'I will do my best to shed light within the limits imposed by my professional obligations' - Macleans.ca

‘I will do my best to shed light within the limits imposed by my professional obligations’


As promised, here is the full opening statement of Richard Colvin in his testimony before the special committee on Afghanistan yesterday.

Mr. Richard Colvin (First Secretary, Embassy of Canada to the United States of America): Thank you, Mr. Chair, and thank you to the committee for convening this session.

I would like to thank the committee for its interest in this important issue.

In this public setting, I will do my best to shed light within the limits imposed by my professional obligations, such as protecting the confidentiality of sources.

Cette présentation durera environ 15 minutes, mais, après, je serai prêt à répondre à vos questions, soit en français ou en anglais.

A little bit of background: I joined the Department of Foreign Affairs and International Trade in 1994. I’ve had five overseas assignments in Sri Lanka, Russia, the Palestinian territories, Afghanistan and now in Washington, D.C. Afghanistan was therefore my second Islamic posting and third insurgency.

I spent 17 months in Afghanistan, first as a senior DFAIT representative of the provincial reconstruction team, or PRT, in Kandahar and then for over a year at the Canadian Embassy in Kabul as the head of a political section and chargé d’affaires—that is, the acting ambassador.

In these capacities, I was responsible for a large number of issues, including getting additional Afghan police and soldiers to Kandahar to relieve Canadian Forces, development issues, counter-narcotics, coordination with our NATO allies, the UN and the Afghan government and security and intelligence files. Detainees was only one of about 15 major issues that I worked on. My primary focus was on improving the effectiveness of our efforts so that we had a better chance of achieving our goals.

I volunteered to go to Afghanistan. Canada’s objectives are noble: to help bring peace, prosperity and hope to Afghans after 30 years of war and the repressions of the Taliban. I’d like to start with two general comments. First, Afghanistan was an extraordinarily difficult environment. Canada had not fought a war since the Korean War 50 years earlier and had not fought a counter-insurgency since the Boer War, 100 years ago.

Insurgency is the most complicated, demanding and subtle of wars. There are vital geopolitical and security interests at play in Afghanistan. Kandahar is the most important province in the whole country and, most importantly, lives are on the line—Canadian lives and also Afghan lives. Afghanistan is not some bureaucratic exercise. It was therefore critical that we approach this daunting challenge with seriousness, humility and a willingness to listen, to learn and to adjust.

Second, I was very proud to have served in Afghanistan alongside the courageous and professional men and women of the Canadian Forces, including Canada’s military police. The focus of our attention, in my view, should not be on those who obeyed their chain of command, which soldiers are obliged to do. Instead, any responsibility for Canada’s practices toward detainees lies, in my view, with the senior military officers, senior civilian officials and the lawyers who developed the legal framework, designed the policies and practices and then ordered that they be implemented.

What was the nature of our detainee system in Kandahar? Perhaps a good place to start is to compare our practices to those of our principle NATO allies in southern Afghanistan: the United Kingdom and the Netherlands. What we were doing differed in five crucial respects.

First, we took and transferred far more detainees. As of May 2007, Canada had transferred to the Afghan authorities six times as many detainees as the British, who were conducting military operations just as aggressive as ours and had twice as many troops in theatre, and we had transferred 20 times as many detainees as the Dutch.

Second, we did not monitor our own detainees after their transfer. Again, unlike the British and Dutch, Canada’s memorandum of understanding on detainees, signed by General Rick Hillier in December 2005, had no provision for our own officials to follow up on what happened to our detainees after they were handed to the Afghan intelligence service, the NDS, or National Directorate of Security.

Instead, our detainee system relied upon two human rights groups to monitor the wellbeing of detainees after transfer: the Afghanistan Independent Human Rights Commission, or AIHRC, and the International Committee of the Red Cross. Unfortunately, the AIHRC had very limited capacity and, in Kandahar, were not allowed into the NDS prisons. For the purposes of monitoring our detainees, they were unfortunately quite useless.

The Red Cross is a very professional and effective organization. However, they were also no good for us as monitors. Once a detainee had been transferred to Afghan custody, the Red Cross, under their rules, could only inform the Afghan authorities about abuse. Under those strict rules, they are not permitted to tell Canada.

The third important difference is that, again, unlike the Dutch and British, Canada was extremely slow to inform the Red Cross when we had transferred a detainee to the Afghans. The Canadian Forces leadership created a very peculiar six-step process. Canadian military police in Kandahar had to inform the Canadian Forces command element at Kandahar airfield, who in turn informed Canadian Expeditionary Force Command, or CEFCOM, in Ottawa.

CEFCOM would eventually inform the Canadian Embassy in Geneva, who then informed Red Cross headquarters in Geneva, which was finally able to notify the Red Cross mission in Kandahar. This process took days, weeks or, in some cases, up to two months.

The Dutch and British military, by contrast, had a one-step process. They simply notified the Red Cross office in Kandahar directly. The Dutch did so immediately upon detaining an Afghan, and the British within 24 hours.

In other words, in the critical days after a detainee was first transferred to the Afghan Intelligence Service, nobody was able to monitor them. Canada had decided that Canadians would not monitor. The AHRC could not do so because they had very weak capacity and were not allowed into NDS jails. The Red Cross, in practice, could not do so either because we did not inform them until days, weeks or months after we had handed over the detainee.

During these crucial first days, what happened to our detainees? According to a number of reliable sources, they were tortured. The most common forms of torture were beatings, whipping with power cables, and the use of electricity. Also common was sleep deprivation, use of temperature extremes, use of knives and open flames, and sexual abuse, that is, rape. Torture might be limited to the first days or it could go on for months.

According to our information, the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar, it was standard operating procedure.

A fourth difference between us and the British and Dutch was unusually poor record-keeping. This had serious consequences. When the Red Cross was finally informed that we had transferred a detainee, not only had a lot of time passed, but the information that Canadian Forces had taken was so limited that the Red Cross was often even unable to locate our detainees.

Another consequence is that we ourselves did not know about the fate of a given detainee after transfer. Was he still in detention? Had he been released? Had he been transferred to a third party? Had he died under torture or been executed? We had no idea.

Once Canada did sign a new memorandum of understanding on May 3, 2007, we tried to go back to figure out what had happened to the large number of Afghans we had already transferred. However our records were so poor that the task was physically impossible.

I’ll offer a concrete example.

In June 2006, an Afghan woman came to the PRT in Kandahar. She had three young children with her, including an infant of six or eight months who was listless and visibly sick. The woman’s name was Fatima. It was, in my view, an act of considerable courage for her to pass through checkpoints to our heavily fortified compound to talk to a foreigner. Her husband, Bismila, was a taxi driver. One day he had gone to work but had never come home. Fatima came to the PRT to ask if Canada had detained him. I tried to answer her question but Canadian records were so hopeless that I was unable to.

The final difference, which is a very important one, is that Canada, unlike the U.K. and the Netherlands, cloaked our detainee practices in extreme secrecy. The Dutch government immediately informed the Dutch Parliament as soon as a detainee had been taken. The Dutch also provided their Parliament with extremely detailed reporting on every stage of detention and transfer and on the results of monitoring after transfer. The U.K. has also announced publicly the number of their detainees.

The Canadian Forces, by contrast, refuse to reveal even the number of detainees they have taken, claiming this would violate operational security.

When the Red Cross wanted to engage on detainee issues, for three months the Canadian Forces in Kandahar wouldn’t even take their phone calls. The same thing happened to the NATO ISAF command in Kabul, who had responsibilities to report detainee numbers to Brussels, but were told, “We know what you want, but we won’t tell you”.

Frankly, the operational security argument makes no sense to me. If we go into a village and take away three Afghans, everyone in the village knows exactly who we have taken. In practice, the information was being concealed not from the Taliban, but from NATO ISAF, the Red Cross and the Canadian public.

To recap, Canada took far more detainees than the British and Dutch, and unlike our NATO allies, we conducted no monitoring. Instead of hours, we took days, weeks or months to notify the Red Cross, which meant nobody else could monitor. We kept hopeless records and apparently to prevent any scrutiny, the Canadian Forces leadership concealed all this behind walls of secrecy.

As I learned more about our detainee practices, I came to the conclusion that they were contrary to Canada’s values, contrary to Canada’s interests, contrary to Canada’s official policies, and also contrary to international law, that is, they were un-Canadian, counterproductive and probably illegal.

Starting in May 2006, as we in the field became aware of the scope and severity of these problems, we began informing Ottawa about them. We used the means available to us, that is, written reports and verbal briefings, to alert senior officials in both DFAIT and the Canadian Forces about the grave deficiencies of our detainee practices and their grave consequences.

It was our function, responsibility and obligation to provide such information and analysis. That was our job.

The concerns we expressed, I believe, reflect mainstream views and values in both DFAIT and the Canadian Forces. A number of my closest military colleagues in Kandahar were extremely troubled by what we were doing with detainees.

We on the ground in Kandahar, civilians and military, informed DFAIT and the senior military leadership about the notification problems with the Red Cross, the delays and inadequate information. We informed them about our very serious concerns about what was happening to detainees after transfer. We informed them about the lack of information being given to NATO.

In our annual human rights report at the end of 2006, we informed them about systemic problems of torture in Afghan jails. By March 2007, we were orally warning Ottawa that the NDS tortures people and if we don’t want our detainees tortured, we shouldn’t hand them to the NDS.

And on April 24th and 25th, 2007, as the detainee issue was becoming a political crisis in Ottawa, the embassy sent two reports that offered Ottawa a solution. To protect our detainees from being tortured, we should adopt the British and Dutch approach, that is, take responsibility for our own detainees, monitor them ourselves and establish a robust, aggressive and well-resourced monitoring mechanism that would guard our detainees from further risk of abuse.

Senior officials in DFAIT and the Canadian Forces did not welcome our reports or advice. At first, we were mostly ignored. However, by April 2007, we were receiving written messages from the senior Canadian government coordinator for Afghanistan to the effect that we should be quiet and do what we were told and there was a phone message from the DFAIT assistant deputy minister suggesting that in future we should not put things on paper but, instead, use the telephone.

Starting in May 2007, a new ambassador arrived. Immediately thereafter the paper trail on detainees was reduced. Written reporting from the field was restricted to a very limited circle of officials, which shrank further over time, and reports on detainees began sometimes to be censored with crucial information removed.

By summer 2007, internal censorship had spread to new areas. For example, we could no longer write that the security situation in Afghanistan was deteriorating even though everyone knew that it was. In terms of established DFAIT practice, all of these steps were extremely irregular.

By the end of April 2007, senior officials in Ottawa did accept the embassy’s recommendations from April 24th and 25th. On May 3rd, we signed a new MOU with the Afghan government that, for the first time, gave us the right to monitor. DFAIT accepted responsibility for that monitoring.

However, the other part of our advice was not implemented. That is, to monitor effectively, we needed new resources, at a minimum one full-time officer to conduct the monitoring, as well as to manage the relationships with NDS, NATO allies, human rights partners and other partners.

Instead, for the first five months of our new detainee regime, monitoring was done by a succession of officers, some of whom were in the field on short visits of only a couple of weeks. There was too little capacity and not enough continuity. The result was that, despite the new MOU, our detainees continued to be tortured after they were transferred. Perhaps I should say some of our detainees continued to be tortured after they were transferred.

It was only in October 2007 that DFAIT’s senior leadership finally sent a dedicated monitor to Kandahar. Within weeks, he found incontrovertible evidence of continued torture. An Afghan in NDS’ custody told him that he had been tortured, showed him the marks on his body, was also able to point to the instrument of torture which had been left under a chair in the corner of the room by his interrogator.

Up to that point, we had done what we could to monitor in Kandahar and also once in Kabul the existing pool of detainees, at least those we could locate. Canadian officials interviewed numerous Afghans who gave very credible allegations of torture and in several cases still had marks on their body, but they’d all been tortured before May 3rd when the new MOU came into force.

The late October 2007 case was, I believe, the first instance after May 3rd that we became aware of. However, because our monitoring regime was ineffectual, there may well have been other cases.

October 2007 was 17 months after the PRT first informed senior officials in the Canadian Forces and DFAIT about the very grave dangers facing our detainees after transfer. In other words, for a year and a half after they knew about the very high risk of torture, they continued to order military police in the field to hand our detainees to the NDS. As far as I know Canada, even today, continues to transfer detainees to the NDS in Kandahar.

In October 2007, I left Afghanistan and started a new job in Washington, D.C. In April 2009, I was subpoenaed by the Military Police Complaints Commission. In response, DFAIT, in collaboration with the Department of Justice, took three significant steps.

First, they’ve made it very difficult for me to access legal counsel. This ongoing problem has still not been resolved.

Second, DFAIT and the Department of Justice, again working together, blocked my access to my own reports from Afghanistan. I was told, “We will decide which of your reports you require.” I was given none of them.

Third, government lawyers have threatened me under section 38 of the Canada Evidence Act. This had the effect of placing me in an impossible position. If I refuse to co-operate with the MPCC subpoena, I could be jailed for up to six months, but I did co-operate under section 38 I could be jailed for up to five years.

When this warning was sent, DFAIT and the Department of Justice, again acting together, were still withholding approval for legal counsel, depriving me of legal advice and protections.

I have a final section. I hope I’m not taking too long.

The final section, asking kind of a rhetorical question, even if Afghan detainees were being tortured, why should Canadians care?

I think there are five compelling reasons. First, our detainees were not what intelligence services would call “high-value targets”, such as IED bomb-makers, Al Qaeda terrorists or Taliban commanders. High-value targets would be detained under a completely different mechanism that involved special forces in targeted intelligence-driven operations.

The Afghans I’m discussing today were picked up by conventional forces during routine military operations, and on the basis typically not of intelligence but suspicion or unproven denunciation.

According to a very authoritative source, many of the Afghans we detained had no connection to the insurgency whatsoever. From an intelligence point of view, they had little or no value. Frankly, the NDS did not want them.

Some of these Afghans may have been foot soldiers or day fighters, but many were just local people, farmers, truck drivers, tailors, peasants, random human beings in the wrong place at the wrong time, young men in their fields and villages, who were completely innocent but were nevertheless rounded up.

In other words, we retained and handed over for severe torture a lot of innocent people.

The second reason Canadians should care is that seizing people and rendering them for torture is a very serious violation of international and Canadian law. Complicity in torture is a war crime. It is illegal and prosecutable.

Third, Canada has always been a powerful advocate of international law and human rights. That is a keystone of who we are as Canadians and what we have always stood for as a people and nation. If we disregard our core principles and values, we also lose our moral authority abroad. If we are complicit in the torture of Afghans in Kandahar, how can we credibly promote human rights in Tehran or Beijing?

Fourth, our actions were counter to our own stated policies. In April 2007, Prime Minister Stephen Harper said publicly that Canadian military officials do not send individuals off to be tortured. That was indeed our policy. But behind the military’s wall of secrecy, that unfortunately is exactly what we were doing.

Finally, even if all the Afghans we detained had been Taliban, it would still have been wrong to have them tortured. The Canadian military is a proud and professional organization, thoroughly trained in the rules of war and the correct treatment of prisoners.

If I may, I would like to quote the authoritative military manual on counter insurgency. It says that:

The abuse of detained persons is immoral, illegal and unprofessional. Torture and cruel, inhumane and degrading treatment is never a morally permissible option, even if lives depend on gaining information. The methods used by the military must reflect the nation’s commitment to human dignity and international humanitarian law.

When we look at our U.S. allies who work with us Kandahar, their top commander, Gen. David Petraeus listed 10 big ideas of counter insurgency. One is live your values. He said that whenever we place expediency above our values, we end up regretting it. In a counter insurgency, when you lose moral legitimacy, you lose the war.

Canada’s counter insurgency doctrine makes the same point. Persons not taking part in hostilities, including fighters who have been detained, must be treated humanely. Once local citizens have lost confidence in foreign military forces, their sympathies and supports will be transferred to the insurgents.

Counter insurgency is an argument to win the support of the locals. Every action, reaction or failure to act becomes part of the debate. In Kandahar, Canada needs to convince local people that we are better than the Taliban, that our values are superior, we will look after their interests and protect them.

In my judgment, some of our actions in Kandahar, including complicity in torture, turned some local people against us. Instead of winning hearts and minds, we caused Kandaharis to fear the foreigners. Canada’s detainee practices, in my view, alienated us from the population and strengthened the insurgency.

Thank you for your attention. Merci.