Federal Court tosses bid to limit final report into Afghan prisoner abuse

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Murray Brewster – September 29, 2011

The Conservative government has been dealt a major setback in its attempt to limit what a military watchdog puts in his final report on the handling of Afghanistan prisoners.

A Federal Court has dismissed an application that would, among other things, strike the testimony of diplomat-whistleblower Richard Colvin and block thousands of pages of documents from being used by the Military Police Complaints Commission.

The government argued the final report, which has yet to be written, would essentially pass judgment on the professional conduct of, not only military cops named in an Amnesty International complaint, but also other decision-makers further up the chain of command.

"There is no basis to speculate, as counsel for the Applicants would have it, that the Commission is going to ignore its mandate and start making findings against people it has no authority to make findings against," wrote Justice Yves de Montigny, in a decision released Thursday.

The justice says the report will go through a vetting review process internally at the Defence Department and could also be the subject of further review if the government doesn't like what it reads.

The appeal to the Federal Court tried to force the commission not to look at specific, mostly unflattering, testimony from witnesses critical of the way prisoners were handled.

"Yet to the extent that these witnesses could provide relevant context on the collection, reporting and communication of information on potential detainee abuse, the Commission was justified in hearing from them."

The agency held public hearings into the question of whether military cops in Kandahar knew — or should have known — about the alleged abuse of suspected Taliban prisoners after they were turned over to Afghan authorities.

Justice Department lawyers argued the commission had no authority to call witnesses who were not members of the military, such as Colvin, who said he repeatedly warned both Foreign Affairs and the Defence Department about possible prison abuse.

"The Act does not limit the limit the Commission to summoning only members of the Canadian Forces or employees of DND to appear as witnesses."

The government also claimed that the watchdog, created in the aftermath of the Somalia scandal to monitor the conduct of military police, exceeded its mandate by issuing summonses for documents.

"The Commission must be given some leeway in determining the documents that are relevant for the purposes of its inquiry," de Montigny wrote.

In complying with the order to produce documents on the treatment of prisoners, the government set up a screening process to determine what records it considered relevant to the investigation — something the judge said was off-side.

"At the end of the day: it is for the Commission, not the government to determine ultimately what documents are relevant to its inquiry," said the 55-page decision.

"If it were otherwise, the Commission would be at the mercy of the body it is supposed to investigate. That was clearly not the intent of Parliament."

Original article on Winnipeg Free Press website