Afghanistan Committee on Nov. 26th, 2009

[His Excellency David Mulroney]

Sure.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Mulroney, if I heard you correctly, you said you were talking to the PCO on a daily basis about every aspect of the detainees. Clearly then it begs the question, what about the Prime Minister's Office? Were you in touch with them, and what information and who in the Prime Minister's Office?

And also, very quickly, for reports that were judged by this government as supposedly not credible, who decided upon receipt that they weren't credible, and how was that determination made? And who again was the final arbitrator in determining whether a report was credible or not?

[His Excellency David Mulroney]

Okay, can I come back and try to answer those questions?

[The Chair, Conservative, Rick Casson]

You have two minutes, Mr. Mulroney.

[His Excellency David Mulroney]

Okay.

First, whether someone was or was not a Canadian-transferred detainee is a very important issue. We were not able to determine that. We had no way of believing that these people that Richard saw in Kabul were Canadian-transferred detainees, so as a result we worked on a database that started from any arrest of a detainee right through to his being placed in the Afghan justice system. We developed a database where we could speak with confidence.

The AIHRC report you speak to is a report on the causes of torture, and something like 300 and some people are identified. I think in the report you'll find they are self-identified victims of torture, so the high percentage is because they were self-identified. There were issues with the methodology of that report, but we've never disputed that there were significant problems in the Afghan system.

At PCO, the Foreign and Defence Policy Secretariat has an Afghanistan officer. They had one when I was there and they had one afterwards. They were part of a big interdepartmental community that consulted on these issues, but my dealings were with PCO.

Thank you.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

On the issue of what's credible and what's not, who actually—

[His Excellency David Mulroney]

That's why moving to fact-based work was important. Actually going into the prisons with a standard template, asking the same questions, having a database where we could determine whether we were dealing with the same person—because many people have the same name in Afghanistan—through the system, where we had people who were trained in torture awareness in these interviews, that is when we could speak with authority on what was happening.

We could not do that before that. The fact that we put a system in place enabled us to meet our obligations. It's robust, and it has worked over time.

[The Chair, Conservative, Rick Casson]

Thank you.

Back over to the government, and then to the Bloc.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chairman.

During the time that Mr. Colvin was making his testimony, I made an observation directly to him that I didn't question his observations. They were his observations, and I'm sure they were factually reported, and I'm sure he's an honourable gentleman.

Regrettably, the conclusions he arrived at I think are erroneous. That said, the fact that we have had only his testimony, of the 5,000 people involved in this issue so far, and we have had the testimony of three generals, who I have the utmost faith in, and you as well, sir, I'm finding it rather interesting where we are at this particular point. No matter what somebody says, it's still based on an erroneous, in my judgment, opinion that Mr. Colvin arrived at.

General Hillier said yesterday, with respect to Mr. Colvin's memos, that “there was no reason, based on what was in those reports, for anybody to bring it to my attention”, when he was speaking of the reports that he may or may not have seen as they came up from Mr. Colvin. Would you agree with that assessment?

[His Excellency David Mulroney]

Yes, in that he never brought forward—and I think Richard would say this—any report alleging mistreatment of a Canadian-transferred detainee.

But let me say something about Richard's reporting. I didn't disagree with his fundamental issue, which was that we needed to develop a robust and better system. In fact, that is what we did. His advice was important. We considered it. We built a better system. I didn't agree with his assertion that everybody who went into the NDS was tortured, that the detainees were all farmers or probably all innocent. This is where I think he went from an observation to speculation. But at the end of the day, he was a believer in creating a robust monitoring system, which is what we did.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Mr. Mulroney, you have a tremendous amount of experience in the Privy Council Office, and many people in Canada probably are not aware of how it is in place to be able to protect the government not from the people of Canada but from the rest of the countries around the world, to keep our information intact, so that all of our armed forces and all Canadian interests are protected. So I think you're a very qualified person to ask what you think. Of the mass release of unredacted documents related to this, how much harm would it have the potential to cause? Can you paint us a bit of a picture? Because I have an idea that it could be pretty profound.

[His Excellency David Mulroney]

In general terms, I think there are a couple of concerns. This is true, and I am not speaking of the material that you discussed earlier.

Reporting from the field and reporting from Afghanistan often includes information provided to us by our military allies, who provide it in confidence, or by the Government of Afghanistan, who provide it in confidence.

It also includes, from time to time, information from international human rights organizations, who must operate in confidence. Their access, which is important to us, depends on their being able to deal with us in confidence. If we betray that, we run the risk of damaging their access to these institutions, because they're seen as honest, disinterested parties.

So these are areas where the disclosure of information either hurts us in terms of our access to important information, or damages the work of important international human rights organizations.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Okay. Thank you.

Mr. Kerr.

[Greg Kerr, Conservative, West Nova, NS]

Thank you, Mr. Mulroney. We know how difficult and complicated the issue is.

I would just like to go back, in referencing Richard Colvin. We know you were copied on a lot of his C4 mailings. Can you advise whether he or any DFAIT officer working in Afghanistan ever suggested that you stop the transfer of prisoners to the Afghan jails? If so, why was his advice taken or not taken? In other words, did you ever give that direct advice that transfers should stop, and if so, what was the reaction to it?

[His Excellency David Mulroney]

That advice would have come, and was built into our strategy, after we signed the arrangement. When in November 2007 we had credible evidence of mistreatment, we made the determination through our ambassador that we had lost confidence in Afghanistan's ability and willingness to live up to the arrangement we had set, and we ceased transfers. But prior to that, there was no such decision made based on any kind of credible evidence.

[The Chair, Conservative, Rick Casson]

Over to Madame Lalonde, and then back to government.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Thank you.

Good afternoon, Mr. Mulroney.

I wonder how it is that the 2005 agreement came to be negotiated, with its inherent weaknesses, whereas you, who were already over there, had stated that you were aware of the problems within the Afghan prison system. I understand. We knew that the way Afghan prisoners were treated certainly did not correspond to the requirements of the Geneva Convention.

In these circumstances, and based on the knowledge, information and contacts, who negotiated this agreement in June 2005? Foreign Affairs? I don't know, but I would like to. You can answer me later.

Do you why the conditions called for in the agreement were not the ones put forward by the Dutch and the British in their agreement? These included free access, notice prior to transfer... There were several conditions, of which you are undoubtedly aware, that ensure that the Dutch and the British would not have the same unpleasant surprises as Canada.

I repeat that the negotiators should have known that they were required to comply with the Geneva Convention and that they could in no way run the risk that the prisoners they were transferring would be tortured.

You stated that when you arrived, you became aware of these problems, and that another agreement was negotiated. That certainly means that you kept the Prime Minister informed. When did you inform him of your observations?

And yet I am intrigued. I asked several questions repeatedly in the House of Commons, and my colleague could tell you the same thing. Up until May, we were told that they were very satisfied with the system, that there were no problems and that we were the ones who were creating problems.

I know that is a great many questions, but I am expecting a great many answers.

[His Excellency David Mulroney]

I did not negotiate the 2005 agreement, and I wasn't on the file at that time.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

I know.

[His Excellency David Mulroney]

However, it's important to remember the context. In 2005 the Canadian Forces had not yet even deployed to Kandahar. When they deployed to Kandahar they deployed in green uniforms with Iltis vehicles that were under-armoured. We did not know the ferocity of the insurgency that we'd face.

So the agreement of 2005 importantly puts a responsibility on the Government of Afghanistan. That's not an unimportant issue, because at the end of the day we have to leave capacity in Afghanistan. It has to be Afghans who are responsible for their own institutions and for providing justice.

Through 2006, which was a terrible year, as I indicated, we gained more experience, and it was clear that we needed a much more robust agreement. That's the agreement that we got--

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

But there was still the Geneva Convention. Canada had international responsibilities in 2005 as well.

[His Excellency David Mulroney]

The 2005 agreement is entirely in accord with the Geneva Convention, but we felt that we could do more, we could make it more robust, and we could make it better.

In 2007, when I came to DFAIT, I was working for Minister MacKay and my reporting went up through him.

[The Chair, Conservative, Rick Casson]

Mr. Bachand, you have just a little bit of time, less than a minute.

[Claude Bachand, Bloc, Saint-Jean, QC]

I only need 30 seconds.

Mr. Mulroney, you state that it is very important, when the Canadian soldiers transfer detainees to Afghan prisons. You attach importance to the fact that these detainees were not tortured.

However, that is not what the Geneva Convention says. Where there is a high risk of torture, you do not have the right to transfer these soldiers to the Afghan authorities. You have enough experience to know that this risk existed, because you told me so earlier.

Why, for a certain period—a long period—did you continue to transfer them to the Afghan authorities?

[The Chair, Conservative, Rick Casson]

A short response, please, sir.