The War of Fog: Canadian Prisoners in Afghanistan

Mr. Robert Marleau
Information Commissioner of Canada
Place de Ville, Tower B
112 Kent Street, 22nd Floor
Ottawa, Ontario
K1A 1H3

Dear Mr. Marleau,

I read with great admiration and (Canadian) pride your appeal for the government of Canada to pursue more open communications, honoring the spirit of the Access to Information Act, now 25 years old. I am impressed by your courage and candor.

You spoke of the editorial in the Globe and Mail, particularly regarding Canadian “detainees.” After some days, your essay sticks in my craw.

Note the word “detainee.” The Orwellian construction “detainee” has crept into the language, although I notice both you and the Globe seem unconsciously aware that there might be some conflict between the words “detainee” and “prisoner.” Nevertheless, “prisoner of war” is the language of the Geneva Conventions, although I grant that the power taking prisoners is said to be the “Detaining Power.” Nevertheless, the Third Geneva Convention does not (in English) include the word “detainee.”

This goes back a long way. I actually wrote to Art Eggleton about this when Canada got involved with Afghanistan whenever that was, and when questions immediately arose in the House of Commons as to what the legal basis was for Canadians taking prisoners. Mr. Eggleton wrote me to say that Canada was acting with NATO in collective self-defense, a bit of a stretch since Afghanistan hadn’t attacked anyone, but he also misled the House, saying Canadian troops had not taken prisoners when they had.

With this worry in mind I requested information on prisoners taken by Canadian troops during Operation Medusa in 2006. The application was received by the Department of National Defense in December 2006. Now, 14 months later, I have no information (except for 73 pages of whiteout), and my appeal rests in your office. I have also been told that the reason I have no information is secret. It’s like Kafka, Heller, and Orwell all at once.

The motivation for caring about the whole thing is that my grandfather spent three years in the trenches in World War I, my uncle got part of his head shot off in the same war, and my father was an infantry instructor at Shilo, Manitoba, in World War II, and was at Fort Benning, Georgia, on the way to Japan when peace broke out. All these guys signed up for a lousy, dangerous, low-paying job because they thought it was the right thing to do. I have absolutely no doubt that all the Canadian soldiers in Afghanistan also believe (or passionately wish to believe) they are doing the right thing.

Unfortunately, some crucial facts are against them, and you, and I would like to know, given your passionate appeal for open communication, why my request for information is being dragged through the mud, like some luckless artillery horse in Flanders.

The facts, as I understand them, and not refuted by any available evidence, are as follows:

  1. Canada and other NATO countries invaded Afghanistan in 2001 in the right of “collective self-defense.”
  2. Canada, along with other NATO countries is an “Occupying Power.”
  3. Prisoners taken by Canadian troops are therefore subject to the Geneva Conventions.

Articles 10 and 12 of the Third Geneva Convention make abundantly clear that prisoners taken must be cared for by the “Detaining Power,” and if transferred to a “Transferring Power,” such transferring power must be a signatory to the Geneva Conventions. The Islamic Republic of Afghanistan has not signed any Geneva Conventions. Furthermore, Article 10 of the Third Geneva Convention makes clear that signing agreements with local authorities when the country is “occupied” is illegal. Therefore, Canada’s agreements with the Islamic Republic of Afghanistan regarding prisoners are invalidated by the Geneva Convention they claim to uphold.

Talk is cheap. Your essay is eloquent, but your deeds are foul. The fact that some (I’m choosing my words very deliberately) dork in the Department of National Defense decrees that all information released about Afghan “detainees” must be “severed” is a national disgrace, and the fact that you’re not all over him like a rash (I’m a dermatologist, so I can say these things) is also a national disgrace. His ass should have been hauled up in Federal Court before now, particularly by you. You can talk the talk, but Amnesty International and the BC Civil Liberties Association are walking the walk.

My file is on your desk.

Yours sincerely,

Neil Kitson