This essay was first published on several Canadian websites in April 2011, during an election campaign that Stephen Harper hoped would give him a parliamentary majority. I wrote this essay out of anger—anger, first, that Canada had been drawn into an illegal war of military occupation in Afghanistan. And a deeper anger that the war’s justification, and the manner in which it was being fought, both rested on practices of torture. Canadian troops were implicated in torture, and so were our military and political leaders, right up to the top. Prime Minister Harper was able to smother the scandal of this dirty war by shutting down the Military Police Complaints Commission and proroguing Parliament. By the time of the 2011 election the issue had largely faded from public discourse.

Now, a decade later, the abrupt collapse of the puppet regime has made Afghanistan into front-page news. But the key issues of the war’s illegality and dirtiness have for the most part been allowed to slip down the memory hole. That forgetfulness does a disservice to the 350 Canadians who were killed in Afghanistan between 2001 and 2014 or who committed suicide after their return, to the much larger number who were permanently maimed, whether physically or psychologically—and to the incalculable number of Afghans who suffered and died as a result of Canada’s presence in their country.

—Michael Keefer, August 26, 2021

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Torture has been a grim component of nearly every aspect of the current war in Afghanistan. Setting aside the behaviour both of the Taliban regime and of their Afghan opponents, the warlords of the Northern Alliance, which included grievous violations of human rights, US forces were involved in torture from almost the moment of their arrival in Afghanistan in late 2001.

In the years after 2001, the US government attempted to justify its invasion and occupation of Afghanistan through narratives of the 9/11 terrorist attacks that were based almost entirely on confessions elicited by torture from actual or suspected associates of Osama bin Laden.

And torture has been an integral part of the counterinsurgency tactics employed by the US, its NATO allies, and the Karzai regime. These tactics—involving infantry sweeps through communities in whose vicinity resistance has been encountered, more or less indiscriminate arrests, and the handing over of prisoners to the Afghan police or to the National Directorate of Security, whose ‘intelligence’ (based on torture) then serves as a guide to further arrests—have victimized large numbers of civilians, most of them people with no connection to the Afghan resistance.

Canada, as a practitioner of these tactics, has been implicated since at least 2005 in a detainee-torture scandal, one of whose consequences has been very serious damage to Canada’s international reputation. There is evidence that this scandal reaches to the very highest levels of the Canadian government.

The illegality of the Afghanistan War

Growing numbers of people are skeptical about the justifications offered by the United States for the invasion and occupation of Afghanistan. Nearly all of the ‘evidence’ in the key chapters of the 9/11 Commission Report which assign responsibility for the 9/11 terrorist attacks is derived from torture—which means that these chapters have the epistemic value of pure fiction (one of the major sources, Khalid Sheikh Mohammed, was waterboarded 183 times by the CIA; his confessions were confirmed by the interrogations of Abu Zubaydah, who was waterboarded 83 times. The 9/11 Commission’s requests to interview these ‘high-value’ prisoners, or even just their CIA interrogators, were denied; and in 2005, in defiance of court orders, the CIA destroyed its videotapes of the interrogations).

The invasion of Afghanistan appears to have been primarily motivated by the energy geopolitics of a new “Great Game.” When the Taliban came to power in 1996, there were negotiations for a Unocal pipeline from the Caspian Basin gas fields across Afghanistan into Pakistan and thence to the Indian Ocean. But after Osama bin Laden’s 1998 bombings of US embassies in East Africa and retaliatory Tomahawk strikes into Afghanistan, these talks collapsed. There is evidence that in the summer of 2001—months before the 9/11 attacks—American diplomats threatened the Taliban that continued obstruction of the pipeline plan would result in a bombing campaign, and their overthrow, by October of that year.

US and Canadian government officials have scoffed at the notion that energy geopolitics had anything to do with the invasion and occupation of Afghanistan. But in June 2008 the distinguished petroleum economist John Foster, who has worked for British Petroleum, the World Bank, Petro-Canada, and the Inter-American Development Bank, published a monograph on the subject of plans for a $7.6 billion Turkmenistan-Afghanistan-Pakistan-India (TAPI) natural gas pipeline that was going to be built, at American insistence, in 2010—and the Canadian government acknowledged that Canadian forces would indeed be assigned to protect the pipeline, whose route lies through Kandahar province, where most of our casualties have been suffered.

However, it was for different reasons that on October 9, 2001, two days after the bombing of Afghanistan began, Michael Mandel, of Toronto’s Osgoode Hall Law School, declared the attack illegal. In his words, it “violate[d] international law and the express words of the United Nations Charter,” whose Article 51 only “gives a state the right to repel an attack that is ongoing or imminent as a temporary measure until the UN Security Council can take steps necessary for international peace and security.” Since the attack was not ongoing, and since neither of the UN Security Council resolutions condemning the September 11 attacks “can remotely be said to authorize the use of military force,” Mandel declared that those who die from the attack on Afghanistan “will be victims of a crime against humanity, just like the victims of the Sept. 11 attacks.” In November 2001, Thomas Jefferson School of Law professor Marjorie Cohn made similar arguments, adding that the bombing was not legitimate self-defence because the atrocities of 9/11 “were criminal attacks, not ‘armed attacks’ by another state.”

Subsequently expounded by Mandel and by Cohn at greater length, and supplemented by further considerations, including the fact that in September and October 2001 the Taliban regime offered to give Bin Laden up for trial in a third country, these views are shared by other leading specialists in international law, among them Francis Boyle, Alex Conte, and Myra Williamson.

The Canadian torture scandal

Illegalities of a more concrete nature have come to haunt Canada’s participation in the war in Afghanistan. In December 2001, a cover of legality was given to the formation of an occupation army, or International Security Assistance Force (ISAF), by the UN Security Council’s acceptance of the claim that this force was established “at the request of the Government of Afghanistan”—which at the time consisted of Hamid Karzai, protected by a guard of US SEAL and British SBS special forces soldiers, and a loose coalition of US-financed ‘Northern Alliance’ warlords. But it was the question of how to dispose of Afghans captured by Canadian troops, whether in combat conditions or merely under suspicion, that developed into a specifically Canadian scandal.

In January 2002, there were questions in Parliament over the revelation that members of the Joint Task Force 2 unit, after taking part in the fighting in the Tora Bora mountains, had transferred prisoners into US custody. The horrors of Abu Graib in Iraq became public knowledge at the end of April 2004. Shortly afterward, it was revealed that prisoners held by the US in Afghanistan were also systematically tortured, and in at least five cases had died from their treatment. In June 2004, a Human Rights Watch spokesman declared that in US prisons in Afghanistan, “The entire system operates outside the rule of law. At least in Iraq, the US is trying to run a system that meets Geneva standards. In Afghanistan, they’re not.”

With the option of Canadian-run POW camps ruled out from the start, and with further transfers into US prisons becoming politically impossible, the Canadian Forces passed captives on to Afghan authorities, amid unlikely claims that ‘state-building’ programs were taking effect. But even after acquiring a façade of legitimacy through the 2004 presidential and 2005 parliamentary elections, the Karzai regime remained one to which any transfer of prisoners was a most dubious matter. By 2005, Eileen Olexiuk, the second-ranking Canadian diplomat in Kabul, was raising concerns to the Paul Martin government about the fate of transferred detainees. Her messages were ignored, and a toothless memorandum of agreement regarding detainee transfers that was signed in December 2005 by General Rick Hillier, Chief of the Defence Staff, and the Afghan Minister of Defence, contained no provisions for follow-up access to detainees. Evidence of systematic torture continued to accumulate, and Richard Colvin, who in 2006-2007 held the diplomatic position Olexiuk had occupied, called attention to it in urgent messages which he circulated as widely as possible through all the official government and military channels available to him.

Article 12 of the Third Geneva Convention is categorical: “Prisoners of war may only be transferred […] to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.” Afghanistan has been a party to the 1949 Geneva Conventions since 1956, and in late 2009 acceded to the 1977 Additional Protocols I and II, which protect victims of international conflicts and civil wars. However, Olexiuk’s and Colvin’s messages show that Canada had not “satisfied itself”—despite whatever senior officials might say—that the Karzai regime would treat prisoners decently.

Even without direct statements from Canadian diplomats, senior military and civilian officials could have no grounds for pretending ignorance. In December 2009, Lawyers Against the War (LAW) itemized in an “Open letter to the Parliamentary Special Committee on the Canadian Mission in Afghanistan” the evidence that Canada’s detainee policies violated Canadian and international law. By the spring of 2007, this included—in addition to legal opinions sent by LAW on February 1, 2004 and March 6, 2007 to Prime Ministers Martin and Harper and their senior ministers—expressions of concern by Amnesty International in early 2002 over detainee transfers to US forces, and in December 2005 over “the widespread, longstanding reality of torture throughout the Afghan prison system;” the Report of the Independent Expert on the Situation of Human Rights in Afghanistan, M. Cherif Bassouni, to the UN Commission on Human Rights (March 11, 2005), referring to torture practices current within the Afghan security system; the London Compact of February 1, 2006, which set as a goal—for the end of 2010—the Afghan state’s adoption of “corrective measures […] aimed at preventing arbitrary arrest and detention, torture, extortion and illegal appropriation of property with a view to the elimination of these practices;” and the US State Department’s report on Afghanistan in 2006, which noted reports by human rights organizations that Afghan authorities in Herat, Helmand and elsewhere used torture consisting of “pulling out fingernails and toenails, burning with hot oil, beatings, sexual humiliation, and sodomy.”

Ironically, it was evidence of prisoner abuse in Canadian rather than Afghan custody, obtained in early February 2007 by University of Ottawa law professor Amir Attaran and passed on to the Military Police Complaints Commission, that helped to give the issue increased public prominence. A quick succession of other events brought the pot to a boil. On February 21, 2007, Amnesty International and the BC Civil Liberties Association applied for a judicial review of Canada’s detainee-transfer policy. In March, the Minister of National Defence, Gordon O’Connor, acknowledged that since April 2006 he had repeatedly misled the House of Commons by falsely claiming that the Red Cross was monitoring transferred prisoners on Canada’s behalf. And on April 23, 2007, the Globe and Mail published an investigative report, based on interviews with thirty Afghan prisoners whom the Canadian army had handed over to the Afghan National Directorate of Security, which showed they had been systematically tortured, with apparent Canadian complicity. University of British Columbia law professor Michael Byers commented: “If this report is accurate, Canadians have engaged in war crimes, not only individually but also as a matter of policy.”

The Military Police Complaints Commission inquiry prompted by Professor Attiran’s complaint subpoenaed the diplomat Richard Colvin, who in late 2009, when the MPCC’s proceedings had been seriously delayed by interventions from the Harper government, was also called before the House of Commons Special Committee on the Canadian Mission in Afghanistan. In October 2009, shortly before he testified there, the claims of Prime Minister Harper and Defence Minister Peter MacKay that they had not been informed on the detainee issue were vigorously refuted by General Rick Hillier’s memoir, A Soldier First.

But Colvin’s testimony on November 18, 2009 was more thoroughly damaging in its exposure of high-level lawlessness. He revealed that the Canadian military’s system of reporting the transfer of detainees delayed follow-up, making it all the more likely that they would be tortured (as his sources thought nearly all of them were). He claimed that in 2006-2007 senior Foreign Affairs officials—including David Mulroney, the Assistant Deputy Minister responsible for Afghanistan, who was also Prime Minister Harper’s Foreign and Defence Policy Advisor—had censored and blocked the distribution of dispatches from Kabul, and he exposed the fact that the government had made very determined attempts to intimidate him and prevent him from giving testimony. Finally, Colvin excoriated policies under which, “disregard[ing] our core principles and values,” Canadians “retained and handed over for severe torture a lot of innocent people,” which is “a very serious violation of international and Canadian law,” and which also “alienated us from the population and strengthened the insurgency.”

Running with the big dogs

“Complicity in torture,” Colvin reminded the parliamentarians, “is a war crime.” By the summer of 2010, despite a disgraceful smear campaign against Colvin led by Defence Minister Peter MacKay (which prompted a public letter of rebuke signed by “more than 100 former diplomats, many of them ambassadors”), despite Stephen Harper’s shutting down of the MPCC by refusing to appoint a replacement when its chair’s term of office expired, and his proroguing of the House of Commons in order to close down the parliamentary committee which had heard Colvin’s evidence (this prompted a public letter signed by more than 175 professors of political science denouncing Harper for having “violated the trust of Parliament and of the Canadian people”), and despite Harper’s defiance of Parliament’s call to have all of the relevant documents released, the full extent and depth of that complicity was evident.

Highly segmented state structures may often seem to operate in an almost chaotic manner. But at times—even when the governing party is doing its best to obscure and deny access to the evidence—a clear constellation of intentionality emerges from the murk. With help from the late Jack Hooper, who was CSIS Assistant Director of Operations from 2002 to 2005, and Deputy Director of Operations until his retirement in 2007, we can give this pattern a name. Known for being pithy and outspoken, Hooper liked to tell his colleagues that “If you’re going to run with the big dogs, you’d better learn to piss in the high grass.”

CSIS, we now know, was involved in interrogating Afghan prisoners from early 2002 until December 2007. Journalists Jim Bronskill and Murray Brewster learned from an unnamed source or sources that one of the Kandahar interrogation sites used by CSIS, “work[ing] alongside the American CIA and in close co-operation with Canada’s secretive, elite JTF-2 commandos,” was a “secluded base” (this seems a polite way of saying ‘black site’ or ‘secret torture facility’) “known as Graceland.”

Running with the big dogs apparently meant complicity in the work of Afghan as well as American torturers. Asadullah Khalid, the governor of Kandahar province, who was widely accused of corruption, drug-trafficking, and direct personal involvement in torture, seems to have retained his position after 2006 only thanks to the interventions of senior Canadian military officials. General Rick Hillier, the Chief of the Defence Staff who famously defined the Taliban as “scumbags and murderers” whom it was the Canadian army’s job to kill, praised Khalid’s work in early 2008 as “phenomenal” and associated it with “some incredible changes in the province,” adding that “if there’s an issue of any kind of impropriety whatsoever, that’s an issue for the Afghanistan government.” It is of course an issue for the Canadian government as well. Scott Taylor, a journalist with wide experience in Afghanistan, has endorsed Hillier’s view of the Taliban, but with an important corrective: “What he failed to mention is that the guys we’re propping up are also scumbags and murderers.”

Richard Colvin’s November 2009 testimony to the Parliamentary Special Committee revealed another aspect of Canada’s collaboration in Afghan torture—a “very peculiar” process, he called it, in which the notification of detainee transfers went from the Canadian military police in Kandahar to the Canadian Forces command group at Kandahar airport, then to the Canadian Expeditionary Force Command (CEFCOM) in Ottawa, who informed the Canadian Embassy in Geneva, who contacted Red Cross headquarters in Geneva, who at last notified the Red Cross mission in Kandahar. While the Dutch and British, who also had troops in southern Afghanistan, notified the Red Cross office in Kandahar directly about prisoner transfers, so that within a day at most the Red Cross could monitor their treatment, this Canadian paper-chase could take weeks or even months—during which time the transferred prisoner became effectively invisible.

What might seem an idiotic instance of bureaucracy-run-wild was actually part of a more serious wildness, a policy of deliberate obstructionism. For as Colvin also testified, “When the Red Cross wanted to engage on detainee issues, for three months the Canadian Forces in Kandahar wouldn’t even take their phone calls. The same thing happened to the NATO ISAF command in Kabul, who had responsibilities to report detainee numbers to Brussels, but were told, ‘We know what you want, but we won’t tell you.’” Senior Canadian officers have indicated the value they placed on ‘intelligence’ received in regular meetings with leaders of Afghan’s notorious National Directorate of Security. And in a May 2007 interview with the Ottawa Citizen’s David Pugliese, one of them was quite explicit about the role the Canadian military and NATO were assigning to the NDS in the counter-insurgency war:

Canadian Brig.-Gen. Jim Ferron says he is confident that Afghanistan’s National Directorate of Security or NDS is following proper procedures when it interrogates insurgent detainees.

The general also pointed out that the NATO-led International Security Assistance Force is interested in further developing its relationship with the NDS because it is a key Afghan government agency and the intelligence it is providing is highly credible in the battle against insurgents.

“We’d like to make (NDS intelligence) a significant part because the best information is the information that comes from the Afghans themselves,” said Brig.-Gen. Ferron, ISAF’s chief intelligence officer. “They have the cultural nuances that we may miss. So I think it’s safe to say we would like to make it more a part of our daily intelligence.”

[…] “Interrogating […] is not a bad word if it’s done properly and professionally,” he explained. “The detainees are detained for a reason. They have information we need.”

Brig.-Gen. Ferron said much of the information a detainee provides is not truthful and is aimed at deceiving military forces. That’s why it is up to intelligence analysts to sift through what is truth and what is deception. “But if we don’t have the information we can’t even start on that process,” he added.

Ferron’s words make clear the Canadian military’s dependence on NDS ‘intelligence,’ and the determination of senior officers to ignore, obfuscate, and dismiss the by-this-time massive evidence of NDS torture practices. In mid-May 2007, someone of Ferron’s rank and position could hardly have been ignorant of the urgent messages about detainee torture that Richard Colvin had been sending from Kandahar and from the embassy in Kabul between May and December 2006—or of the fact that, as Colvin writes, embassy officials had supplemented their written reports by “interven[ing] directly with policy-makers”:

For example, in early March 2007, I informed an interagency meeting of some 12 to 15 officials in Ottawa that, ‘The NDS tortures people, that’s what they do, and if we don’t want our detainees tortured, we shouldn’t give them to the NDS.’ [….] The response from the Canadian Expeditionary Force Command (CEFCOM) note-taker was to stop writing and put down her pen.

As this eloquent gesture suggests, even junior officers in CEFCOM understood that their seniors—the desk-soldiers with aspirations to join the big dogs—wanted to keep other puppies from sniffing out what passes for intelligence-gathering in the tall grass. Indeed, since June 2010 we have known that CEFCOM intervened vigorously in the spring of 2007 to put a stop to Colvin’s circulation of information about the torture of detainees: a CEFCOM memo dated May 7, 2007 declared that “his continued employment in Kabul […] could become a liability to the government of Canada’s interests if left unchecked,” and on two occasions senior officials, including a lieutenant-general and an associate deputy minister, intervened to “caution” him.

Within days of Colvin’s November 2009 testimony to the effect that Prime Minister Harper’s Defence and Foreign Policy Advisor had censored messages from the Kabul embassy about detainee torture, and Colvin’s exposure of the Canadian military’s obstruction of Red Cross and ISAF attempts to monitor prisoner transfers, a report in the Toronto Star revealed how directly the Prime Minister had involved himself in the issue in 2007. According to a former senior NATO public affairs official, the denials of torture issued by NATO in Kabul—“at a time when it was privately and generally acknowledged in our office that the chances of good treatment at the hands of Afghan security forces were almost zero”—were scripted by Harper and his office in Ottawa:

I was told this was the titanic issue for Prime Minister Harper and that every statement that went out needed to be cleared by him personally […]. The lines were, ‘We have no evidence’ of coercive treatment being used against detainees handed over to the Afghans. […] It was made clear to us that this was coming from the Prime Minister’s Office, which was running the public affairs aspect of Canadian engagement in Afghanistan with a 6,000-mile screwdriver.

The pattern that emerges from mainstream news reports is thus one of high-level complicity in torture, combined with attempts—organized from the very top of the Canadian government—to falsify the public record.

According to law professor Amir Attaran, who has seen uncensored versions of the documents that the Harper government has so strenuously resisted sharing with Parliament, the paper trail is thoroughly incriminating. In March 2010 Attiran told CBC News: “If these documents were released [in full], what they will show is that Canada partnered deliberately with the torturers in Afghanistan for the interrogation of detainees […]. There would be a question of rendition and a question of war crimes on the part of certain Canadian officials. That’s what’s in these documents, and that’s why the government is covering up as hard as it can.”

The clear pattern of intentionality revealed in the words and actions of senior Canadian government bureaucrats and senior military officers is both embarrassing (these people actually believe, despite copious evidence to the contrary, that torture produces real ‘intelligence’) and also a scandalous offense against the rule of law.

More scandalous still is the evidence that these people were acting on directives from Stephen Harper—that Harper knew perfectly well that the Afghan puppet-state tortures the prisoners handed over to it by the Canadian Forces, but nonetheless permitted the continuation of this system, and that he actually took charge of the program of lying about it.

Michael Keefer, a graduate of the Royal Military College of Canada, the University of Toronto, and the University of Sussex, is Professor Emeritus at the University of Guelph and a former president of the Association of Canadian College and University Teachers of English. He has published widely on early modern literature and philosophy, and also on contemporary state crimes against democracy and issues of Palestinian and Indigenous rights.