OTTAWA - Canadian military police officers have been cleared of wrongdoing by a commission that investigated the politically explosive allegations of prisoner torture in Afghan jails, but has concluded the cops were kept in the dark.
The issue rocked the political world starting in 2007 and threatened to topple Prime Minister Stephen Harper's minority government in late 2009, a fate the Conservatives avoided by shutting down Parliament.
The Military Police Complaints Commission, in a long-awaited report, concluded the officers had no grounds to open an investigation into the treatment of suspected Taliban prisoners after they were handed over to local authorities in Kandahar.
But the watchdog agency noted the police were kept out of the loop by the Ottawa-based overseas command that ran the war, saying the headquarters did not share critical information and warnings that might have prompted an investigation.
The complaint was laid in 2007 by two human rights groups, Amnesty International Canada and the B.C. Civil Liberties Association, both of which tried and failed through the courts to halt the transfer practice.
None of the eight military police officers named in the complaint ever received a direct report of torture inside Afghan jails, the report said.
The commission, under court order, was not allowed to point the finger of criminal liability — or possible criminal liability. It had the latitude to say whether they failed in their duty.
The watchdog did say there was a "great deal of reliable information" both public and classified that documented the risk of mistreatment once prisoners were handed over by Canadians to Afghan authorities, said the exhaustive 571-page report.
"The Commission discovered in the course of its proceedings that key information with respect to detainee abuse, and in particular the site visit reports from (Department of Foreign Affairs), tended to stay within a closed circle of individuals at (Canadian Expeditionary Forces Command)," including the general in charge at the time, his chief of staff and close advisers.
The top military police adviser at the headquarters was also kept out of the loop by not having access to reports filed by diplomats who visited Afghan prisons.
The CEFCOM provost marshal "was marginalized when it came to any discussions and information related to post-transfer issues."
And when the officer who filled that headquarters policing role asked about circumstances that led the army to halt transfers in November 2007: "He was told he did not have a 'need to know' the details of those detainee discussions."
Warnings about conditions within the Afghan prison system by diplomat Richard Colvin, made directly to the headquarters' policy adviser during an Ottawa meeting in early 2007, were not passed along.
Gabrielle Duschner did not "transmit this information to the military police, at CEFCOM or elsewhere."
Both Amnesty and the civil liberties association began sounding warnings about conditions in Afghan prisons in late 2005 when Canada decided to transfer prisoners captured during the combat mission to local authorities, rather than the U.S.
Under international law, Ottawa was obliged to insure those detainees did not face the risk of torture. The agreement, signed by the Afghan government, did not give Canadian authorities the automatic right to check on the condition of those who were transferred.
That changed in the spring of 2007 when allegations of abuse of Canadian-captured prisoners were splashed across the front page of the Globe and Mail, igniting a political fire storm that continued to burn for over two years. Diplomats began follow up visits, which continued until the end of the combat mission last year.
The general in charge of CEFCOM, retired lieutenant-general Michel Gauthier, ordered a National Investigative Service probe of the newspaper story — something which also might have led to a military police investigation.
But the commission's report said the NIS conducted only a cursory review of the allegations contained in the article and the agency was unaware that a separate headquarters' analysis of the story had identified some of the people who claimed to have been tortured.
"No attempt was made to confirm any of the allegations, or to contact the detainees or the journalist," said the report.
"Not a single external source of information was considered or reviewed ... It appears the investigators never considered whether the orders to transfer may have been illegal, and worked on the presumption that if anyone had behaved illegally, it was solely the Afghan authorities."
When the commission decided to hold public hearings into the complaint against military police, the Harper government went to court attempting to stop it and argued that agency didn't have the jurisdiction.
The Federal Court decided the probe could take place, but only within the confines of what the MPs knew — or should have known — about alleged torture.
Between 2007 and 2009, the government and the military insisted it had not been warned about possible abuse. But the argument was shredded by Colvin, the intelligence officer who testified before both the commission and a House of Commons committee saying that he had repeatedly sounded the alarm, beginning in 2006.
His sensational testimony, along with the Harper government's refusal to release documents related to the inquiry to MPs, sparked a political crisis that ended with the prime minister asking for the prorogation of Parliament.
Peter Tinsley, the former chair of the Military Police Complaints Commission, told the Huffington Post Canada he was pleased the watchdog had finally released a report but fears its more important findings won't be acted upon.
"Fault ... didn’t lie with the military police,” Tinsley said of the report’s conclusions. “(But) I don’t think it affords similar vindication to everyone else."
Tinsley was chair of the commission during the early stages of the investigation and watched as the Conservative government fought to limit its mandate. The Tories did not renew his four-year term when it expired in 2009. A 28-year Canadian Forces veteran and former military and international war crimes prosecutor, Tinsley later spoke out against the pressure independent parliamentary watchdogs face. He ran for the federal Liberals in the 2011 election but failed to win a seat.
Tinsley praised the persistence of the commission, which was only empowered to reach conclusions on the actions of the military police, for issuing its report “in the face of so many obstacles.”
With a file from The Huffington Post Canada
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