The Hill: Attempts to obstruct Colvin fail as story comes out

Bad things happen to politicians who don’t give their senior public servants the lawyer they want.

When career diplomat Richard Colvin was called to testify before the Military Police Complaints Commission about torture in Afghanistan, he wanted his own independent lawyer to represent him, not somebody from the Justice Department.

The government said no. So when Colvin started talking about testifying on his own, Prime Minister Stephen Harper said he could be in violation of the Official Secrets Act, which upon conviction carries a prison term of up to five years.

With no star witness, commissioner Peter Tinsley shut down the inquiry. Harper’s bully tactics had succeeded. Well, not quite.

Don’t fool around with the men in striped pants at Foreign Affairs. They’ve been at the game a lot longer than the politicians have.

So Colvin went over to a parliamentary committee with the story he would have told to the commission. With his career potentially in ruins, he had nothing to lose. There’s nothing worse than that in politics.

Colvin’s testimony was shocking, damaging, and almost incredible as he brought allegations of Canadian politicians and generals closing their eyes to torture in Afghanistan. It made news around the world.
The Harper government then fell back upon an inept strategy.

Defence Minister Peter MacKay was sent out to brand Colvin’s allegations of torture as false. Colvin was “a dupe” of the Taliban, he said.

So why had the Harper government appointed Colvin our intelligence chief at the Canadian Embassy in Washington? Would Americans relish sharing intelligence with a Taliban “dupe?”

Three generals were trotted out last Wednesday to refute Colvin before a Commons committee: retired general Rick Hillier, former chief of the defence staff; retired general Michel Gauthier, who ran the Afghanistan show from Ottawa; and Maj.-Gen. David Fraser, who was on the ground over there.

The generals were extremely insulted by what Colvin had said about their allegedly sloppy transfer of prisoners to Afghan jail guards and the apparent lack of followup as required by international law. 

That explains the virulence with which they shot back insults at Colvin. He had hurt their pride and forced them to rethink whether they had been negligent, as Hillier eloquently put it.

They hammered Colvin. There was no torture in Afghanistan on their watch, they said. Nothing of what Colvin said was true. They had done their duty. They exuded credibility.

Perhaps the Colvin reports do clear the generals, but what if they leave Harper and MacKay vulnerable to an investigation for war crimes violations for allegedly ignoring reports of torture in Afghanistan between May 2006 and October 2007?

Gauthier said something rather telling during his testimony. The generals had read the requirements under international law. Gauthier was adamant that  “we have understood our legal liability.”

International law holds the Harper government, not the Canadian military, responsible for setting prisoner-transfer policy in Afghanistan.

Was the general trying to tell us that others might not have understood their own legal liability?
It was particularly strange that the generals made no effort to defend Harper and MacKay in their comments. They protected their backsides.

Gauthier, in fact, openly defied Harper and MacKay. He said he “sincerely” hopes the Colvin documents are made available “soon” so that people can see for themselves how our generals weren’t to blame and didn’t ignore warnings of torture in Afghan prisons.

Harper would rather swallow a bag of rusty nails than release the Colvin documents. In the end, he may be forced to release a version of sorts. If it is so redacted as to be virtually meaningless, it will bring on more public criticism.

The usual approach for Harper on major scandals of this kind is to use the 3-D strategy: discredit, deflect, and dissipate.

Discrediting went over well at the start. MacKay clobbered Colvin in the Commons. The polls showed a majority believed Harper rather than the diplomat.

Deflecting isn’t going as well because the generals protected themselves without exonerating Harper.
Harper made it worse by speaking on the issue himself in the Commons. That’s called choosing to wear the scandal around your neck.

Maybe Harper had to come to MacKay’s rescue. Maybe MacKay was set up from the start.
Dissipate? This could be the scandal that never dies.

With 76 copies of the Colvin memos floating around Ottawa, it’s only a matter of time before the leaks begin.
Seventy-six e-mails of 16 reports aren’t a secret; they’re a broadcast.

The leaks have already started. There was Alex Neve, secretary general of Amnesty International Canada, standing up at a news conference and waving around a CD containing backup information for the Colvin reports.

It’s too late now to send somebody over to rip it out of Neve’s hands.  
The Harper government has threatened anyone who leaks the Colvin memos with prosecution under the Official Secrets Act.

But jailing the head of Amnesty International? That’s out of the question.
The CBC has the report of a Canadian torture inspector who interviewed prisoners in the Sarpoza jail in Kandahar that backs up Colvin.

It’s an interesting development given MacKay’s claim that there was no independent confirmation of those allegations.

There are still those non-governmental organizations that spoke to Colvin, the findings of the Afghanistan Independent Human Rights Commission, critical documents from the Red Cross, and various Dutch and British warnings to Canada.

There is a letter circulating that was sent to the Harper government detailing how the Dutch thought our military was doing such a sloppy job of transferring detainees without proper followup that they proposed to set up a joint prison facility run by their troops.

The defence minister at the time, Gordon O’Connor, never followed up.
Obviously, trying to prevent Colvin from getting his own lawyer didn’t work.

Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is [email protected]

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Federation of Ontario Law Associations and FullStop slate trade barbs over law library funding

OCA finds force majeure clause allows for rent-free lease extension over COVID-19 lockdown period

Changes to personal injury law rules mean firms must be strategic: innovation forum webinar panel

Ontario Justice Education Network welcomes Kristy Pagnutti as executive director

Ont. Superior Court finds plaintiff's costs in medical malpractice case unreasonable and excessive

How to argue an injury case against a ski resort when you have signed a liability waiver

Most Read Articles

ChatGPT may improve access to justice, but won’t replace lawyers: Law Commission of Ontario webinar

OCA finds force majeure clause allows for rent-free lease extension over COVID-19 lockdown period

Changes to personal injury law rules mean firms must be strategic: innovation forum webinar panel

Ont. Superior Court finds plaintiff's costs in medical malpractice case unreasonable and excessive