Colvin Affidavit

8/2/2019 Colvin Affidavit

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MILITARY POLICE COMPLAINTSCOMMISSIONIN THEMATTEROF ahearing eforeheMilitarypoliceComplaints ommissionMPCC), ursuanto subsection250.8(1 of theNationalDefencect ,R.S.C.985, .N-5,asamended,n connectionwith a complaint ndersection250.18f theNationalDefencect ,R.S.C. 985, .N-5,asamended.

AFFIDAVITI, Richard JamesColvin, of the CitylTerritoryof Washington,District of Columbia,MAKE OATH AND SAY AS FOLLOWS:

l. I have been servedwith a summons to attendas a witness herein and I haveperson4lknowledgeof the mattershereinafterdeposedo, excJpt *ni." itit"a to Le baseduponinformation or belief.2. The summons equiresme to give evidenceat theMPCChearings nd o produce anyrelevantdocumentsor other things under [my] control." Pursuant o the srurunons, am required oproduce"documentsor other hings", including all calendars ndagandas,"all personal otesandnotebooks,"and"all relevantmemoranda,eports, ite visit reports rom visits odetentionfacilities in Afghanistan,and ollow-up reportson same" or theperiodApril 2006 o June12,2008.3. On thefaceof thesurrunonss a warning that ailure o attendandgive evidenceat thehearing,or to produce herequired hings and documents, an ead o liability and mprisonmentof aterm of not morethansix months.4. [n the letter of Alain Pr6fontainedated July 28,2009 addressedo me and numerousotherwitnessesservedwith a subpoena, was providedwith reassurancehat the GovemmentofCanadas "cooperatingwith the Commission o the fullestextentpossible n accordance ithits mandate." n the letter, all summonedwitnesseswsre urged to seek egal representation,which I havedone.5. I wasposted n Afghanistan rom the endof April 2006until thebeginningof October 2007,first in Kandaharand henKabul. Detailsof my roleswhile in Afghanistanareprovidedbelow,but duringthe l7-monthperiodof myposting,I spent onsiderableime on thedetaineeile,andsentmany eports n detainee-relatedssueso Canadian fficials. I haven my possessionthreesetsof documents rom that time.6. The first setof documents onsistsoftwo files containingmy "Diary," which consists fevery


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formal diplomatic report hat sent rom Kabul. While it ispossible hata few reportswerenotprinted andplaced n these iles, I believe hat the files aresubstantiallycomplete. However,the"Diary" coversonly Kabul. These iles do not containanyofthe reports hat sent romtheProvincial ReconstructionTeam (,.pRT") in Kandahar.7 The secondsetof documents onsistsof two files, labelled"Detainees " and .Detainees .,'The 'Detaineesl' file consists f Canadiandiplomatic eportingon detaineessues hat Ijudged at the time was relevantor of interest,andthereforaprintedandplaced n the file. Itincludes wo reportsondetainees,itled "KANDH-0029" and"KANDH- 0032,,,hat authoredin the courseof my dutieswhile posted n Kandaharand sentfrom the pRT. Detailsof thedistribution of eachsuchreport areprovided below. To my recollection, heseare theonlydetainee-relatedeports hat sent rom Kandaharduringmytwo months here.The .Detainees2' ftle containsotherreports, rom non-DFAIT sources,hat I found of sufficient nterestandrelevanceduring my postingto Kabul to warrant filing. As therewas considerable verlapbetweenhe Detaineesl' file and he Diary,' I havecomparedhe wo andpurgedduplicates.

8. The third set of documentss five black,hard-bound 5 notebooks,whichcontainmy hand-written notes rom meetingsduringmyposting in Afghanistan.Therearealsosomeadditionalnotes,written on loosepaper. Thesenotescover my entire period in Afghanistan,both inKandaharand Kabul. There are probably someadditional notes that I dt not have in mypossession-During ameetingheldSeptember1 , 2009with legalcounsel or the Departmentof Justiceand theMPCC, I advised heMPCC thatany nformation on detaineeshail judgedimportant would havebeen ncluded in the reportingthat I sent from Afghanistan,and hattherewas likely nothingof significance n thenotes hat s not in my reports MPCC thereforeagreed hat it did not require he notebooks. I do not have any calendarsor agendasn mypossession.9' Since Apnl 1994' I havebeena career oreign-serviceofficer of the Governmentof Canada,employed by the Departmentof Foreign Affairs and lntemational Trade (.,DFAIT,'). Allforeign-serviceofficers at DFAIT are either political or tradeofficers. I am in the politicalstream. While ordinarily resident n Ottawa,Ontario, presentlyserveasDeputyHeadof theIntelligenceLiaison office at the canadian embassyn washington, D.c.10. While postedoverseas s diplomats,political officershave wo core functions:a) ,state-to-state' interactions/ transactionswith the host government, or example to deliver officialCanadianmessaginga 'demarche');andb) reportingon issueshat are elevanto Canada,sinterests n that country. A reportcould describea meetingwith an mportantcontactor a visitwithin themission's territory,ofFerananalysisofpolitical, economicor securitydevelopments,and'/or recorrunendaction by DFAIT Headquarters "HQ"). The reporting generated ypoliticalofficersoutsideof Canadas sent o HQ, otherCanadian iplornaticmissions broai,andother governmentdepartments.I l ' In order o be in a position o produceeffectiveandmeaningfulpolitical reporting, olitical


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officers are equired o cultivateandmaintaina widenetworkofcontacts. n Afghanistan, uchcontactswould includeGovemmentof Afghanistan "GoA") officials; diplomats from otherembassies; representativesof the United Nations Assistance Mission in Afghanistan("LINAMA') andNATO's IntemationalSecurityAssistance orce ("ISAF"); journalists;anployees of non-govemmental rganizations "NGOs"); businesspeople; arliamentariansandpoliticians; andsoon. While in Afghanistan, cultivatedandmaintained ucha networkofcontacts.

12. During my time in Afghanistanbetween ate April 2006and earlyOctober 2007,Canadianforeign-serviceofficers n Afghanistanwerestationedn oneof three ocations:The Canadianembassyn Kabul; the PRT in Kandaharcity; or Kandaharairfield (.,KAF";.13. My first position in AfghanistanwasPolitical Director at the PRT. I served n that role fromroughly April 28, 2006until roughly June30, 2006. Afghanistan s currently coveredby 26PRTs, each led by one foreign goverrunent,but often including representativesof other

govenunents. PRTswere developedby the US in 2003asa way to bring togethermilitary,diplomatic anddevelopment ctors o assistn stabilizingand econstructingheprovinc.r. tttlate 2005,Canada eplaced heUS as he leadnation for the PRT in Kandahar. It is our onlyPRT. Kandahars generallyconsideredhemost mportantprovince n Afghanistan arguably,evenmore critical to stabilizationof thecountry han s thecapital,Kabul. It is alsoconsideredthebirthplaceofthe Taliban. Kandahars in southernAfghanistanin azonewheremountainsgive way to the southerndesert. The KandaharPRT is a Canadian-lednstitution, andtheprincipal 'whole-of-govemment'platform for the province. 'Whole of government,'alsoknown as 3D' (diplomacy, evelopment nd.defence),s aconcept sedby countries uchasthe US, Canadaand UK, especially n the context of failing rtut"r. it is basedon therecognitionthat addressingheneedsof failing states equires heuseof the full rangeof stateinstruments, ncludingdevelopmentandhumanitarian ssistance,iplomacy,security,military,justice and financial tools. The KandaharPRT is insideKandaharcity, in a converted ruit-canningplant that sheavily fortified. In theApril-July 2006 period,whenI wasresidentat hePRT, it housed epresentativesrom DFAIT and CIDA (oneofificereach),Canadiancivilianpolice (five officers)and heCanadianForces roughly 100soldiers).CanadianMilitarvpolicewere basedat KAF.14. KAF is located n thedesertoutsideKandahar ity, abouta 30 minutedrive from the pRT.KAF has a functioning airfield as well as a vast, multinational base. ln 200617.t housedroughly 7000 soldiers, rom Canad4 the UK, US, Australia, the Netherlands,Romaniaandother ISAF contributing nations, as well as some civilian governmentoffrcials, and manycivilian contractors. Supplies eachKAF overlandvia convoys rom Pakistan. Troops andother personnelgenerally ly in to Kandaharairfield from Kabul or other locatrons.15. In theApril-July 2006period, herewasoneDFAIT officer,Pamelasfeld,at KAF. Shewasthe Political Advisorto theCanadian ommander,Brigadier-GeneralDavid Fraser.Ms. Isfeldworked for, reported o,andcouldbetaskedbyboth BGen.FraserandDFAIT He. Shewould


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alsodraft and send eportson developmentsn Kandahar rom a KAF perspective.l6' KAF was the main base or Task ForceAfghanistan, he canadian military deployment oAfghanistan' KAF housedvariousTaskForceAfghanistanstructures,ncluding theNationalCommandElement the brain'), theNationalSupportElement the .stomach,,i.e. ogistics)andTaskForceorion, thecanadianbattlegoup (ihe pointy end). In April 2006,Iwent romKabul to the PRT via KAF. I wentto KAF twice in Mayl June2006,or -y way to and rom a4-day eave,and Ieft Kandaharvia KAF in earlyJuly zoae oneachvisit, I met with Canadianofficials and officers. BetweenAugust 2006andoctober2007,while posted n Kabul, I wentto KAF many times on official visits. I also dealt frequentlywith officials at I(AF throughemailor over thephone - usually,but not always, hePoliticalAdvisor (theDAIT officeratKAF).

I 7' BGen' Fraserwas, n military parlance,double-hatted.'FromFebruary2006tooctober2006,he commandedboth Task ForceAfghanistanand ISAF's RegionalCommand South (..RC-south")' command of RC-South otatedamongCanad4 heUK and heNetherlands,who atthe time were the major troop-contributingnations o southernAfghanistan. The RC-Southmultinational commandwascalledCombinedTaskForceAegis. At first, both BGen.Fraserandhis commandwereunder heUS-ledoperation EnduringFreedom,which was primarily acountsr-terrorismmission. on 31 July,2oo6,as part or tsar' 'phasethree' expansionosouthemAfghanistan, ommandof RC-southpassedo ISAF.

l8' As an expeditionarymission, Task ForceAfghanistanreported o canadian ExpeditionaryForcesCommand "CEFCOM"), whichwasestablished- in militaryparlance,.stoodp, -- onI February,2006' For the entiretyof myposting in Afghanistan,CEFCoM was commandedby Lieutenant-GeneralMichel Gauthier.LGen.bu,rtnil..ported to chiefofthe DefenceStaffGen.Rick Hillier.l9' Until January2006,thereweretwo DFAIT political officersat the pRT. On January15, hethen Political Director, Glyn Berry, *ur kill"d by a vehicle-bornemprovisedExplosiveDevice' His deputywason leaveat he ime andnever eturned o Kandahar.For around hreemonths,while DFAIT reviewedsecurityprotocols, herewasno DFAIT officer at thepRT. Itis my understandinghat he first replacement t thePRTfollowing Mr. Berrlr,sdeatharrivednKandahar n March or April 2006-He spentaboutoneweekat hepRr. ue was bllowedbyasecondofficer, in April 2006,who wasdeployed or about wo weeks. I wasthe first longer-term Political Director to replaceMr. Berry. I arrivedat the pRT at the endof April, 2006.

20' As anycanadiandiplomatpostedo anyof canada'smissions broad, had ransactionalndreporting esponsibilitiesat thePRT. For example, represented anadawith Afi{ran of;ficialsandother nterlocutors, ncluding atpublic ",n"nt, suchas he aunchofprojects fundedbythecanadian nternationalDevelopment gency ("CIDA"). I wasulro ."rponsible br reportingon any issue hat in my judgment was relevant to the Canadianmission. This included theusualDFAIT mandatesof political, securityandhuman-rights eporting. Given thenatureof


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the'whole-of-government' effort in Kandahar,with CIDA, theCanadianForcesandcivilian-police officers working alongsideDFAIT, I was also required to focus on developmentactivities, issuesrelated to the Afghan and Canadianmiliiaries, and policing issues. Thedetaineessueencompassedoth thehuman-rights ndmilitary/securitydomains, ndwasalsovery relevant o Canada. t thusclearly ell within thescopeof DFAIT's mandateat thepRT.21' In the Governmentof Canadasystem,DFAIT has the role and obligation to provideinformation,reportingandadviceonhuman-rights oncems,ncludinghuman-nghts ssues stheyrelate o detainees.For example,DFAIT potiticat officersatembassiesre esponsibleorproducing the arurualHuman fughts Report or eachcountryof the world. This is a major,authoritativeproduct that summarizesDFAIT's human-rightsanalysis or that country,andwhich all of the Canadiangovemmentrelies upon. The annual human-rights report issupplemented y information on humanrights obtained n ongoingmeetings, eportingandotheractivities throughout hecourseof theyearby DFAIT politicaioffi"".r. ln Kandahar,astheDFAIT representativet hePRT, t wasmy specificduty o gather uch nformationand o

send t throughchannelso the full rangeof recipients,ncludingDND andCEFCoM. In thedivisionof responsibilityamongCanadian olr"--"nt departments, FAIT has he eadonhuman ights,and s specifically askedwith providing reportingon human ights for theentiregovernment' other govemmentdeparhnents, uchasDND and heprovost-MarshallwithinDND, would be entitled o rely on DFAIT for such eporting,and or the purposesof this flowof information, there s no separation etweenDFAIi andDND. on humanrights andotherissues, ariousagencieswithin governmentorm a coherentwhole,with DFAIT mandatedoinform thegovernment n its entirety, ncludingcEFCoM, theprovost-Marshal(who ispartofCEFCOM andfalls within its directchainof command),and heMilitary police (who report otheProvost-Marshal). As detailedbelow,cEFCoM Cq in ottawa was n regularanddirecttwo-waycommunicationwith theprovost-MarshalandMilitary police.22' .WhenI arrivedat thePRT, already new hat would bestarting l2-monthposting n July/August2006asheadof thepolitical sectionn Kabul,and hat wouldonly work at thepRTfor two months on a"TemporaryDuty''assignment).My intentionn offeringmy services tthe PRT in late spring 2006 was to betterunderstand he 'whole-of-government,Canadianeffort in Kandaharaspreparation or my eventualposting n Kabul.23' on arrivingat the PRT, I was mmediately truckby the enormityof thechallenge acedbyCanada'sdiplomatic, developmentand military "rfort in stabilizing and reconstructingKandahar' For example, argeTalibanformationsweremassingat thetime outsideKandaharcity' Aside from the military threatpresented y the insurgency, soonbecameawareof anumberofwhat in my udgmentwereproblemsn Canadian olicyand/or practice,ncludingregardingAfghan detainees.Specifically,within a month of uoiuing at the pRT, I becameawareofprocedural concernsegarding he ransferof Afghansdetaini by canadianMilitaryPolice "MPs") to Afghanauthorities, ndalsosubstantiv! oncems bout he reatment f thedetaineesollowing their transfer. Judgrng heseproblans regardingAfghan detaineeso beserious,mminentandalarming, made nvestigati,onsnddetailedn-y niing, formally nmy


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reporting from the PRT.24. Inthe penodApril 2006 o October2007,DFAIT used wo computernetworks,SIGNETandC4, to link HQ with DFAIT staff in diplomatic missionsaroundthe world. SIGNET was

consideredan insecurenetwork. It was intendedfor ernailsand reporting that was eitherunclassified or 'Protected' (the lowest level of classification). It also offered an internetconnection. C4 was considereda secure network. It was the primary mechanism ordistribution of diplomaticreporting. It is myunderstandinghat everyCanadianembassy nddiplomatic mission aroundthe world had C4 connectivity. In addition, C4 terminalswerelocated n a numberof othergovemmentdepartments,ncluding the Departmentof NationalDefence. In April-July 2006, herewere two C4 terminals n Kandahar.One wason my deskat the PRT. The other wason thedeskof the Political Advisor at KAF.25. Every diplomaticreport senton C4 had a tag identifoing he originator(e.g.KANDH-), aunique number(e.g. (ANDH-0029), and a distribution ist that showedwho had receivedhe

message.Within DFAIT, C4messagesouldbesent o individuals, uchas SMITH Joe-IDR-C4'; to everyone n a division, such as 'EXTOTT -IDR -{,4' (the division at DFAITresponsibleor detainees);nd o embassiesbroad, uchas KABUL -GR-C4R' (thepoliticalsection n the embassyn Kabul). There werehundredsof C4 addresses ithin DFAIT.26. With othergovernment epartments,he main constraintwas henumberof"mailboxes."ForCIDA, there was only one C4 addressor the entiredepartment'CIDA -C4R'). For theDepartment f NationalDefbnce,n2Oo6l7, herewereperhaps neor two dozen.Therewasno C4 mailbox specificallyor theProvost-Marshalr Military Police.Therewasonly oneC4mailbox for KAF: 'KANDH -KAF -C4R.' This was heelectronicmailbox for thePoliticalAdvisor at KAF, andall messageso that mailbox wereopened nly by her. Similarly, here

wasone C4 addressor the PRT: 'KANDH {4R.' Thiswas or the PoliticalDirectorof thePRT, and all messageso,thataddress ereopened y him. The methodologyor distributionwas hereforeow-tech:ThePoliticalDirectorat hePRT,or PoliticalAdvisor atKAF, wouldprint up the reportandhand-carry t to relevantoflicials.27 On May 16, 2006a Canadian elegation isitedSarpoza rison, he main ail in Kandahar,which was run by theAfghan Ministry of Interior. Thedelegationconsistedof officials fromOttawa and officials from the PRT. I alsoparticipated.Sarpoza ontainedboth criminalsand'security' detainees,ncluding detaineesransferred o Afghan authoritiesafter detentionbyCanadianMPs. Following thatvisit, I took appropriate teps o investigate he conditions orAfghan detainees.28. Around the same ime, met with Major Erik Liebert, he deputycommander f the PRT, odiscuss eportingprotocols egardingAflhan detainees.As a result of our meeting,MajorLiebertmadesome nvestigations n such ssues nd hen eported ack o me.29 My first C4 report rom Afghanistanon detainees asentitled KANDH- O02g,"andsenton 26


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May,2006. Detailsof its distribution reprovided elow. It dealtwith issueselatedo thetransferof Afghan detainees.30. My PRT colleagueMaj. Liebertprovided nput nto the report, ncluding the wording of some

portions of the text, for which I listed him as 'consulted' in the signatureblock. (WithinDFAIT, a report is "consulted"when the authorprovidesa draft to anotherand solicits andincorporates heir comments. "Consulted" is only permitted o be usedon a reportwhen the"consultee" agreeswith its content.) KANDH-0029 reports on, nter alia, the resultsof myinvestigations on the hansfer of Afghan detainees, ncluding Maj. Liebert's informalinvestigation within KAF. KANDH-0029 included a 'comments' section and tworecornmendations.have hisreport n mypossession,nd udgethat t is relevatrto MPCC,given what I understando be its urisdiction following the FederalCourt ruling.

31. For KANDH-0029, I includedon the 'to' line the four DFAIT divisions hat I judgedmostrelevant o the detaineessue: IRP" (thepeacekeepingivision and my 'home' division);"fDR" (thedefence-relationsivision,whichhad he lead'on detainee uestions t DFAIT);..IRH -GHA" (thehuman-rights ivision);and "JLH" (a divisiondealingwith intemationallaw).

32. The our divisionson the to' line, accordingo DFAIT protocol,would be considered s he'actionaddresses' ho couldbe expectedo respondo mymessage.KANDH-0029 wasnotan 'informational' message,simply reporting on an event, but an 'action' message hatrecommendedactionsand/ or requesteda response. As a DFAIT employee, could notproperly 'task' other government departments n this way, and so it would have beeninappropriate o includepartsof othergovernmentdeparhnents n the 'to' addressine. Norcould I taskPamela sfeld, hePolitical Advisor, asshewasapeer, eportingback separatelyoIRP. However, IRP could formally taskher,ascouldotherHQ divisions'

33. Notwithstanding internal protocols on contmunication, t was very important to me thatKANDH-Q029, andsubsequentC4 messages n detainees,each he appropriatepersonnelresponsible or a) policy toward detainees,andb) the managementn the field of detaineeissues.ForKANDH-0029,I thereforencluded76 additional ddressesn the cc' line. TheseincludedCEFCOM commanderLGen.Gauthier the "CEFCOM Comd" C4 address) nd ourfunctionaldepartmentsJ2,J3,J5,J9)withinCEFCOM theC4 addresses'\IDHQ CEFCOMJ2,"'T{DHQ +CEFCOMJ3," "NDHQ +CEFCOMJ5" and'}IDHQ +CEFCOMJ9")' Myunderstanding t the ime and oday s that he Military Police all underseveralJ'branches.Also includedon the 'cc' line was "KANDH -KAF," that is, Pamela sfeld, he PoliticalAdvisor at KAF. As themilitary's chainof command n Afghanistanwas very complicated,and t was not alwaysclearwhere esponsibility or agiven ssue ay, I sentKANDH-0029 andother reportson detaineeso everypossible elevantaddress t DND, on the principle that ifonechannel or whatever easondid not work, thenanotherwould.

34. I specificallyntended or KANDH-0029, andothermessagesn detainees,o bereceived y


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four key recipients:a) Thepolicy shopatDFAIT responsibleor detainee olicy ("IDR") wtderADM Colleen Swords;b) The seniormilitary chain of command,both in Ottawa(CEFCOMunder LGen. Gauthier)andKandahar TaskForceAfghanistanunderBGen. Fraser),whohadoverall responsibility for managementof detainees;c) The officials in National DefenceHeadquarters pecifically responsible or detainees; nd d) The officials at KAF specificallyresponsible or detainees.To reachall theseaddressees,used heprotocolsandmechanismsthat thegovernment'sconfidentialcommunication ystem,C4,provided o me to communicateto them.

35. Firstly, I specifically intended hat the messageeach DR. I thereforeput IDR as one of the'action addressees' n the C4 message,which ensuredt would not only be receivedand ead,but should be actedon. IDR was the DFAIT division responsible or interfacingwith theDeparhnentof National Defence. As partofthis mandate,officials from IDR talkedandmetregularly -- probably every day -- with DND. IDR also dealtwith issuesof concem o bothdepartments, uch as BallisticMissile Defence,Canada-US efence elationsand Canadianmilitary deploymentsoverseas,ncluding in Afghanistan. (I hadworked for IDR in 2001and2002, and huswas very familiar with the divisionand he nahre of its interactionswith DND).As partof this 'defencerelations'mandate,DR had he lead' in DFAIT on detaineessues.

36. Secondly, specifically ntended hat KANDH-0029 reachthe military chain of command. Iaimed to achieve his objectiveby using two channels.First, by sending he report to IDR, Icould be confident that IDR would raise the issueswith NDHQ, asper standardprocedure.Second, I copied relevantNDHQ addressees irectly. As noted above, this included theCEFCOM commander LGen. Michel Gauthierand the relevant functional directorates nCEFCOM: J2, J3, J5 andJ9. (Each J" directorates led by a seniorofficer or civilian and sresponsible or a particular reaof military capability. J2' is intelligence. J3' is operations.'J5' is planning. 'J9' is policy and egal.) Additionally, n the text of KANDH-0029 is adistribution request, "J9 - pls pass to Rebenchuk." Kim Rebenchuk seemed o be theappropriatepoint of contacton detaineeswithin J9, which within CEFCOM seernedohavealeading role on detainee-related atters; corresponded ith him/ her separately n detainee-relatedquestions,and have some of this correspondencen my possession.37. I note hat the Department f NationalDefences vast l 10,000 mployees), ighly complexand geographically diffuse. For the Afghanistanmission, there are at least four relevantmilitary commandnodes:NDHQ in the GeorgeR. Pearkes uilding in downtown Ottawa;CEFCOM on StartopRoad n eastemOttawa;TaskForceAfghanistan, ased n KAF, butoperatingacrossKandahar,with elementsn Kabulandsometimes therAfghanprovinces; ndISAF, headquartered n Kabul, with contributions rom 38 countries,and reportingback oBrunssomand Brussels. Within each, herearenine J' departments, lus aprofusionof othercommand,operational, ntelligenceand ogisticselements, plit among hreeservicesarmy,air

force and navy). During my time in Afijranistan, commentsmade by military officials inverbal and written communications to me suggested hat at the time, even professionalCanadian fficers were sometimes onfused bout ines of responsibility.


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38. I sentKANDH-0029 to LGen.Gauthier or two reasons.First,asCEFCOM commander,ehad overall responsibility or the Canadianmilitary deployment o Afghanistan. Second, epresentedhimself both intemally within government,and extemally to the public, as theauthority n the CanadianForceson detaineessues.For example, n an article published29May2006 nthe GlobeandMailentitled,'TroopsToldGenevaRulesDon'tApplytoTaliban,'by PaulKoring, LGen. Gauthierprovidesan apparentlyauthoritativestatementon Canadianpolicy towarddetainees.The articlesuggestshatLGen.Gauthierconsidered imself to haveresponsibility orAfghan detaineessuesn Kandahar,ncludingtheMPs, andheldhimselfoutpublicly as having such responsibility. He also held himself out as the CanadianForcesauthority on detaineemanagementn Afghanistan for Govemmentof Canada nteragencypu{poses.For example, n theperiodMay to Juneof 2007,while I was n Kabul, I participatedin severalconference allsregardingdetainees,n which LGen.Gauthierspoke rom Ottawaasthe CanadianForces'anpoweredand authoritative epresentative n the subject. I hadgoodreason o believe hathe had urisdiction within theCanadiangovernment o managedetaineeissues,and indeed there was no other government official or organization that claimedjurisdiction over detaineemanagementn Afghanistan,exceptarguablyLGen. Gauthier'ssuperior,Gen. Hillier. I note that the CanadianMPs were underTask ForceAfghanistan,which fell under CEFCOM, which LGen. Gauthierheaded.39. Thirdly, I specifically intended hat KANDH-0029 be delivered o the seniorCanadian ieldcommander n Afghanistan,BGen.Fraser,and his key staff. To ensure his happened, askForceAfghanistan'ssenior eaderswere dentifiedby name n a"distribution ine" that placedwithin the ext of I(ANDH -0029, A "distribution ine" is textplacedwithin thebody of a C4message,suallyat heverybeginning,o indicatespecific ndividuals o whom heyshould ehanded. The "distribution line" thus servesas a "to" or "cc" firnction for Canadianofficialswho do not have heirown C4mailboxor accesso same.)For KANDH-O}zg,thepurpose fincluding he distribution ine was o ensure hatPamelasfeldwoulddeliver hereport o theofficials namedon the distribution ine. Becausehe subjectmatter(detainees)might notdirectly relate o their specificareaof responsibility, bsenthedistribution ine, Ms. Isfeldmight not understand he intent that those ndividuals should also receive the report. Thedistribution ine for KANDH-0029 statedhe following: "KANDH-KAF - plspass o Fraser/Putt/ BasingerlHopel Isfeld." Fraser s BGen. David Fraser. 'Putt' is Colonel Putt, heCanadiandeputycommanderunderBGen. Fraser,who hadday-to-day esponsibility or themanagementof Task Force Afghanistan. 'Basinger' is Derrick Basinger, Task ForceAfghanistan'schief of staff underCol. Putt. 'Hope' is Lieutenant-Colonelan Hope, he

commanderof the Canadianbattlegoup, Task ForceOrion. (ln practice,mostdetaineesakenby Canadian orceswould probablyhavebeendetained n operations onductedby TaskForceOrion). 'Isfeld' is Pamela sfeld.40. Fourthly, I specifically intended or KANDH-0029 to be receivedby the key officials atKAFwho were esponsibleor detaineemanagement.Fromconversations ith Major Liebertandothers, understoodhat thesewere he Provost-Marshal, ho was n chargeof theMilitary


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Police,andalso hemilitaryand/or civilian egaladvisors"LEGAD5,'or,.JAGs,,),whowereresponsible or legalaspects f detaineemanagement. intended or reporting on detainees,including KANDH-O029,toreach heseofficials through wo charmels. irst, Ms. Isfeldwouldphysically print the report andhand-carry t to them, as per her DFAIT mandateat KAF todistribute C4 reporting to Canadianofificials at KAF reievant to the subjectmatter of thatreport. Second, he reportingwould be passeddown the military chain tf command romNDHQ, via CEFCOM commander Gen.Gauthierand/or CEFCOM-J9 (whichhadapparentprincipal responsibility or detaineessues).41. I receivedboth verbal andwritten confirmation that KANDH-O029, in accordancewith myintention,reached heProvost-Marshal.As to verbalconfirmation hatmyreport had reachedthe Provost-Marshal, followed up with Ms. Isfeld, with whom I spoke requentlyduring hecourseofmyduties in Kandahar, ndwith whom I hadseveraldiscussions ndetainee-relatedissues. Ms. Isfeld confirmed o me thatshehadreviewedanddiscussedKANDH-O029 withthe Provost-Marshal. havea clear ecollectionof that discussion,ncluding someof thecontent,as t was very mportant o me to ensure hat theProvost-Marshalwas fully awareofthe contentsof the report. As describedearlier,protocol would preventme fiom tasking heProvost-Marshaldirectly with a responseo KANDH -0029,tuiUy providing a copy to Ms.Isfeldand ollowing up with her, couldensurehatdelivery o theprovost-Marshalwasmade,all of which in factoccurred.

42. As to written confirmation hatmy report,KANDH-0029, hadbeendiscussed ith theprovost-Marshal,suchconfirmation ook place n the esponseromDFAIT to thatreport, heir,,IDR-0512,"sentJune2, 2006. Withoutdir,ulgrngany of the contentof IDR-0512, the esponseidentifies Provost-MarshalMajor JamesFraseras he Canadianpoint of contact or relevantthird parties on detaineematters. The signature ine provides confirmation that DFAITconsultedwidely in makingtheresponse,nd hatsuchconsultationnvolvedCEFCOM,whichasnotedabovewasresponsibleor theCanadianmilitary deploymentoAfghanistan,ncludingthe work of CanadianMilitary Police n Kandahar.Otherdetailedcontentn thebodyof IDR-0512 could only havebeen providedby KAF, as thereare referenceso phonecalls andconversationsbetween elevant hird partiesandofficials at KAF responsible or detainees.43. Through my verbalcommunicationswith Ms. Isfeld andwritten correspondence ith IDR, Iwas thus able to confirm that the C4 distribution chain I haddevisedon detarneessueswassuccessfuln ensuringproperdistributionof myreporting, and hatKANDH-O12g,the reporton this urgent and seriousmatter,hadreached he appropriate ecipients. I canthusconfirmthat my reportingon detaineessues,hrougha combinaiionof a) ion-cppcoM andb) thePRT-KAF channel, eachedheProvost-MarshalndMilitary policein Kandahar.44. on June ,2006 -- thesameday hat DR replied o KANDH -o0zgwith its IDR-0512 - I sentfrom the PRT asecondC4 report, KANDH- 0032." This dealtwith two issues,oneof whichconcernedhe risk oftorfure and/or actual ortureof Afghandetainees. hesignature lock forKANDH-0032 shows hat t was consulted'withboth Maj. LiebertandSupenitendentMartin,


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the headof the civilian police unit at the PRT, and that it therefore epresented consensusPRT 'whole-of-govemment'view. (The ourth Canadian overnment ^epartmartrepresentedat thePRT, CIDA, hadno involvementon detaineematters.) I used hesamedistribution istfor KANDH-}132 as I had for KANDH-}}}}, plus a few more addresses.The c.c. Iineincluded he CEFCOM -COMD' mailbox or LGen.Gauthier,hemailboxes or CEFCoM J2,J3, J5 and J9, and the mailbox for Pamela sfeld at KAF. I have KANDH-0 032 n mypossessionnd udge it to be relevant o theMPCC andwithin its urisdiction.45' The sectionofKANDH -0032thatdealtwith therisk oftorture and/or actual ortureofAfghandetaineesransferredby canadawasbasedon a sourceor sourceshat I assessed t thetime,and assess oday, as highly credible. ln general,during my 17 months in Afghanistan,Iobtained nformation ondetaineessuesrom awiderangeofsources.This ncludeddiplomatsfrom otherembassies, Gos, officials from trNAMA, militaryofficers atISAF, human-rightsorganizations' ournalists and intelligence sources. It wouid be normal, appropnateandnecessaryor me in the context o rely on suchsourcesn thecourseof my duties. All thisinformationwasprovidedon a confidential asis, nd hespecific ources*rro, bedisclosedin anAffidavit. As describedater, alsoobtained irst-hand eportsof tortureand personallysaw evidenceof injuries related o torturesufferedby detainees.

46' DFAIT diplomatic reporting ypically openswith a one-paragraphummary. ln the summaryfor KANDH-0032,I alerted he readerto a judgment that thelnformation contained n therepoft relating to the treatment of detaineeswas of particular importance for Canada nKandahar' To ensure hat his critical messagewasnot overlooked,unusually tor aC4reportaddedat the end of the report an additional Conclusions'section,*trich reiterated heimportanceof the issue o Canada.In otherwords, I highlightedthe substance ndalso heimportanceof the ssueat thebeginningof thereport;spelledout the ssue n detail in the extof the report; and thenagainhighlightedthe substance nd mportanceat the end.47' KANDH-0032 would have ollowed thesamedistributionchannels s heearlier eport a)upto [DR, across o CEFCoM, and hendown to appropriateaddressees ithin KAF, while alsob) travellingsideways, rom thePRT to KAF, *tt.r" it would reachappropriate fficialsvia thePoliticalAdvisordistributionchannel. n the inal section fKANDi{- orilz,entitled Follow-up,' I noted hat, hroughMs- Isfeld, I hadalreadymadecontactwith thecanadianForces,egaladvisor at KAF, Lieutenant-ColonelRandy Smith, to ensure hat action was taken on theconcerns aised n the report.

48' I left thePRT at the veryendofJune 2006. After amonth n canada, returned o Afghanistanin earlyAugust, 2006, his time to Kabul as headof thepolitical sectionandde factl DeputyHeadof Mission. [n those apacities,was esponsibleor all Canadian olicy files -- andanyissues hat I judged relevant o Canada - acrossAfghanistan,especially s they related ocanada'sengagementn Kandahar. n the absencror u dedicated oliticavmilitary-issuesofficer at the ernbassy' alsodirectlyhandledsecurity,military and ntelligence iles. Thisincluded detainee issues, which across ISAF embassieswould be categorizeda


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political/military responsibilify. alsosupervised atherineBloodworth,a DFAIT politicalofficer who handled hree iles at heembassy:Humanrights, usticeandcounter-narcotics.nthat capacity, or example, signedoff on (andaddedadditional ext to) the embassy's2006humanrights report, hebulk of which was draftedby Ms. Bloodworth.49.ln Kabul, the first report senton detaineessueswas areportof 28August,2006. It did nothave a number, but was signedand sentby me as charg6d'affaires- in other words, in theambassador'sabsence,as acting head of mission and thus the most senior Canadian nAfghanistan. It dealtwith procedural ssueson detainees, uchas notification, and includedrequestsand recommendationso address uchprocedural ssues.As this 28 August messagewas nformal in toneandstyle for example, t hadno C4reference umber),andalso epliedloanearlier, nformal CEFCOM-J9message n adetainee-relatedssue, includedCEFCOM-Jgon the 'to' line, aswell asadditionalotheraddresses. have n my possessionhat chainofmessages, hich started nAugust21,2006andconcludedn l9 Septernber,006and udge trelevantasper heMPCC criterion. n thischainof communications, EFCOM-J9prlsenteditself to DFAIT as a) the CEFCOM 'lead' for detaineessues, swell as b) a functioningchannel or raising questions oming rom TaskForceAfghanistan elated o detainees,whiciin practicemust havemeant he Provost-Marshal nd Military Police. I note that in itsresponses' EFCOM-J9cc'dCEFCOM-J3.ThissuggestshatCEFCOM J3 operations)lsohadresponsibilitieswithin CEFCOM for detaineematters.As noted n paragraph39, above,twould probablybe during operationshat suspectednsurgentswereactuallydetained.

50. On Septanber19,2006,aftermeetingwith two highlycredible ourcesn Kabul, I senta C4messageollowing up on themore informal 28 Augustmessage.This was a more formalmessage ndwasaccordingly ssigned number, KBGR-OI18." ('KBGR' signified eportsoriginating from the Canadianembassy n Kabul. Only formal reports were assignedanumber.) KBGR-OI18wassent o IDR as hesole actionaddressee.'in it, I communicateddetailedanddirectedconcerns xpressed ythosesourcesegardingcurrentCanadianpracticeon detaineenotificationsand ransfer.Thereportmade eferenceo both proceduralssues ndsubstantiveconcerns egarding reatmentof Afghan detainees.Becausehis reportwasverydirect andcritical of Canadian ractices, removedNationalDefenceHeadquartersNDHe)andotherCanadian orces ddressesffthe C4 distribution ist, imiting t to bnRn addressesonly. However, asnoted above t was sent to IDR, which had the DFAIT lead on detaineeissues,with the explicitrequesthat DR follow up with NDHe. FollowingestablishedDR-NDHQ channels, heseconcemswould have been passeddown the NDHe chain to theProvost-Marshal ndMilitary policein the field.51. Nine days ater,on September 8, 2006, ollowing a meetingwith a third interlocutor,andhaving eceived o responseoKBGR-OI18, senta follow-up eport,.KBGR-6121,,,tothesameDFAIT addressees,ncludingIDR. This reportdealtwithprocedural ssues nly, but wasevenmoredirectincontentthanwasKBGR-OI18.IhavebothKBGR-OIlgandKGBR-0121in mypossession nd udge hem oberelevanto MPCC. FollowingestablishedDR-NDHechannels, heseconcemswould havebeenpasseddown the NDHe chain to the provost-


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MarshalandMilitary policein thefield.52' on December 20061sentanothereport, KBGR-0160,"ondetaineeolicy ssues,ncludingconcemsabout treatmentof detainees.That report was sent o IDR, cc,ing 45 addressees,including CEFCOM-J9and KAF. I havethat report n my por."rrion and udge it to berelevantasper MPCC's criterion. Following estabilshedDR-NDHe channels, lus theKAFand CEFCOM-J91ou!es, the report would have been passed o the provost-MarshalandMilitary Police n the ield.

53 At the end of December 2006or in January2007 the embassy ubmitted ts annualhumanrightsreport' It deals n partwith detainees. do not have t in -y possession,ndcannotprovide commentson the distribution ist, but recall someof its content(I wrote parts;partswere published n theGlobeandMait) and udge it to be relevant o Mpcc.54' rn approximatelyMarch 2007,duringavisit to Ottawa, participatedn an nteragencymeetingon detainees' During that meeting, I spokevery diieitly to the issueof the treatmentofdetainees y Afghan authorities. e cgr-cov-J9-representative was presentat thatmeeting,and ooknotes'At onesigruficant oint n -y "o--"nts, I observed erputdownherpenandceaseaking notes..IDR also ook part in thatmeeting,asdid representativesrom a rangeofothergovemmentdepartments.

55' on April 20, 2oo7-,l.sent C4 report, KBGR-0258,"on detainees.t dealtwith a rangeofissues, ncluding their treatment. The four DFAIT "action addressees,,ere IDR (detaineepolicy), "FTAG" (the new Afghanistan Task Force), IRH -GHA (humanrights) and JLH(intemational aw). Among the 7l addressesn the 'cc' list were CEFCOM-J9; T\iDHe+CEFCOM HQ," which seems o have replaced NDHe +CEFCOM Comd,,as the C4mailbox for CEFCoM commander LGen. Gauthier; David Mulroney, the new DFAITAssociateDeputy Minister, lnterdepartmental oordinator on Afghanisianand headof theAfghanistan askforce (FTAG); andKAF. I haveKBGR-0258 n mypossessionnd udge trelevantasper MPCC's urisdiction. Following establishedDR-NbHe channels, lustheKAF and CEFCOM routes, he report would havebeenpassedo the provost-MarshalandMilitary Police n the ield.

56' On Apf,l2l, FTAG sentme a 'DetaineeDiplomaticContingency lan,' developed y FTAGandapprovedby National security Advisoi MargaretBloodworth.57 on Apil 23, the Globeand Mail published ts investigativereportby GraemeSmith on thetreatmentof Afghan detainees,ncluding detainees ransfend from Canadiancustody. Inresponse' he Governmentof Canadaprovided instructions o me ascharge hat drew on theDetaineeDiplomaticContingency lan.'58' on Api.l 24, 2007I senta formal C4 message,KIIGR- 0261,"which I signedas charged'affaires. Two embassy officers were listed as 'consulted': philip Hannan, ourcommunicationsofficer, and CatherineBloodworth, the humanrights offir.r. KBGR-0261


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was sentasaresponseo,andcornmentary n,the DetaineeDiplomatic ContingencyPlan.' Itcontained our paragraphs.The first was apreamble; he secondand hird, analysis; he ourth,three concrete ecommendations. t was sent to the same four DFAIT action addresses sKBGR-0258.The 34'ec'addressesncluded fficialswithin DFAIT, CEFCOM-J9andKAF.I have this message n my possessionnd udge it to be relevant o MPCC. FollowingestablishedDR-NDHQ channels, lustheKAF and CEFCOM routes, hereport would havebeenpassed o the Provost-Marshal ndMilitary Police n the field.

59. On Apil25,I sent our reports n detainees,ncluding wo formal eports, KIIGR-0263" and"KBGR-0265." These eports ealtwith arangeofdetainee-relatedssues.Theywereall sentto FTAG andcc'd to a rangeof C4 addressees,ncludingDFAIT officialsandCEFCOM-J9.Following establishedDR-NDHQ channels, lus the KAF andCEFCOMroutes, hese eportswould havebeenpassedo the Provost-MarshalndMilitary Police n the ield. I have hesereports n my possessionnd udge hem elevant o MPCC.60. On April 30, 2007,1senta reporton detainees,KBGR-0267." It dealtwith bothproceduralissueson detainees ndsubstantivessueson their treatment. have n my possessionwoversionsof that report: The original,which ncludesmore nformationanda onger distributionlist, ncludingCEFCOM-J9and DR, and he inal versionapproved y thenew Ambassador,which is shorter n contentand reduced n its distribution from 75 original addresseeso 5, inaccordancewith the Ambassador'snstructions.CEFCOM-J9and DR werenot on therevisedlist, although KAF is. It is unclear f this report would havereached he Military Police or

Provost-Marshal,although t may have. I judge that it would be relevant o MPCC.61. On April 30, 2007,I sent KBGR-0269,"on proceduralssues ndalsosubstantive uestionsrelated o treatmentof detainees. t had nineaddressesn thedistribution ist, but not NDHQ

address r KAF. It is unlikely hat t reached DHQ.62. OnMay 3, 2007 sent two reports n Afghandetainees,ne dentifiedas KGBR-0271,"andone hatwas unnumbered.On May 4,2007,I sentan additionalmessage n detainees.All

threewent to IDR andKAF, so shouldhave eachedhe Provost-Marshal ndMilitary Police.haveall three eports n my possession nd udge theyarewholly or in part relevant o MPCCin accordancewith its jurisdiction.63. On May 7,2007 I sent KBGR-0274"and "KBGR-0275," which dealtwith procedural ndalsosubstantivessues elated o detainees. NGR-0214wassent o a imited distributionist,

but that ist includedKAF. It should hereforehave eached he Provost-Marshal ndCanadianMilitary Police. I have his report n my possession nd udge t relevant o MPCC. KBGR-0275had a longer distribution ist, which included he "CEFCOM HQ" address,which IbelievewasLGen.Gauthier'saddress,lusKAF. Following establishedhannels,hat eportwould havebeenpassedo the Provost-Marshal ndMilitary Police n the field. I have hatreport n my possession nd udge t relevanto MPCC asper ts mandate.


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64. On June 5 and 6, 2007,I headed he embassy eam that conducteda monitoring visit to adetention acility in Kabul and nterviewed our detainees.As a resultof this visit, I acquiredfirst-hand information about the treatmentof Afghan detaineesransferredby Canada oAfghan authoritiesn Kandahar. included his nformation n "KBGR-0291,"datedJune6,2007. Therewere en C4 addressesn the distribution ist, ncludingDFAIT officials, DR,CEFCOM-J9 and the commanderof the CanadianTask Force in Afghanistan. Followingestablished hannels,hat report would havebeenpassedo the Provost-Marshal ndMilitaryPolice n the field. I have his report n my possessionnd udge t relevant o MPCC.

65. On June9, 2007,I sent"KBGR-0292,"which dealtwith procedural ndsubstantivessuesrelated o detainees.The distribution ist includedCEFCOM-J9,DFAIT officials, IDR andKAF. Following established hannels, hat report would have beenpassed o the Provost-Marshaland Military Police n the field. I have t in my possessionnd udge it relevantoMPCC.66. On Jr .rne 1,2007,I sent "KBGR-0292," on proceduraland substantivessues elated odetainees. t was sent o only eight addressees,ut these ncluded DR and KAF. Followingestablished hannels,hat reportshouldhavebeenpassedo the Provost-Marshal nd MilitaryPolice n the field. I have hisreport n my possessionnd udge t relevant o MPCC.67 On July 17 2007, sent"KIIGR-O3 2." It dealt with a wide rimgeof issues,ncludingasectionon treatmentofdetainees. t wasdelivered o C4 addresseshat nclude he"CEFCOMHQ" mailbox (LGen. Michel Gauthier),KAF and DFAIT officials. Following establishedchannels,hat eportshouldhavebeen assedo the Provost-MarshalndMilitary Policen thefield. I have his report n my possessionnd udge it relevanto MPCC.68. Finally, on August 27 2007 I sent KBGR-0321" on detainees.t wassent o CEFCOM-J!,I(AF and a DFAIT offrcial. Following establishedchannels,hat report should havebeenpassed o the Provost-Marshaland Military Police in the field. I have this report in mypossession nd udge it relevant o MPCC.69. I make this affidavit to clarifl, issues aised n a Motion madeby legal counsel or theDepartment of Justice to set aside the sunmons issued o me by the MPCC. I make thisaffidavit specifically to correcterrorscontained n the groundswhich I understand orm thebasisof themotion madeby the Deparhnent f Justice.


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SWORN BEFOREME in CitylTerritoryofWashington, istrictof Columbiahis5thdayof October,2009.

L)))))))COMMISSIONERFOR OATHS in and orthe District of Columbia whosecommissionexpires m / t+ lZo [+

EDDIE AIiAERNOTARYuBUCISTRIOFCOTUMBIAMyCommissionxpires91142011Subscribednd wornobetorsrne, mypres8nc8,tlils 5+\ dayol ocr.,Ron_ . 2,,>o1

Colvin Affidavit

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