important whether it is pre May 3 or post May 3rd
23of 2007, because the process post May 3rd was
24completely different to the process pre May 3rd.
25That process post May 3rd was guided by the SOPs,
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1which were whole-of-government SOPs, and they speak
2to this precise question; whereas before May 3rd
3there were no SOPs and there was a completely
4different regime in place.
5 That's why I am asking for
6clarification.
7 Q. As a foreign affairs officer
8who has access to information and makes
9assessments, that hasn't changed from 2006 to 2008,
10has it? You still review information, still make
11recommendation and assessments?
12 A. Well, I mean, yes and no.
13For example, pre May 3rd, 2007 I never did any
14detainee monitoring. Post May 3rd I did. So a new
15function was added to my portfolio.
16 So in that sense -- and that was a
17very different type of reporting from what I had
18ever done before or since. So I am not sure I
19would fit it into some kind of global, you know,
20framework of what we do --
21 Q. Yes, but --
22 A. -- as a job.
23 Q. Wouldn't you agree, Mr.
24Colvin, that the first duty of somebody who advises
25is to be able to speak truth to power?
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1 A. That's important, yes.
2 Q. So that even before the May
32007 SOP, had you seen something that would have
4caused you tremendously, you would have reported
5it, would you not?
6 A. What kind of something?
7 Q. If you think that there was a
8serious risk of torture, you would have reported
9that, at least within DFAIT?
10 A. Yes, if I had information
11that there was a serious risk of torture. You're
12talking about our detainees or Afghans, in general?
13 Q. Our detainees, because our
14legal obligations are limited to our detainees, and
15the potential liability of the commander is
16restricted to those whose transfer he orders, not
17to the rest of the population in Afghanistan.
18 A. Yes. Agreed.
19 Q. Could you look at the main
20documents for witnesses, volume 2? That is on your
21table, or should be there.
22 A. Hmm-hmm.
23 Q. Do you have it? Could you
24turn now to tab 49, Mr. Colvin, please?
25 Now, if you look at the bottom of
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1each document, which were scanned, and then
2printed, which are contained in tab 49, you will
3see in the middle a number. On the first page, do
4you see it is 278? Do you see that, Mr. Colvin?
5 A. Yes, I do.
6 Q. Can you turn up until you see
7document 285?
8 A. Hmm-hmm.
9 Q. And you see it is an email
10that is printed by or was printed by Cyril Borlé?
11 Do you see that, Mr. Colvin?
12 A. Yes, I do.
13 Q. And if you go back to the
14bottom of the page, you will see on the right-hand
15side "1 of 3" in the corner, right-hand corner on
16the bottom, "1 of 3"?
17 A. Yes.
18 Q. Turn up to 3 of 3?
19 A. Yes.
20 Q. Members of the Panel, are we
21on the same page?
22 THE CHAIR: Yes.
23 MR. BERLINQUETTE: I hope so.
24 MR. PRÉFONTAINE: I recognize this
25is confusing.
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1 THE CHAIR: You are looking for
2the paragraph "When asked"; is that where you are
3going? Is that the right page?
4 MR. PRÉFONTAINE: Actually, no.
5On that very page, yes.
7 Q. You see, Mr. Colvin, title
8number 4, "Priority Requirements and
9Recommendations"?
10 A. I do.
11 THE CHAIR: Got it.
12 MR. PRÉFONTAINE: So we are all on
13the same page?
14 THE CHAIR: Yes.
16 Q. Mr. Colvin, you see in the
17second paragraph there the allegation -- the
18previous paragraphs report allegations of abuse and
19torture, but since you were not present, I won't
20ask you about them.
21 A. Right.
22 Q. But the last paragraph says:
23 "The allegation of abuse and
24 mistreatment should be taken
25 very seriously, but should be
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1 addressed strategically."
2 This is a report of the November
35th site visit.
4 A. Right.
5 Q. And you understand that after
6that report was sent, transfers were suspended?
7 A. Yes.
8 Q. For quite a considerable
9period of time?
10 A. Yes.
11 Q. And I take you to this,
12because here obviously those who not only reported
13the facts up the page upon which they made their
14assessment, do present the reader with an
15assessment, because they do say, "should be taken
16very seriously"; correct?
18 Q. And I would like, in that
19vein, to come back to your own reports and see what
20one finds there, if we may.
21 In particular, we will look at the
22two reports that you generated after you visited
23the prisons.
24 A. Hmm-hmm.
25 Q. The first one, to be sure we
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1have the right one, would be in your book of
2emails, Collection E, Colvin's documents.
3 I am looking for your report from
4Kandahar, 029. That you will find in tab 1.
5 A. Hmm-hmm.
6 Q. Oh, sorry. Thank you.
7Starting at page 2. And I would like to discuss
8this document with you not from the point of view
9of the drafter, because that is obviously who you
10were in relation to this document, but in relation
11to the reader and the message that the reader could
12reasonably be expected to take away from reading
13your report.
14 The summary says:
15 "Because of inadequate
16 information collection and
17 occasional reporting delays,
18 the [blank] ICRC office is
19 losing track of some Afghan
20 detainees. Efforts to
21 resolve these problems to
22 date have not been
23 successful. ICRC is 'very
24 much taken aback' by the lack
25 of..."
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1 THE CHAIR: Excuse me. I think
2you lost us.
3 MR. PRÉFONTAINE: I apologize.
4 THE CHAIR: I am in tab 1.
5 MR. PRÉFONTAINE: Yes, third page.
6 THE CHAIR: At the heading
7"Summary".
8 MR. PRÉFONTAINE: Under the
9heading "Summary", and I was simply reading the
10third paragraph under the heading "Summary".
12 Q. Efforts to resolve these
13 problems to date have not
14 been successful. ICRC is
15 'very much taken aback' by
16 the lack of cooperation from
17 Canadian military in theatre.
18 A more detailed reporting
19 form, and a helpful point of
20 contact at KAF, would address
21 principal ICRC concerns."
22 That is what you are telling the
23reader. The problem here is one of notification;
24correct?
25 A. Yes.
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1 Q. And so if the commander of
2Joint Task Force-Afghanistan was reading your
3report and he read the summary, the message that he
4would derive from it is that there is a process
5issue to be worked out; correct?
6 A. Yes, you could put it that
7way.
8 Q. And nowhere in that report do
9you say that detainees are at risk of torture and
10that you consider that to be a serious risk?
11 A. Right. There is an oblique
12reference to that, but, as you say, this message is
13primarily about notification or, as you say,
14process.
15 Q. Not to belittle process, Mr.
16Colvin --
17 A. No, no. I agree it deals
18with process. That is the point of its -- on the
19specific subject with hopefully a specific
20solution.
21 Q. Let's turn up tab 43.
22 A. Hmm-hmm.
23 Q. And that's another message
24you drafted; correct?
25 A. Correct.
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1 Q. "Kandahar prison and Afghan
2detainees" is the subject line?
4 Q. And here, again, the summary
5reads:
6 "The Kandahar prison gets a
7 passing grade from the ICRC.
8 Although close to full
9 capacity it requires only
10 modest physical upgrades.
11 [blank] for the southern
12 region in Kandahar reflects
13 the poor quality and severe
14 overcrowding of the prison in
15 Uruzgan..."
16 I apologize for the pronunciation:
17 "... where the Netherlands is
18 deploying a battle group and
19 PRT as part of NATO's
20 expansion into southern
21 Afghanistan. In Kandahar
22 [blank] not the prison itself
23 but overall treatment of
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1 by Canadian forces."
2 So this is your subtle signal?
3 A. I would disagree with you
4there, Mr. Préfontaine. If we had access to the
5unredacted version, then there would be some
6crucial information, additional information, which
7obviously we don't have because of the
8redactions --
9 Q. Yes.
10 A. -- which would --
11 Q. I have had access to the
12unredacted document.
13 A. Yes.
14 Q. I don't see there anything
15that is missing or crucial or important, Mr.
16Colvin.
17 A. Oh, then I am afraid, then,
18you would be acknowledging your -- that you are new
19to this issue, because if you were someone who was
20involved in this file, involved in Afghanistan
21involved on this issue, what has been redacted is
22extremely important, and it is critical to
23understanding that there is nothing particularly
24subtle about this message.
25 I don't agree it is a subtle
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1signal.
2 Q. Okay. And the substance of
3what you in this message -- not in your head, but
4in this message -- what you impart to the reader
5and the substance of what you have to say about
6treatment of detainees is contained in paragraphs
720 to 23; correct?
8 A. Correct, and in the summary
9and conclusions.
10 Q. And in the summary where you
11repeat the introduction?
12 A. The conclusion, yes.
13 Q. The conclusion, sorry.
15 Q. Which echoes word for word?
16 A. Yes. And there is also the
17follow-up that also relates to that issue. That is
18paragraph 25.
19 Q. Yes. And the Commission will
20decide whether it was too subtle for the reader to
21pick up your meaning.
22 A. I think the Commissioner is
23only given the redacted version, so he may have
24some difficulty fully assessing the subtlety, or
25lack thereof, of these reports.
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1 Q. And I recognize it is
2difficult for the Commission to have to contend
3with -- without ability of independent verification
4what you say or, for that matter, what I say.
5 A. Yes. I am fully prepared for
6the Commission to see the unredacted version and to
7form his own opinion.
8 Q. So would I, but it is not my
9call to make, Mr. Colvin.
10 THE CHAIR: Can I just ask, did
11you say that the information contained in the
12unredacted really isn't critical, or did I misread
13that?
14 MR. PRÉFONTAINE: No, you didn't,
15Mr. Stannard.
16 THE CHAIR: Just a real silly
17question, then. Any reason why we don't have it?
18 MR. PRÉFONTAINE: Because it would
19be injurious to either national defence,
20international relations or national security.
21 THE CHAIR: Even though it is not
22critical information?
23 MR. PRÉFONTAINE: It might be the
24information has nothing to do with what Mr. Colvin
25makes it out to be.
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1 THE CHAIR: Okay.
2 MR. REES: Mr. Chair, I have a
3general concern about cross-examining the witness
4on materials that may or may not be in the
5redactions where he is not in a position, because
6of the section 38 notice, to respond to those
7questions, and that is not appropriate as a matter
8of procedural fairness.
9 MR. PRÉFONTAINE: I intend to
10cross-examine only on what is here, but I do note,
11for my friend, Mr. Owen, that his client has
12previously stated that there might be something in
13the redacted portions. So this is not a line of
14enquiry I have opened up myself.
15 So looking at paragraph 21, Mr.
16Colvin --
17 THE CHAIR: Just to answer Mr.
18Rees, the witness did mention earlier about things
19that may be in the redacted portions, but I think
20Mr. Préfontaine is going to move on with only the
21information, as he says, that is here.
22 MR. PRÉFONTAINE: Correct.
23 MR. REES: Thank you, Mr. Chair.
25 Q. In paragraph 20, Mr. Colvin?
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1 A. Hmm-hmm.
2 Q. "[Blank] on the issue of how
3 Afghan detainees are treated.
4 In the case of prisoners in
5 the Kandahar facility
6 [blank]. However [blank] did
7 offer some roundabout
8 answers."
9 So that is your own assessment;
10correct?
11 A. Which?
12 Q. Roundabout answers. He
13didn't say, I am going to offer you a roundabout
14answer?
15 A. That's right. That is my
16characterization of what is being said.
17 Q. Okay. Paragraph 21:
18 "For example, in relation to
19 a question about whether
20 training was needed for
21 guards [blank] training would
22 be better be directed to the
23 police and judiciary."
24 And then there is a question:
25 "'How police treat their
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1 detainees has a great bearing
2 on how the populations sees'
3 the authorities [blank].
4 This issue is 'increasingly
5 important, increasingly
6 complicated and should be
7 taken more and more into
8 consideration.' [blank] 'when
9 things get difficult, some
10 authorities in Afghanistan
11 get tougher and tougher.
12 This can turn the population
13 against the authorities'."
14 I assume the quotation marks are
15meant to convey to the reader that you are actually
16relaying words that were given to you?
18 Q. And is there anything that
19would be obvious to the reader in the quotations
20that Canadian-transferred detainees are at serious
21risk of torture?
22 A. Well, I think here, Mr.
23Préfontaine, we are into the section 38 problem,
24which is that obviously critical information has
25been removed by the censor, and so I am not allowed
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1to speak to what is behind the blacked out
2portions.
3 So I am not sure what good it is
4to simply read the little bits which the censor has
5decided is available to the Canadian public to see.
6 Q. Because at the end of the
7day, Mr. Colvin, this Commission is going to be
8asked to pass judgment on the actions of some on
9the basis of this material. That's why.
10 A. I can give you my assessment
11of the significance of the section, if you like.
12 Q. No. I am just looking at
13what you -- information you relayed to the reader,
14who eventually end up being the commander of JTF-A,
15who was tasked to make the decision of whether to
16transfer or not.
17 A. Okay. But your redactions,
18you must appreciate, Mr. Préfontaine, have made my
19content somewhat incoherent, because big chunks
20have been spliced out. So I'm not sure what good
21it does to read out --
22 Q. I have heard your opinion,
23Mr. Colvin. So let's move to 23, for example. You
24in the last sentence say:
25 "For example, [blank] began
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4
5
1 by describing some of the
2 detainees as being held in
3 'unsavoury' conditions, then
4 changed that to
5 'unsatisfactory'."
6 So those words I assume were used
7by your source?
8 A. Correct.
9 Q. And is it your testimony that
10the commander of JTF-A, in reading those words,
11ought to have understood that this was code for
12torture?
13 A. I am saying that the
14commander of JTF-A, receiving the unredacted
15version of this message, should have been aware
16that our detainees were being maltreated. That is
17my testimony.
18 Q. In the conclusions, is there
19anywhere that you express the opinion that the
20detainees -- the conclusion or the summary, that
21the detainees are facing a serious risk of torture?
22 A. I am not only giving that
23information, but I am attributing it to a source,
24sources, which are extremely credible. I can't
25tell what those are in this forum, because they
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1have been redacted.
2 So it is actually, I would say,
3better than my assessment. It is the assessment of
4others who have great credibility and authority.
5 Q. So are you telling this
6Commission that under the redactions somewhere in
7this document appear your words -- or your
8assessment, rather, that Canadian-transferred
9detainees faced a serious risk of torture?
10 A. Say the question again?
11 Q. Is it your testimony before
12this Commission that under the redactions appear
13the words "serious risk of torture"?
14 A. Those exact words?
15 Q. Yes.
16 A. No.
17 Q. Torture?
18 A. No.
19 Q. Risk?
20 A. I can't remember what is
21under each of these blanked-out passages, I am
22afraid, Mr. Préfontaine.
23 Q. And mistreatment?
24 A. Again, I don't remember
25exactly what the words are, so I am not sure what
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1the purpose of this questioning is.
2 My testimony would be that the
3reports conveys clearly that our detainees face
4serious risk.
5 Q. No, I hear your testimony.
6 A. Yes.
7 Q. There will others who --
8 A. If you are talking about
9exact words which are under these blacked-out
10things, I am not even allowed to say what is under
11them, so even if these words were used, I am not
12sure I could publicly admit they have been, because
13they have been redacted.
14 Q. Well, we have seen in the
15November 5th, 2007 visit report that the words
16"serious risk of torture" were not blacked out.
17They were there.
18 A. Sorry, which report is this?
19 Q. The report prepared by Mr.
20Gosselin in November 2007 that we looked at
21previously.
22 A. Where does he say "serious
23risk of torture"?
24 Q. Serious allegation.
25 A. Where does he say that?
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1 Q. I will take you again.
2 A. That final paragraph?
3 Q. Yes.
4 A. That is not exactly what it
5says.
6 Q. The allegation of abuse and
7mistreatment --
8 THE CHAIR: Which page are we on?
9 MR. PRÉFONTAINE: Sorry, we are in
10volume 2 of 5 of the main documents for witnesses
11at tab 49.
12 MR. PRÉFONTAINE: Document 285,
13members of the Panel, if you look at --
14 THE CHAIR: Three of 3?
15 MR. PRÉFONTAINE: Yes.
16 THE CHAIR: Yes.
17 THE WITNESS: What I see is he
18says:
19 "The allegations 'of abuse
20 and mistreatment should be
21 taken very seriously but
22 should be addressed
23 strategically."
24 Is that what you're referring to?
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1 Q. Yes. So the words "serious"
2appear there, "the allegations of abuse and
3mistreatment", and that is clearly a red flag,
4would you not agree?
5 A. I would disagree. This is
6a -- I would say a pat phrase which gets used in
7these monitoring reports almost as if the people
8had been sent out or had been instructed to use
9this phrase.
10 I think it is quite a meaningless
11sentence, personally.
12 Q. You say that from the vantage
13point of somebody who, after June of 2007, was, as
14you stated previously, cut from that loop?
15 A. Well, I can --
16 Q. And does not have access to
17the reports?
18 A. I can say as early as June
19the 4th, this phrase is being used in this very
20poor quality monitoring mission made to Sarpoza.
21These allegations obviously we take very seriously.
22It is what you call a talking point, and it was in
23all the talking points, as instructed, to deliver
24to the Afghan government even prior to the
25appearance of the Globe and Mail article: We take
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1these allegations very seriously.
2 It is a kind of cliché almost, Mr.
3Préfontaine, in my view.
4 Q. I think we are well served by
5taking them seriously. I think we must, wouldn't
6you agree?
7 A. Taking the allegations of
8abuse of humans seriously?
9 Q. Yes.
10 A. Yes, I agree.
11 Q. But there is two assessments
12contained in there. They have to be credible
13allegations, so "credible" is an assessment;
14correct?
15 A. Correct.
16 Q. And the risk has to be a
17serious risk, and "serious" also entails an
18assessment?
19 A. Correct.
20 Q. And those who are making the
21assessment were, in part, you; correct?
22 A. Which assessment are we
23talking about?
24 Q. As to whether there were
25credible allegations of serious risk of torture.
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1 A. I don't think I was ever
2asked to make that assessment, Mr. Préfontaine.
3 Q. In the report that you
4drafted for policy makers or decision makers, if
5you felt that there was an issue to be addressed,
6you would have made the assessment; correct?
7 A. Not in that form, no. I gave
8policy advice at one point -- actually, at two
9points, and that included an assessment of what the
10risks were. Rather, it was more -- actually, it
11wasn't even an assessment of risk. It was an
12explanation of the existing patterns of abuse.
13That's different really to assessing risk.
14 What you are talking about is, I
15think, according to your standard task force
16theatre standing orders. That's a requirement of
17the commander, I believe, in that section you
18showed me. He has to make some kind of risk
19assessment, but that wasn't what I was doing in my
20job.
21 Q. But he was relying on
22information to do that, would you not agree?
23 A. Sure.
24 Q. And part of the information
25that he was relying on might have come from you?
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1 A. I agree.
2 Q. And it might have come from
3other sources?
4 A. Correct.
5 Q. And in actual fact, you were
6not privy to all the information the theatre
7commander had?
8 A. Right. I may have had more
9than him in some areas, and he may have had more in
10others.
11 Q. He might have different
12information?
13 A. He may, yes.
14 Q. Yes. For example, he might
15have met, personally, the different players,
16whoever the director of the prison, whoever was in
17charge of the NDS in Kandahar; correct?
18 A. Yes, yes.
19 Q. And might have formed some
20personal assessment as to their reliability?
21 A. Yes.
22 Q. And that might have been one
23of the factors the commander took into account?
24 A. The credibility of his
25sources, reliability of his sources?
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1 Q. Yes.
2 A. That is one of the factors
3that would -- yeah, it would inform his judgment,
4assessment.
5 Q. The same way, when we were
6discussing the previous document, you found a
7source that you were discussing with to be highly
8credible?
9 A. Yes, that's right.
10 Q. So it is a common trait, to
11all of those who have to look at information and
12try to decide whether they can act on it, to have
13to assess its credibility?
14 A. The credibility of the
15information and source.
16 Q. And reliability?
17 A. Sure.
18 Q. And you had your sources and
19you fed reports, and the commander might have had
20different sources in addition to your reports?
21 A. Yes, agreed.
22 Q. Let's come back to one of
23your reports, tab 33 of Collection E of the Colvin
24documents.
25 We find here the report that you
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1generated after your visit to the NDS detention
2facility on the 4th and 5th of June.
3 A. The 5th and 6th of June.
4 Q. Sorry, 5th and 6th of June?
5 A. Correct, yes.
6 Q. Looking at the summary
7paragraph 3, you summarize that:
8 "Of the four detainees we
9 interviewed, three said they
10 had been whipped with cables,
11 shocked with electricity
12 and/or otherwise 'hurt' while
13 in NDS custody in Kandahar."
14 A. Correct.
15 Q. In actual fact, not all three
16of them told you that they all had been whipped
17with cables or shocked with electricity or
18otherwise hurt; correct? This was not a
19description of the mistreatment they would have
20received that was shared by each and every one,
21agreed?
23 Q. It was just an amalgamation?
25 Q. You told us earlier that you
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1eventually found out that these four persons you
2interviewed, including the three ones here, only
3one was a Canadian -- we could confirm was a
4Canadian-transferred detainee?
5 A. Yes. I would say one was
6definite and the second was probable.
7 Q. I would like to take you to
8page 4 of your report. And at page 4, you describe
9in bullets your interview of the detainee number 2
10in the top portion of the page; correct?
11 A. Hmm-hmm.
12 Q. You have to -- sorry, for the
13purpose of the transcript, you have to say yes or
14no.
15 A. Sorry. Yes.
16 Q. You report, and I am looking
17at the fourth bullet from the bottom, immediately
18after, "He has been visited by human rights
19people"?
20 A. Hmm-hmm.
21 Q. It is in quotation marks.
22What did you make of human rights people? What did
23you think it meant?
24 A. You know, I would guess ICRC.
25 Q. The next bullet:
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1 "Individual was quiet and
2 careful, and sat with his
3 hands clasped during the
4 meeting. He was forthcoming,
5 but also seemed anxious, with
6 some facial twitches."
7 Now, the report doesn't say what
8the reader ought to make of this. Is there
9anything we should read into this description?
10 A. It is colour, I would say,
11sort of, you know, the reader understands the
12circumstances, the situation of this individual,
13and it links into the final comment, which was our
14general impression that he was traumatized.
15 So it is a little bit -- you know,
16some of this is just straight -- you know, we're
17conveying what we observed, and then there is a
18little bit -- at the end, a little bit of
19assessment.
20 Q. Yes. When you say he was
21somewhat traumatized, you don't specify by what?
22 A. Well, we are just conveying
23the impression he conveyed.
24 Q. No, I realize that, but you
25don't say traumatized, because in a previous
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1paragraph -- and we will come back to that -- you
2say that he told you he had been hurt and had
3problems.
4 A. Hmm.
5 Q. And there is no ready
6connection to be made being somewhat traumatized
7and hurt and had problems in the previous
8paragraph. At least you draw none in that report.
9 A. Well, I am not sure about
10that.
11 Q. Well, let me give you an
12example. If you go up to the third bullet from the
13bottom, your description of the toes?
14 A. Hmm-hmm.
15 Q. "Individual" -- you have to
16say yes or no, Mr. --
17 A. Sorry. Yes.
18 Q. "Individual sat with his toes
19 curled under his feet. When
20 he straightened his toes, it
21 could be seen that the nails
22 of the big toe and the one
23 next to it, were a red/orange
24 on the top of the nail
25 (although the new growth
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1 underneath appeared fine)."
2 Is the purpose of putting
3something between parentheses to offer some
4assessment to the reader, because the first portion
5of the sentence seems to be as a straightforward
6description of what you have observed, and then
7what appears in parentheses seems to be an
8assessment of that?
9 A. I would describe it as an
10observation more than an assessment.
11 Q. And the conclusion that you
12drew in answer to Madame Pastine's question, that
13doesn't appear in your report, does it?
14 A. No.
15 Q. And the next bullet you say:
16 "When we asked him about his
17 treatment in Kandahar rather
18 than Kabul, he became quiet."
19 But we previously noted, it seems
20to me, two bullets up, that he was quiet and
21careful?
22 A. Hmm-hmm.
23 Q. So he became quieter?
24 A. He paused, stopped talking
25for a bit, reflected. The one above is a general
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1description of how he was throughout the course of
2the meeting. This relates to his reaction to our
3question. It is a different --
4 Q. You understand our
5predicament, Mr. Colvin. You were there; we
6weren't. All we have to go by is the report that
7you have drafted, and so it was for the commander
8of JTF-A -- the only thing he had before him were
9your reports?
10 A. Well, I wouldn't -- I hope he
11had more than just our reports.
12 Q. And I believe --
13 A. The report would be among the
14information which he would have had.
15 Q. So that reading that, that
16person has to form a judgment, which is why the
17lack of assessment is troubling.
18 A. Well, I believe there is
19enough information here to paint a fairly clear
20picture of what happened to this individual.
21 Q. Yes, but your report doesn't
22offer that conclusion, does it?
23 A. It doesn't offer that
24conclusion? Sorry, was that your question?
25 Q. Yes.
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1 A. I would say it does, in a
2sense, offer a conclusion, if you look at paragraph
33 of the summary.
4 Q. Yes. We have looked at that,
5but now we are looking at the factual foundation of
6the conclusion. Paragraph 3 is the conclusion.
7 A. Yes.
8 Q. And now we are looking at the
9details of your report, which ought to give us the
10factual foundation of your conclusion.
11 A. Okay, sure. Yes.
12 Q. So we are looking at the
13factual foundation, and all that we see is that he
14had:
15 "... red/orange on top of his
16 toenails (although the new
17 growth underneath appeared
18 fine). When we asked him
19 about his treatment in
20 Kandahar ... he became quiet.
21 He said that in Kandahar he
22 had been 'hurt' and 'had
23 problems'."
24 That is fairly elliptical, isn't
25it? It is not direct?
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1 A. I would say "hurt" is fairly
2clear. I wouldn't describe that as elliptical
3personally.
4 Q. But why is it that it doesn't
5appear right here in your assessment of the
6allegation made by detainee number 2?
7 A. Excuse me, why doesn't it
8appear --
9 Q. Why don't you share that
10assessment with the reader as you are describing
11detainee number 2?
12 A. I'm sorry, that is detainee
13number 2.
14 Q. I know, but your assessment
15of whether you believe the allegation to be true or
16not doesn't appear here.
17 A. I'm sorry, I don't understand
18your question, Mr. Préfontaine.
19 Q. Okay. Let me give you
20another way of going at it, then. If you go up
21page 4, about midway in your description of your
22interview with detainee 2, you see a description of
23what the detainee told you he was being fed?
24 A. Yes.
25 Q. And after the description of
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1what he was being served, by what food, there is a
2note in brackets:
3 "Other detainees talk of
4 being fed potatoes rather
5 than rice."
6 A. Right. I mean, yes.
7 Q. That is a comment that is an
8assessment?
9 A. No, it's not. It is a
10summary of what the other detainees said.
11 Q. Okay, but the reason why you
12put the note there is this particular detainee did
13not offer you that information. It was your
14ability to compare two versions of the same regime?
15 A. Yeah. I mean, this is a
16rather benign issue, obviously, whether they get
17potatoes rather than rice. It was just a little
18comment we tossed in.
19 Q. Yes, yes. All I see, when
20you describe the problems detainee number 2 had in
21Kandahar, is the absence of note.
22 A. Sorry, can you say that
23again, please?
24 Q. When in the last three
25paragraphs --
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1 A. Uh-huh.
2 Q. -- you describe the treatment
3of detainee number 2, there is no note; correct?
4 A. Sure, yes. You are correct.
5 Q. Moving on to detainee 3 on
6the same page, bullet number 2:
7 "Individual appeared in dirty
8 clothes, although his
9 fingernails were neatly
10 trimmed."
11 Now, is that a sign that he was
12getting a manicure?
13 A. It is, as with the other one,
14some colour. I am not sure personally what to make
15of that. We simply are giving as much information
16as we can to people who were in there.
17 I would just add, as well, some of
18these observations were made by my colleague, who
19has had training by the government in what to look
20for in torture cases, and so he is observing all
21kinds of information, including things like whether
22his clothes are clean or dirty.
23 Q. And I agree that reporting
24observations is the first portion of that report,
25but the second portion is offering an assessment.
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1 A. Or a summary of what we saw.
2 Q. Yes, but an assessment much
3like Mr. Gosselin offered in November?
4 A. I don't believe what Mr.
5Gosselin offered, frankly, is an assessment. This
6is a -- it's a comment which is sort of, from my
7point of view, a meaningless comment, and in fact a
8very ambiguous comment. What does he mean -- I am
9just -- this is what I read: The allegation should
10be taken very seriously, but should be addressed
11strategically. I personally don't know what that
12means.
13 Q. But it seems, Mr. Colvin,
14that at least he was understood by those who read
15it, because transfers were suspended. Whereas,
16when you filed your report, there doesn't seem to
17have had the -- do not seem to have produced the
18same effect?
19 A. Well, you are comparing
20apples and oranges, Mr. Préfontaine. I would
21suggest to you the reason transfers were suspended
22was because the information we provided higher up
23on that page in Mr. Gosselin's report, when he
24says:
25 "He alleged that during
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1 interrogation, individuals
2 held onto the ground while
3 the other beating him with
4 electrical wires and rubber
5 hose. Indicated spot on the
6 ground in the room we were
7 interviewing as the place he
8 was held down. He then
9 pointed to a chair and stated
10 the implements he had been
11 struck with were underneath
12 it. Under the chair we found
13 a large piece of braided
14 electrical wire, as well as a
15 rubber hose. He then showed
16 us a bruise approximately
17 four inches long on his back
18 that could possibly be the
19 result of a blow."
20 I would suggest to you, Mr.
21Préfontaine, that is the reason why transfers were
22stopped, not this meaningless line in the final
23section.
24 Q. Well, it is actually more
25than that, Mr. Colvin. It is a combination of all
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1of that, because the first portion gives you the
2credible allegation, and, the second, that there is
3a serious risk, and in the case --
4 A. That is not what it says.
5 Q. -- of your reports, in the
6case of your reports --
7 THE CHAIR: Maybe there is a
8question there.
10 Q. Yes. In the case of your
11reports that does not appear; correct?
12 A. Again, you are comparing
13apples and oranges. These reports were the June
145th and 6th. We were interviewing detainees who
15had been transferred prior to the new arrangement
16being put in place. Everyone accepted that the
17previous arrangement was completely inadequate and
18that torture took place under that arrangement.
19 Mr. Gosselin's report speaks to
20post May 3rd, 2007 transfers. Those are very
21different regimes.
22 Q. I quite agree that everyone
23accepts that the agreements had to be revisited.
24Whether it is for the reasons that you have
25offered, I will let others speak to that.
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1 Let's deal with detainee number 4
2in your description of his condition. The second
3bullet on page 5, you write:
4 "Individual appeared relaxed
5 and even sometimes smiled.
6 He willingly spoke to us. He
7 said he had no health
8 problems."
9 So is this good or bad?
10 A. The conclusion with this
11individual is probably that it was bad, to the
12extent he did not wish to talk to us, but we
13couldn't really draw any conclusions, to be honest,
14on him, because the interview was so short and he
15terminated it before we were able to ask him
16meaningful questions.
17 Q. Actually, on the face of the
18interview itself, it is not clear that he would
19have been originally captured and detained by
20Canadian Forces?
21 A. Correct.
22 Q. Because if you go down the
23page, sixth bullet:
24 "He has been asked questions
25 eleven times."
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1 Then I am skipping a few words:
2 "He said he does not know
3 whether Canadians or
4 Americans detained him."
5 Correct? That is what your report
6says?
7 A. That is another individual,
8yes. So are you talking about detainee 1, or have
9we moved on?
10 Q. No. We are at detainee 4.
11 A. Oh, sorry.
12 Q. Do you want me to start over
13again?
14 THE CHAIR: Page 5.
16 Q. Page 5, detainee 4.
17 A. Yes.
18 Q. Are you on page 5, Mr.
19Colvin?
20 A. I am, yes.
21 Q. The sixth bullet down, "He
22has been asked questions eleven times", in
23quotation marks, do you see that?
24 A. Hmm-hmm, I do.
25 Q. The next line, "He does not
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1know whether Canadians or Americans detained him",
2that is what you reported?
3 A. Yes, correct.
4 Q. If you slide down four
5bullets, it is a fairly long bullet with four
6lines. In the last line you write:
7 "He asked us, 'If I am a
8 serious Taliban, why didn't
9 the Americans keep me?'"
10 So that questioned whether he ever
11was captured or detained by Canadian Forces;
12correct?
13 A. Right. He was the one that I
14assessed was probably taken by Canadians when I got
15subsequent information on him, which we didn't have
16at the time of the visit. But here, when he says
17Americans, he is using Americans as shorthand for,
18you know, foreigners who have detained him.
19 Q. But the commander that reads
20this doesn't know that, because your text doesn't
21say it. If this is in code, you are not giving the
22reader the decoder ring that goes along with it to
23understand it.
24 A. As I mentioned before, you
25are comparing apples and oranges, in the sense that
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1what we're trying to establish here is whether
2Canadian-transferred detainees, prior to May 3rd,
3had been abused. It was essentially a forensic
4exercise, and we were hobbled in that, in
5conducting that, by, in this case, lack of
6information, which was partly corrected later.
7 It wasn't speaking to the issue of
8what would happen to detainees post May 3rd. We
9established, to my satisfaction, that the pool of
10people up to May 3rd had suffered substantial risk
11of torture, and, indeed, many had been tortured.
12 What Mr. Gosselin is writing is a
13very different document for a very different
14purpose. Whether that risk still existed and the
15way to assess that risk was by monitoring --
16 Q. We are not addressing Mr.
17Gosselin's report. I am just looking at yours
18here.
19 A. But you are suggesting that
20the commander would be using this as a basis for
21making the post May 5th assessments, correct,
22whether torture was continuing after -- rather, May
233rd.
24 Q. Actually, I am speaking to
25the obligation of the person who goes into prison
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1and on who the rest of the system relies to make an
2informed report, which will inform the readers, to
3draft reports that are useful and provide
4assessments.
5 A. Well, I think the commander
6could quite usefully draw from this that in
7Kandahar, whether he was detained by Americans or
8Canadians, this person was, as he says, beaten for
9two days.
10 Q. Yes.
11 A. From the commander's point of
12view, it is not necessarily important whether he
13was detained by Canadians or Americans. What is
14important is what happened to him in Kandahar and
15NDS custody, which is exactly where we were putting
16our detainees.
17 Q. Later on, in the same
18description, you describe a visit of ISAF, or his
19relation, I should say, of a visit ISAF paid to him
20while in Kandahar. Do you see that, Mr. Colvin?
21 A. Yes, I do.
22 Q. Then you ask:
23 "He, and others, told the
24 ISAF visitors that three
25 fellow detainees had their
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1 'fingers cut and burned with
2 a lighter'..."
3 When you were there, did you
4witness or see any cuts to his fingers or burn
5marks to his fingers?
6 A. Sorry, I think you are
7misreading. He said other detainees had their
8fingers cut and burned.
9 Q. The sentence reads "he, and
10others".
11 A. Yes.
12 Q. So isn't he included in those
13which would have been treated in that way?
14 A. Okay. "He, and others"
15refers to the people who told the ISAF visitors
16that three fellow detainees, "fellow" meaning other
17detainees, their compatriots who were in their
18cell, but not them. That is what the word "fellow"
19means. He never alleged that his own fingers had
20been burned and cut.
21 Q. Then that is the meaning --
22 A. I'm sorry, that is what the
23word "fellow" here means. Some other people, my
24fellow, my buddy, this other guy, not me. Sorry if
25my English is --
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1 Q. Thank you for that
2clarification.
3 A. My pleasure.
4 Q. Thank you, Mr. Colvin, for
5that clarification. Moving on here, as we must --
6 THE CHAIR: Mr. Préfontaine, how
7long do you think --
8 MR. PRÉFONTAINE: That is
9precisely the question that I am asking myself,
10because cross-examinations are always so dynamic.
12 Q. Mr. Colvin, do you know who
13Lieutenant-Colonel --
14 THE CHAIR: I don't think you
15helped me with an answer.
16 MR. PRÉFONTAINE: Sorry, I think I
17have two minutes.
18 THE CHAIR: Oh, that's fine. And,
19Mr. Lunau, will you be --
20 MR. LUNAU: I have no further
21questions.
23 Q. Mr. Colvin, do you know who
24Lieutenant-Colonel Garrick is?
25 A. I don't.
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1 Q. And a Major Kirschner?
2 A. The name Kirschner is
3familiar, but I don't know him exactly.
4 Q. And what is familiar about
5the name? What type of position?
6 A. I think it comes up in some
7of the reports as someone who -- as a name that is
8listed, but I am not sure if it was even him or
9maybe some other Kirschner. But I don't know who
10he is, to be honest, a short answer, yes.
11 Q. Major Hudson?
12 A. Major Hudson, his name does
13come up, I think.
14 Q. And are these names you --
15 A. Provost Marshal, maybe.
16 Q. Sorry?
17 A. I may have heard the name
18subsequently in the context of this case, so I am
19not sure.
20 Q. So who would have been Major
21Hudson?
22 A. I don't know. I have seen
23his name, but I don't know who he is.
24 Q. And it might be that while
25you were preparing for your appearance here, you
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1saw the name?
2 A. Yes, perhaps.
3 Q. But I am more interested in
4whether these names meant something to you while
5you were in Afghanistan?
6 A. Oh, no, I don't think so.
7 Q. Major Zybala?
8 A. No.
9 Q. Major Gribble?
10 A. No.
11 Q. Chief Warrant Officer Watson?
12 A. No.
13 Q. Master Warrant Officer
14Girard?
15 A. No.
16 Q. Those are the subjects of the
17complaint that this Commission is investigating.
18 A. Yes.
19 Q. Apart from Captain (Navy)
20Moore?
21 A. I have seen them only in the
22context of this hearing, I think, on the list of
23witnesses or subjects.
24 MR. PRÉFONTAINE: Thank you.
25Those are all of my questions.
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1 THE CHAIR: Mr. Lunau.
2 MR. LUNAU: No further questions,
3sir.
4 THE CHAIR: That being said, I
5believe that will complete our examination of Mr.
6Colvin, correct, by everybody?
7 Mr. Colvin, I want to thank you
8very much. I know you came down here from
9Washington, so thank you very much for your time
10being here, your testimony, and we will be
11adjourned until tomorrow at 9:00 a.m. Thank you.
12--- Whereupon the hearing adjourned at 4:40 p.m.
13 to be resumed on Wednesday, April 14, 2010
14 at 9:00 a.m.
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9 I HEREBY CERTIFY THAT I have, to the best
10 of my skill and ability, accurately recorded
11 by Computer-Aided transcription and transcribed
12 therefrom, the foregoing proceeding.
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17 Teresa Forbes, CRR, RMR,
18 Computer-Aided Transcription
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Hearing Transcript - April 13 2010

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1 Military Police Complaints Commission

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