Posted on 02/11/2008 4:16:05 AM PST by Clive
Thursday's federal court ruling on the treatment of Afghan war detainees made for a good news/bad news sort of occasion. The good news is that federal court Justice Anne Mactavish refused to order our soldiers to stop transferring enemy prisoners into the custody of the Afghan government. The bad news is that she based her judgment not on the merits of the case, but on the fact that Canada's recent decision to suspend such transfers temporarily has rendered the issue moot. Judge Mactavish's judgment leaves the door open for judicial intervention if circumstances require our soldiers to resume prisoner transfers at some future date.
In her judgment, Judge Mactavish highlighted genuine problems with the system used to track and guarantee the safety of Canadian-captured prisoners in Afghanistan. There are inherent difficulties involved with keeping files on these individuals, including the lack of a universally accepted scheme for transcribing Afghan names into the Latin alphabet and the inconsistency of the information sometimes offered by the prisoners themselves. The Afghan government hasn't always met its negotiated obligation to inform the Canadians when they transfer a detainee to another country or authority.
These and other issues will not be easy to resolve. The Canadian Forces are present in Afghanistan as foreign supporters of a sovereign government, not conquerors. And there is only so much our soldiers can do to impose their standards upon the Afghan state without crossing that line.
That said, it is clear from Justice Mactavish's judgment itself that our men and women are doing their best, and in complete earnest. It was Chief of Defence Staff General Rick Hillier who reached an agreement with the Afghan regime in 2005 that opened Afghan prison facilities to unannounced visits by the International Red Cross. Later, in 2007, the Afghan Independent Human Rights Commission was also brought in as a third-party monitor. When Amnesty International and the B.C. Civil Liberties Association (BCCLA) sued to prevent further detainee transfers in February, 2007, their original concerns were satisfied through negotiation before the suit could even be heard. And of course, the transfers were unilaterally halted altogether by the Canadian Forces in November, as we now know, after a prisoner being interviewed by Canadian officials made a convincing on-the-spot case that he had been beaten in custody with knotted electrical wire and a rubber hose.
Judge Mactavish -- and whoever else hears such cases going forward -- should realize that Kandahar is not Kitchener; and it is ridiculous to think that the residents of both places should be able to avail themselves of the same Charter rights and due process.
The Canadian Forces' Afghan mission is taking place within a large grey area; our soldiers there are not policemen, not invaders, not mercenaries, not even "peacekeepers" as the term is traditionally understood. It would be easier if there were better historic guidelines for an armed force trying to do the job our men and women are doing. But we don't even quite have a proper English word for the job itself. Under the circumstances, we should be proud simply that our representatives have, at every turn, acted seriously on civil-libertarian criticisms from home and used their influence with the Afghan government to push legal protections for detainees ever further.
The BCCLA and Amnesty seem to believe that there is a simple solution to the detainee problem: Canada should insist on full Charter rights for captured suspects, and should either find a way to make the Afghans apply the Charter, or detain and try all our own captives using Canadian procedures. Since everyone knows this is impossible as a long-term solution, the legal suit really seems more like a means of advancing the unstated third alternative: pulling out our troops altogether and washing our hands of the imperfect Afghan regime, which may -- horror of horrors -- occasionally treat criminals and terroristic outlaws the way they were treated in Canada a few generations ago.
Applied universally, this standard of conduct would prevent us from ever taking the side of the lesser of two evils in any foreign war -- even if, as with Afghanistan, the one evil were very, very, very much less so than the other. Since devout adherence to the rule of law generally is observed only in advanced, Western-style societies, any government that was worth helping militarily, according to this traveling-Charter doctrine, probably wouldn't need the help in the first place.
In other words, the traveling-Charter doctrine would make the great be the enemy of the good. If Amnesty and the BCCLA get their way, then whole nations will be abandoned to their suffering for the sake of protecting Canadian moral purity in regard to a handful of suspects. Like so many pious defenders of human rights who have raised their voices since 9/11, these NGOs have lost the forest for the trees. It is a shame that Judge Mactavish found basis in her law books to provide them encouragement.
But they may be persuasive if the matter again comes befor the Court.
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