Monday, April 19, 2010

More of that blind justice

Last week we saw a government lawyer at the Military Police Complaints Commission telling the witness, diplomat Richard Colvin, what was in Colvin's memos because only he, government lawyer, was able to have access to them. He was, incredibly, giving evidence, telling Colvin what Colvin was not able to access for himself.

If that wasn't enough for you, on Friday, we saw round two. General Natynczyk released a letter responding to translator Ahmadshah Malgarai's allegations before the Commons Afghan Special Committee. Those were the shocking allegations about the 17 year old who had been unlawfully shot by Canadian Forces and the allegations of sub-contracting out torture to the Afghans. So what's round two? Once again, none of the evidence upon which Natynczyk's letter is based is accessible to anyone else in order for it to be examined in a fair process. Here is some of Natynczyk's letter which gives a sense of what evidence he is able to access and the untestable conclusions he draws:
"Details of this event are very well documented."
"Operation reports which unfortunately cannot be made public as they contain sensitive information about tactics, techniques and procedures, indicate that during the mission an armed individual posed a direct and imminent threat to CF soldiers as they entered the compound..."
"During tactical questioning of the detainees, two individuals made allegations that coalition forces had planted a pistol on the deceased insurgent. It is worth noting that one of the two individuals later retracted his allegation.

Immediately following the mission, an after-action review was conducted to review the actions and outcomes of the operation. It was determined that all applicable rules of engagement and theatre standing orders were followed."
"The Canadian Forces do not transfer individuals for the purposes of gathering information."
You can understand that the military would want to respond to the serious allegations from Malgarai. And Natynczyk's version of facts on the shooting allegation might be true. But it might not too. It's hard to know because we can't test that version independently. We're supposed to just take the letter with its answers and be further assured that the military is investigating the new allegations, even though they seem to be quite confident that all the rules were followed the first time they conducted an after-action review.

There are specific factual questions about Natynczyk's version, as the translator's lawyer, Professor Amir Attaran, points out here. In your average civilian run democracy that respects the rule of law, resolution of the allegations would not be left in the hands of an interested party, the military, to investigate itself. That democracy doesn't seem to be us though.

By the way, here was Peter MacKay's contribution to this discussion, offered yesterday:
"We take these issues very seriously. What Gen. Natynczyk has put forward casts the allegations that we heard last week a very different light than the way in which they were presented," he said from Edmonton.

"All I can tell you is that, having spent some time in a courtroom, having worked as both a prosecutor and a defence lawyer, there are usually two if not eight different sides to a story and the more information the better."
Yes, jack of all trades lawyer, the more information the better. But in MacKay's courtroom, there was an independent arbiter. That's what we need here, otherwise, two if not eight different sides to a story will just leave it all confused and unresolved. Unless that's what you want, of course...