Information & Ethics Committee on May 17th, 2007

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Mr. Chairman.

Thank you to our witnesses for agreeing to stay a bit longer.

In the course of our discussions today I have got copies of what I think must be.... I'm going to ask for Professor Attaran's help in figuring out these documents correctly. Good governance, democratic development, and human rights reports from previous years are very similar in format to the 2006 document, the first page of which we all saw in The Globe and Mail. I don't think what I have is a copy of what Professor Attaran was sent on that disk. It's blacked out, but I can read what's underneath the blacked-out sections. So I suspect it's not the copy he has and it comes from another source.

[The Chair, Liberal, Tom Wappel]

It has to be, because he testified that he could not read underneath the blacked-out portion from his CD.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

That's right. So it's a separate one. I'm just going through it. I have several questions that relate to it, because I am able to see under the parts that are blacked out.

I would like to have had the help of one of our legal experts, but is the stuff that's blacked out that I can read still technically considered to be secret? This is from the 2004 and 2005 reports. Is this now actually open information? I got it from Mr. Peterson.

[Prof. Amir Attaran]

Is it still technically a secret?

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Yes, or is it now something that is actually out there? Do you know?

[Prof. Amir Attaran]

I don't believe that it was ever appropriately a secret.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I accept your argument, Professor. But is it still technically confidential--whatever level it is?

[Prof. Amir Attaran]

The government, the bureaucracy, set the level of protection for documents, I don't, so that question would really have to be directed towards them. You must ask them for a definitive answer. But I think they would construe those words that are not blacked out but greyed out--they're legible under the text you have, and I don't have a copy in front of me--to still be secret. If they did not, as a courtesy to me they probably would have sent me a copy, since I requested it under ATI not long ago. They haven't sent me a copy.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Okay.

That helps me, actually. Now I know how to phrase the question I really wanted to ask you without making specific references and thereby revealing something I ought not to. We are in an open session.

I'm looking at subsection 15(1). That is referred to everywhere without any additional subsections, so I get the impression that the problem you're referring to, of not zeroing in on the relevant subsection of section 15, is a long-standing pattern of behaviour with these reports. But I don't know if that's correct.

[Prof. Amir Attaran]

And I don't know if it's correct, because the document you have in your hand is not one that was disclosed to me. I don't know what the practice is in that document. I can only speak to the documents I've been given.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Right. But the greyed-out documents you were given would have had something beside them, I think. You were holding it up, and it looked to me like it had “15(1)” or something written there. I'm just wondering if this is a long-standing pattern of behaviour.

I think we had a suggestion earlier from Mr. Esau that there's a need to go in and deal with having legislation that is a little more assertive on this. I'm just trying to get my head around this problem. That's why I asked about this subsection 15(1).

You talked about culture, and I'm wondering if this is a long-standing culture. I'm trying to get a sense of that, thus the question I'm asking you.

But I recognize the limits under which you're able to answer.

[The Chair, Liberal, Tom Wappel]

I believe Mr. Esau pointed out that the Somali report, which goes back quite a ways, referenced subsection 15(1).

Or did I misunderstand your evidence? Was it more specific than subsection 15(1)?

[Jeff Esau]

I don't recall whether the Somali report.... I know that the exemptions were made under subsection 15(1), but we weren't the ones who were making them. So I don't know how....

Again, I get back to the idea that exemptions must be limited and specific. As to whether or not the designation “15(1)” is sufficiently specific, the view of the Information Commissioner is the first opinion I look at. I know that in other documents I have from DFAIT, as I mentioned before, it's just written as 15(1). This may be a stamp they have. Maybe they have to get their stamp fixed, I don't know; maybe it should be more than that.

So I've seen it more specific, but I've also seen it as simply 15(1). I'm just going by my own experience.

[The Chair, Liberal, Tom Wappel]

Thank you.

Go ahead, Mr. Reid. We'll start the clock again.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you.

That gives me a pretty good idea, but I can't really pursue the questioning further. I'd have to go into actual blacked-out areas.

I'd like to thank both Mr. Esau and Professor Attaran. I want to say also that I recognize it was very hard for the professor in particular to respond to a question that was as fuzzy as this one was. I appreciate his efforts.

[The Chair, Liberal, Tom Wappel]

Thank you.

Madame Lavallée.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you, Mr. Chairman.

Mr. Vincent will be using the last two minutes of my allocated time.

Mr. Attaran, you said earlier that you strongly believed that an inquiry was needed. There is no doubt that an inquiry is called for, but it remains to be seen whether the RCMP will act. By defeating, on a majority vote, all of the subamendments seeking to hold the inquiry in camera, this committee today voted to hold a public inquiry.

If it becomes an RCMP inquiry, we will never know what really happened. As I am sure you will appreciate, what we are doing here today is very important for how this will all play out.

I would like to come back to the fact that some people have something to hide, some people have a guilty conscience. Our Conservative colleagues, amongst others, have done their best to prevent us from speaking with you. Then there is the fact that it was never made clear which paragraphs of subsection 15(1) were being relied upon—that is another anomaly.

When this report was circulated, somebody somewhere must have read it and been shocked by it. There is at least reason to criticize the government, because the report contains information on the torture of Afghan prisoners, a violation of the Geneva Convention. Why did nobody in the department sound the alarm? Why did nobody act when the alarm was raised?

Somebody somewhere—a politico or otherwise—failed to make this information public and failed to remedy the situation that we are now examining in the House.

Could it be that there was an attempt to keep this report secret? Could it be that it was outrageously censored? Does this government have something, someone or some other country to protect? Perhaps it has plagiarized reports produced by another person or country. Perhaps the government wants to protect people in Afghanistan who did not do their job properly and thus avoid blame.

[The Chair, Liberal, Tom Wappel]

Those are highly speculative questions. Does either of the witnesses want to go there, and if so, which one?

You don't have to answer the question.

[Jeff Esau]

I don't think I can give an answer as to why somebody would do something or not do something.

To go back to the earlier part of your question--and I don't know if you've ever worked in government or not--when you're working in the federal civil service, either in uniform or as a civil servant, and you see your minister being zeroed in on day after day about a certain issue, then it tweaks an extra level of sensitivity and caution around that. I said earlier in my testimony that, according to people I have spoken to within government, within several institutions, there is a chill that goes through when this kind of thing happens. How do people react to a chill? You should have people in here and ask them those questions.

[The Chair, Liberal, Tom Wappel]

Mr. Vincent.

[Robert Vincent, Bloc, Shefford, QC]

Please carry on, you were on a roll.

Who would want to hide things to protect the minister, and why?

[Jeff Esau]

I think everybody has a level of professionalism and ethics, and they want to do a good job. They want to do the things that they're asked to do. In the military it's perhaps even more pronounced, because everyone wears a rank, and you want to be seen to be carrying out orders efficiently and effectively, solving problems, and all the rest of it.

Quite apart from getting into any speculation about any nefarious motives, which I'm not convinced exist here, I think it's just—and somebody used the word earlier—an abundance of caution. I think people freeze up a bit when these things happen, and they may start acting in ways in which they wouldn't normally, and you can see that in the nature of the documents that are released. Documents on detainees that I received in June are much less redacted than detainee-related documents that I'm getting now. In fact, sometimes I get two versions of the same document—a version that was released in June, and a version that's released now, and one you almost can't read because it's been so redacted.

Part of my job as a researcher is to go through and compare, and to keep track of changes. That's why I said I'll be interested to see what's waiting in my mailbox at home, and, if they sent me a copy of the redacted report we're discussing today, whether or not the redactions are going to be the same as the ones that were given to the professor.

[The Chair, Liberal, Tom Wappel]

Could we have a very brief response, please?

[Prof. Amir Attaran]

I agree with Mr. Esau. I cannot say what actual motivations are. I cannot crawl into somebody's head and say, oh, that was the motivation they had at the moment they didn't act. I can give possible, hypothetical motivations.

One that has not been discussed, which I think you need to consider, is that of two of my colleagues, Professor Michael Byers and Professor Bill Schabas. They have expressed the opinion that Canada's transferring detainees when it was known that they would possibly be tortured is highly suggestive of war crimes, and those would be war crimes committed by Canadians. It is a war crime even if you're not the torturer, according to Professor Byers and Professor Schabas. It's a war crime if you're aiding and abetting the torture, i.e., by transferring.

It is possible that some information is being withheld because it is now understood that the consequences of the transfers, perhaps, are very much more troubling than was the case when the transfers initially started. The piece of evidence that--

[The Chair, Liberal, Tom Wappel]

We'll leave it at that, then. Thank you.

We have Mr. Tilson, followed by Mr. Martin.