From the desk of Richard Colvin's counsel ...

The revised Memorandum of Understanding (MOU) on detainees for the first time permitted Canadian officials to monitor those detainees already transferred to Afghan authorities. As soon as we began monitoring, we found detainees in both Kandahar and Kabul with credible accounts of torture.

5. 'The suggestion that all detainees were tortured is speculation.' 

From Colvin's rebuttal:

[I]t was generally known that prisoners in Afghanistan are routinely tortured or abused. In Kandahar, the risk is even higher than in the average province. Kandahar is on the front lines of the insurgency. Each side treats the other with brutality, and NDS officers and their families are regularly targeted and killed. About half the NDS's staff formerly served in KhAD, the KGB‐trained Soviet‐era intelligence service, which also had a well‐deserved reputation for ferocity. General Rick Hillier and Lieutenant‐General Michel Gauthier, the architects of Canada's detainee system, both had extensive first‐hand experience of Afghanistan. Lieutenant‐General Gauthier commanded Canadian troops in Kandahar in 2002, and General Hillier commanded ISAF in Kabul in 2004. It is implausible that they would not have known how Afghans treat their prisoners. 

  6. 'When we got reports of torture, the Afghans investigated.' 

From Colvin's rebuttal:

We asked NDS to look into the cases of all three of the individuals who had reported torture, as we did not know at the time which were 'Canadian.' Either later in June or in July 2007, the NDS sent Ambassador Lalani the result of their investigation ‐‐ a one‐page sheet, with two paragraphs of text, saying that NDS had looked into the three cases and found they had no basis. There was no additional information. The 'investigation' was so weak that mbassador Lalani refused even to accept the report. He sent it back to the NDS.

7 . 'There was no option but to hand detainees to the NDS in Kandahar.' 

From Colvin's rebuttal:

It is not the case that Canada had no alternative but to transfer our detainees to the NDS in Kandahar. There were at least three viable alternatives. 

 8. 'Afghans were only detained if there was proof that they were insurgents.' 

From Colvin's rebuttal:

However, it was the NDS that told us that many or most of our detainees were unconnected to the insurgency. This assessment was reported to Ottawa. The NDS also told us that, because the intelligence value of Canadian‐transferred detainees was so low, it did not want them. 

  9. 'Embassy/ PRT reporting was secondor thirdhand, expressed opinion not fact, and generally unreliable." 

 From Colvin's rebuttal:

Diplomats traffic in information. We seek out the most authoritative sources, build a relationship with those individuals, and report their information and assessments. Because of my positions (the lead DFAIT official in Kandahar, and then the #2 official at the embassy in Kabul), I met regularly with the heads of each of the entities listed above, as well as more junior staff who were experts on detainee questions. Information was cross‐checked and triangulated. [...] In sum, we had access to very reliable sources and very good information.

10. 'Ottawa encouraged accurate, rigorous, factbased reporting.' 

From Colvin's rebuttal:  

Interdepartmental Coordinator for Afghanistan David Mulroney suggested that the only reason reports were edited was to remove 'opinion' or 'non‐fact based' information. This is not correct. Instead, embassy staffers were told that they should not report information, however accurate, that conflicted with the government's public messaging. [...] In September 2007, an embassy staffer, in response to a written request from DFAIT's Afghanistan Taskforce to contribute to a security assessment by one of our NATO allies, sent a report that security in Kandahar had got worse and was likely to further deteriorate. Mr. Mulroney severely rebuked the officer in writing. 

  11. 'Embassy reporting was not censored.' 

From Colvin's rebuttal:

After sending out the embassy's April 24 and April 25 recommendation on detainees, which included some new information (for example, that many of the detainees were unconnected to the insurgency), I was phoned by Assistant Deputy Minister Colleen Swords. She told me that in future, it would be better not to put things in writing but to use the phone. She testified to the Committee that the reason she made that phone call me was to stress that we should use the phone first, and to write later. This is incorrect. Her message to me was that I should use the phone instead of writing. I had never met or even spoken to Ms. Swords before her phone call, and did not do so again until after I had left Afghanistan. This was therefore a rare intervention. 

  12. 'We had already decided to sign a new MOU.' 

From Colvin's rebuttal:

On 24 April, 2007, the embassy submitted written comments, and three recommendations, on a 'Detainee Diplomatic Contingency Plan' sent from Ottawa on 21 April. In our one‐page memo, we suggested that Canada should negotiate a new detainee MOU, set up an effective monitoring mechanism, and try to reduce the number of detainees taken. Mr. Mulroney replied within hours to eject our advice, instructing us instead to implement the contingency plan. [...] The fact that the 'contingency plan' made no mention of Canada's signing a new MOU, as well as Mr. Mulroney's strong negative reaction to our recommendation that we do so, suggest that the decision to proceed with a new MOU was taken after April 24, 2007. 

  13. Colvin has no credibility. 

From Colvin's rebuttal:

On the question of credibility, some officials have suggested that I only left the PRT once and was mostly confined to compounds. For the record, I went "outside the wire" in Kandahar at least eleven times, including attending a shura of 300 elders in northern Kandahar (which was widely covered by the media), visiting villages in Arghandab, and spending the night at a forward operating base in Panjwayi. In Kabul, I left the protected embassy zone (presumably "the wire") an average of twice a day ‐‐ probably 500 times in total. I also travelled to other provinces. The argument also suggests a misunderstanding about the PRT. We received a constant stream of visitors, including the governor, tribal elders, international officials, aid and counternarcotics workers, and Afghan government officials and Provincial Council members. We also had many indigenous sources of information, including Afghan staff; CIDA, RCMP and USAID officials; a tactical operations centre; civil‐military officers; intelligence capabilities; and diplomatic and military reporting from Kandahar airfield (KAF) and Kabul. These collectively provided better information than trips into the field. 

  14. 'We don't read reports. It was up to DFAIT people/ our staff to tell us. Somebody hould have grabbed us by the ear and told us detainees were being tortured.' 

 From Colvin's rebuttal:

The three generals testified that, if only somebody had spoken to them directly that detainees were being abused, they would immediately have responded. However, they did have the information. The PRT report on procedural problems with detainees (KANDH‐0029 of May 26, 2006) did generate a written response from Ottawa. That reply (IDR‐0512 of June 2, 2006) shows that the message was widely read across the government, including by CEFCOM. The PRT's subsequent detainee report (KANDH‐0032 of 2 June, 2006) raised an even more important issue: Serious concerns about "the overall treatment of detainees by Afghan authorities, including those transferred by Canadian forces." If the information in that report was not acted on ‐‐ and it was not ‐‐ it was not because it was not read. 

  15. 'You should have told the minister.' 

From Colvin's rebuttal:

In the case of Minister MacKay, I did spend several hours hosting him at the PRT. As the senior DFAIT officer in Kandahar, I was in charge of his program, accompanied him to his meetings and took notes. However, that is the only time I met him. His visit took place on approximately May 8, 2006. I arrived at the PRT for the first time first ten days earlier, around April 28, 2006. Organizing the minister's program was my first assignment in Afghanistan, and the report I wrote on his visit the first report. After just ten days in the field, I had had no meetings on detainees and knew nothing about Canadian detainee practices. The visit to Sarpoza was on May 16, with follow‐up meetings on detainee conditions in the period May 23 to May 30. On May 8, even had I been inclined to violate protocol and inform Minister MacKay, I would have had nothing to tell him. 

  16. '2006 was a terrible year. Kandahar was a mess. Of course our detainee system was a mess.' 

 From Colvin's rebuttal:

According to testimony to the Military Police Complaints Commission, it was CEFCOM in Ottawa, not military officers in the field, that made decisions about each detainee, and urged the field commanders to transfer them to NDS as fast as possible. It was also CEFCOM that created the artificial delays that kept out ICRC monitors during the critical first days when detainees were being interrogated by the NDS.