Canada stopped transferring prisoners into Afghan custody months ago after discovering compelling evidence of torture, Ottawa admitted yesterday.
The government kept its decision under wraps, even as it prepared to fight rights groups seeking a halt to transfers in court today.
Justice Department lawyers acknowledged yesterday that Canadian Forces had stopped handing over detainees in November after a prisoner told diplomats visiting a secret jail in Kandahar that he had been beaten. He also told them where they could find the electrical cable and rubber hose used by his torturers, which the diplomats later discovered beneath a chair.
"Canadian authorities were informed on November 5, 2007, by Canada's monitoring team, of a credible allegation of mistreatment pertaining to one Canadian-transferred detainee held in an Afghan detention facility," the lawyers said in a letter to Amnesty International Canada and the British Columbia Civil Liberties Association.
"As a consequence there have been no transfers of detainees to Afghan authorities since that date," the letter confirmed.
"It's staggering," Jason Gratl, president of the BCCLA said of the government's belated admission. "In matters as important as complicity in torture and its conduct of war, the government owes Canadians some explanations in an open and frank manner."
The government, which is trying to drum up support for extending the Afghan mission, only revealed it had ceased transfers as it tried to make a deal with Amnesty and the BCCLA to drop their application for an injunction.
But Ottawa refused a counteroffer in which it would have agreed to give seven days notice before resuming transfers.
The hearing on the injunction is expected to proceed this morning.
It's not clear whether troops are still taking prisoners only to release them, holding them in temporary cells run by Canadian Military Police on Kandahar Air Base or once again turning prisoners over to U.S. forces, which operate a prison at Bagram in Afghanistan.
"Concerning the matter of detainees, the number of detainees, if they are being transferred or not, these are all operational matters and are the responsibility of the Canadian Forces. The Government will not provide any comment on operational matters," said Sandra Buckler, spokeswoman for Prime Minister Stephen Harper.
The letter to Amnesty and the BCCLA continued: "Canada will resume transferring detainees when it believes it can do so in accordance with its international legal obligations."
Among those obligations is a Geneva Conventions prohibition against handing prisoners over to those who would abuse or torture them.
Given the widely documented and widespread abuse and ill-treatment that is rife in Afghan prisons, Mr. Gratl said he "could not foresee detainee transfers resuming in the foreseeable future.
"The government's decision amounts to a concession that the May, 2007, monitoring agreement has failed to prevent torture by Afghan authorities," he said.
That agreement, which allows for follow-up inspections, was negotiated only after former defence minister Gordon O'Connor's assurances that the International Committee of the Red Cross would report abuse of transferred prisoners back to the Harper government were shown to be wrong.
More than a month after it stopped handing prisoners over to Afghanistan's National Directorate of Security, the Harper government sent a senior general to give a sworn affidavit in the case brought by Amnesty and BCCLA.
The rights groups wanted transfers banned, claiming the government is bound by both international law and the Canadian Constitution from delivering detainees to those likely to torture or abuse them.
Brigadier-General André Deschamps, chief of staff to Canada's Expeditionary Forces Command, which runs the counterinsurgency operation in Afghanistan, asserted that Canada would have to quit fighting if it was barred from transferring detainees.
He also said, in his Dec. 14 affidavit, that more Canadian troops might be killed if detainee transfers were halted.
Listing a long series of possible embarrassments and defeats, Gen. Deschamps, outlined what he said would be the dire, war-losing consequences should Canada be barred from turning prisoners it captured on the battlefield over to Afghan security forces.
Taliban fighters might surrender in droves, warned the general, if they knew Canada would release them because it could not either hold them or transfer them.
"The insurgents could attack us with impunity knowing that if they fail to win an engagement they would simply have to surrender and wait for release to resume operations," he said.
"The Canadian Forces has no capacity or ability to hold detainees other than for transfer purposes," said Gen. Deschamps, an air force officer.
Building a NATO detention facility, perhaps on the Kandahar base, which currently houses more than 10,000 troops, has been repeatedly suggested by international human-rights groups. Canada and most NATO nations are opposed.
"The long-term, indefinite detention of detainees in such circumstances would be inconsistent with the sovereignty of Afghanistan," Gen. Deschamps said.
Madam Justice Anne Mactavish has ordered Gen. Deschamps to appear in Federal Court today where he is expected to face tough questioning from lawyers for Amnesty and the BCCLA.
Dec. 19 Then-defence-minister Art Eggleton reveals that Canadian forces, specifically commandos from Joint Task Force 2, have joined the war, sparking concerns about whether troops would turn captured Afghans over to U.S. authorities.
Jan. 21 Canadian commandos turn three captured al-Qaeda fighters over to the U.S. military.
Jan. 28 Then-prime-minister Jean Chrétien says the government is reviewing its policy on prisoners and that opposition concerns are "hypothetical" because none have been taken.
Jan. 29 Mr. Eggleton admits he learned eight days earlier that Canadian commandos had turned over prisoners without any assurances about whether they would be treated as prisoners of war.
Feb. 6 U.S. President George W. Bush says that Taliban prisoners would be considered POWs under the Geneva Conventions, but al-Qaeda prisoners would not.
Feb. 7 Both Mr. Chrétien and Mr. Eggleton say they are satisfied with this guarantee.
Dec. 18 General Rick Hillier, Chief of the Defence Staff, signs an agreement with Afghanistan's Defence Minister stipulating that detainees handed from Canadian to Afghan custody will be treated in accordance with the third Geneva convention, which forbids torture and other inhumane treatment.
May 31 Defence Minister Dennis O'Connor says the International Committee of the Red Cross is monitoring detainees, and will report prisoner abuse to Canada.
February Investigations are launched into the treatment of Afghan detainees after The Globe and Mail publishes allegations of abuse.
Feb. 21 Amnesty International and the British Columbia Civil Liberties Association file an application in Federal Court seeking a judicial review of the military's detainee-handover policy, questioning whether Canadian soldiers abroad are legally bound by the Geneva Conventions.
March 21 Mr. O'Connor apologizes for providing inaccurate information. "I would like to be clear: The International Committee of the Red Cross is under no obligation to share information with Canada on the treatment of detainees transferred by Canada to Afghan authorities," he tells the House of Commons. "The International Committee of the Red Cross provides this information to the country that has the detainees in its custody, in this case, Afghanistan."
April 23 During 30 face-to-face interviews with The Globe and Mail, Afghans detained by Canadian soldiers and sent to Kandahar's notorious jails say they were beaten, whipped, starved, frozen, choked and subjected to electric shocks during interrogation.
April 24 Stephen Harper brushes off calls for his Defence Minister's head and dismisses the furor over the torture of Afghans captured by Canadian soldiers as "allegations of the Taliban. ... We do not have evidence that [the torture] is true."
April 26 The Harper government buckles and announces a new deal providing Canadian officials with full access to Afghan jails.
July 9 It is learned that Gen. Hillier's office has halted the release of documents relating to detainees captured in Afghanistan under the federal Access to Information Act, claiming that disclosure of any such information could endanger Canadian troops.
Sept. 22 Canada is unable to account for at least 50 prisoners it captured and turned over to Afghan authorities, frustrating efforts to put to rest concerns the detainees were subject to torture. Canadian sources blame the Afghans' shoddy record-keeping and suggest the detainees have likely returned safely to their homes. But officials familiar with Kandahar's justice system say the possibility of foul play cannot be dismissed.
Nov. 13 Turning Afghan detainees over to known torturers breaks international law, and Canada, along with other NATO countries should impose an immediate halt to transfers, Amnesty International says.
Nov. 15 Canadian officials confirm they have evidence a Taliban detainee showed signs of physical abuse, the seventh such allegation made by detainees since Canada began systematically visiting Afghan prisoners in May.
Jan. 22 Compelling evidence that Canadian-transferred detainees are still being tortured in Afghan prisons emerges from the government's own follow-up inspection reports.