BLOGSPOT:
CANADA MILITARY NEWS-(Part 3) the horrific betrayal of Canadian troops whlst at war in Afghanistan- NDP/Green/Bloc - and Civil Liberties BC (who make $$$$millions off our tax dollars) - alleged torture of Afghan Terrorists transfered to Afghan authorities by Canadian troops....Amnesty Int/BCCL/betrayal- A BIG READ if interested /PART 3
--------------
BLOGSPOT:
CANADA MILITARY NEWS- (Part 2) the horrific betrayal of Canadian troops whlst at war in Afghanistan- NDP/Green/Bloc - and Civil Liberties BC (who make $$$$millions off our tax dollars) - alleged torture of Afghan Terrorists transfered to Afghan authorities by Canadian troops.... A BIG READ if interested (PART 2)
---------------
BLOGSPOT:
CANADA MILITARY NEWS- the horrific
betrayal of Canadian troops whlst at war in Afghanistan- NDP/Green/Bloc - and
Civil Liberties BC (who make $$$$millions off our tax dollars) - alleged
torture of Afghan Terrorists transfered to Afghan authorities by Canadian
troops.... A BIG READ if interested /PART 1
----------
PART IV
1 45. Q.
Operational control allows to assign tasks and
2
operational command determines how the task is carried
3
out? Is that fair?
4 A. I suppose an example is probably the best way
5
of doing it and an example of Afghanistan.
6
46. Q. Sure.
7
A. Operational command is retained by national
8
authorities and operational control is given to ISAF which
9
is the formation through which NATO is exercising the
10
conduct of the tasks in Afghanistan.
As we place our
11
forces under operational control of NATO we have come to
12
an agreement with NATO that the mission in Afghanistan is
13
congruent with Canadian aims and that NATO can assign
14
tasks to our forces in Afghanistan in the attainment of
15
that mission, however, that national command overrides
16
that and therefore the duties that are assigned to the
17
Canadian Forces ISAF personnel in Afghanistan need to
18
remain consistent with our direction, Canadian direction,
19
so therefore we always hold the ability to say no to
20
military tasks.
21
47. Q. From that I understand that Canadian Forces
22
aren't bound by ISAF
policy. In other words, Canadian
23
command could override ISAF policy?
24 A. Once we've entered into an agreement with
ISAF
25
policy we are bound by that policy.
In the execution of
17
1
mission, we'll act within that policy.
2
48. Q. I take it we would have the right to give
3
notice to ISAF that we're not following a particular
4 policy any more?
5 A. Yes, and then there would be a requirement to
6
gain a convergence again so that operating within the
7
coalition, both parties, both national interests and NATO
8
interests converge again, so it's in agreement again.
9
49. Q. With respect to the 96-hour detention policy
10
of ISAF you would agree with me that it is possible for
11
Canadian Forces to hold beyond 96 hours?
There are
12
circumstances when we've done that?
13 A. Could I just refresh myself where I said it's
14
96 hours?
15
50. Q. It's in paragraph 41. At anytime, Colonel,
16
take your time. If you want to
stop and review things,
17
that's perfectly fine.
18 A. The ISAF policy is one that is, just to give
19
the framework within which is operates, the 96 hours is
20
one that nations have agreed to as being a reasonable
21
amount of time for us to be able to determine whether to
22
release or to transfer.
23
51. Q. But it is possible in certain circumstances
24
for us to hold longer than 96 hours?
25 A. Yes, if the case is made
that there is a
18
1
requirement to do so.
2
52. Q. That determination would be made by the
3
commander of Task Force Afghanistan?
4 A. In concert with commander ISAF.
5
53. Q. You would advise ISAF but would not take
6
orders from ISAF on that issue, would he?
7 A. He would certainly take into account ISAF's
8
point of view. Just from
historical purposes we have had
9
detainees that were detained beyond the 96-hour time frame
10
but for medical reasons. One of
the main determinants of
11
when we hand over detainees to Afghan authorities is that
12
they are in good enough physical condition that this
13
transfer can be effected.
14
54. Q. Do we have any reporting obligation to ISAF
in
15 those circumstances?
16 A. We do do that reporting to ISAF through
17
regional command south and to national authorities in
18
CEFCOM. I don't know if we have
an obligation. It is
19
practised though that we do inform them that we are
20
keeping beyond 96 for the following reasons, et cetera.
21
55. Q. If I take you to Exhibit G of your affidavit,
22
you call these detainee handling deck cards or something.
23
They're ---
24 A. The slide deck.
25
56. Q. If you go to page 583, the top right corner,
19
1
at the top there's a flow chart Detainee Handling Detainee
2
Procedural Framework and I note that it flows down and in
3
the middle if you decide to detain ANSF, Afghan National
4
Security Force, is present on the object of a TFA. If
5
it's yes, there's a few things you do.
If it's no, then
6
TFA, Task Force Afghanistan, notifies CEFCOM?
7 A. Yes.
8
57. Q. Then I note in the lower right-hand corner
9
that when it comes time for us to transfer an individual
10
to Afghan government custody following detention the
11
Government of Canada notifies the ICRC.
I didn't see
12
anything in there that says that we notify ISAF.
13 A. It's not explicit there. It's certainly
14
practised though.
15
58. Q. Incidently while we're on it I also note that
16
if you go to the middle box where it's "detain" on its own
17
and then the next box says "Our Afghan National Security
18
Force is present on the objective with TFA." That's if
19
they're in the field with them, I gather?
20 A. Yes.
21
59. Q.
If that's a yes then it goes to the next box
22
where it says "Is the Afghan Security Force capable or
23
willing to take immediate possession of individual in
24
question?" That would be like
a battlefield transfer?
25 A. That's one of the examples, yes.
20
1
60. Q. If it's yes then arrange his immediate
2
transfer. In those circumstances
ICRC is not notified is
3
my understanding.
4 A. No, they are.
If we have detained them and we
5
have handed them over to ANSF, ICRC is informed of that
6
because it is a transfer of our detention to them.
7
61. Q. The way I was reading it is that if it's in
8
the field and it's so quickly after the battle there is no
9
notification of the ICRC just because I don't see any
10
arrow there to where we notify ICRC.
It's only if the
11
ANSF is not willing to detain them in the field we then
12
take them out and that's when we go through our more
13
formal detainee processing chain.
14 A. No. If
we have detained them as Canadian
15
Forces detainees and we hand them over to the ANSF, even
16
on the battlefield, we will complete the administrative
17
process through what is called the Annex F which is the
18 Notice of Transfer and ICRC will be
informed .
19
62. Q. Colonel Noonan, I read your affidavit. Would
20
you agree with me that the capacity for humane treatment
21
and detention of prisoners is a necessary corollary of
22
combat operations?
23 A. I don't understand the question.
24
63. Q. That being able to provide humane treatment
to
25
detainees is necessary if you're going to engage in combat
21
1
operations?
2 A. It's whatever has been agreed to as to the
3
process. We would have the
necessary facilities to do
4
that.
5
64. Q. What I'm suggesting to you is it's a
necessary
6
part of the mission. For example
if you're going to send
7
off a unit of 100 soldiers, you've got to have someone
8
there who can cook and by the
same token if 100 soldiers
9
are going out on a combat operation where it's expected
10
they may capture and detain an individual, it should be
11
expected that we have the capacity to hold that individual
12
in a humane manner?
13 A. To process that individual. We have to have
14
the capacity to process that individual in whatever manner
15
that that theatre of operations is mandated to do.
16
65. Q. So you have to have some provision for long-
17
term detention?
18 A. No. We
have to have provision for the
19
processing of detainees in whatever theatre that we go to.
20
In Afghanistan the provision was that we would transfer
21
our detainees to Afghan authorities within 96 hours or as
22
soon as practical.
23
66. Q. Let me put it another way. Let's say that the
24
Afghan authorities and the American authorities refused to
25
take any detainees from Canadian soldiers for whatever
22
1
reason. Then we would no longer
be able to engage in
2
combat operations, I take it?
3 MR. GRAHAM: This is a matter of speculation. *O*
4 THE WITNESS: That's the speculation part. It
5
would have an impact.
6 BY MR. CHAMP:
7
67. Q. It's important? Well, sir, let's go to your
8
affidavit then. Paragraph 29 of
your affidavit says the
9
following, "Detention is integral to the broad spectrum of
10
CF operations including combat.
Not having the option to
11
capture the enemy is not an acceptable or appropriate
12
military solution."
13 A. That's correct.
14
68. Q. You swore to that and that's true?
15 A. Yes.
16
69. Q. In other words, if we do not have the option
17
of capturing the enemy, we cannot engage in combat
18
operations, correct?
19 A. That's correct.
20
70. Q. So
if we do not have the capacity to hold
21
someone then we cannot engage in military operations?
22 A. It doesn't necessarily follow.
23
71. Q. What would we do with them?
24 A. Again it's speculation because in the theatre
25
of operations that we have agreed to conduct operations in
23
1
there is the ability to detain and a process by which we
2 transfer these detainees to the Afghan
government so we
3
have set up the necessary facilities that is required to
4
do that and assigned appropriate resources.
5
72. Q. We've been in Afghanistan now for over five
6
years, Colonel?
7 A. Off and on.
We had an initial commitment
8
under Operation Apollo. That
stopped. That was 2002 and
9
then we re-engaged in Afghanistan in 2003 under Operation
10
Athena.
11 MR. GRAHAM: There was a break of about three
12
months or so.
13 THE WITNESS: I can't remember the exact dates but
14
there was a break.
15 BY MR. CHAMP:
16
73. Q. Since January 2002 Canadian soldiers have
been
17
in Afghanistan almost the entire time with the exception
18
of a few months?
19 A. With that exception.
20
74. Q. Throughout that time have we considered
21
developing the capacity to hold detainees ourselves?
22 A. We have not had to, no, because of the
23
arrangements that have been made.
24
75. Q. We've never considered the option?
25 A. We've never had to consider the option.
24
1
76. Q. We've never discussed it?
2 A. I wouldn't be able to say that.
3
77. Q. We do have plans for building long-term
4
detention facilities, do we not, Colonel?
5 A. A plan?
6
78. Q. In Prisoner of War and Detainee Doctrine, the
7 Canadian Forces, we have plans for
building and staffing
8
and managing a prisoner of war or detainee holding
9
facility?
10 A. It's not a plan. It's an approach to
11
establishing a prisoner of war camp.
12
79. Q. It's plans if we wanted to establish one,
13
correct?
14 A. I suppose it can be characterised as a plan
to
15
establish a prisoner of war camp.
16 MR. GRAHAM: Are you referring to a document in
17
particular?
18 MR. CHAMP: Yes.
If you go to Volume II of the
19
affidavit of Yavar Hameed and you go to Exhibit Q, it's
20
the ---
21 MR. GRAHAM: I'm looking at a document entitled
22
Prisoner of War Handling Detainees and Interrogation and
23
Tactical Questioning.
24 MR. CHAMP: In International Operations, Joint
25
Doctrine Manual.
25
1 MR. GRAHAM: Yes.
2 BY MR. CHAMP:
3
80. Q. So you're familiar with that document, sir?
4 A. Not in detail but I'm familiar with it.
5
81. Q. If you go to page 3E6, it starts with a
6
chapter about the prisoners of war camp, all the
7
construction requirements set out in this annex for the PW
8
holding area and the layout of the compounds enclosures of
9
which it is made up also apply to the establishment of a
10
PW camp. The essential difference
between the holding
11
area and the camp is the permanence of the camp whereas
12 the holding area is at best a
semi-permanent facility.
13
The camp is a long-term facility implying the provision of
14
hutted accommodation, paved road, and paths and generally
15
solid construction methods for perimeter, fences, guard
16
towers, administrative offices.
17 From that passage, Colonel
Noonan, you would agree
18
with me that the Canadian Forces do have plans for
19
establishing long-term detention facilities if necessary?
20 A. For prisoners of war. Although we treat our
21
detainees humanely or in terms of humanity, to the
22
conditions of prisoners of war, they're not prisoners of
23
war.
24 82.
Q. Treatment to the standard of
prisoners of war
25
except for living accommodations?
26
1 A. No, that's not what I was saying. There's no
2 legal basis on which we take these
detainees as prisoners
3
of war. The concept of prisoners
of war is take
4
combatants out until such time as the conflict is ceased
5
and it is part of an international armed conflict.
6
Detainees, we have been given permission by a recognised
7
government to establish a security situation to assist
8
them establishing a security situation that will allow
9
reconstruction and development, and in conjunction with
10
that government and in conjunction with our partners have
11
entered into an agreement of how we are going to handle
12
the capture of threat.
13
83. Q. You're speaking about Afghanistan?
14 A. Yes.
15
84. Q. What I draw from your answer relative to my
16
question is what you are saying is that Canada cannot
17
establish a prisoner of war camp in Afghanistan because we
18
have a different relationship with the Afghanistan
19
government than if it were an international conflict?
20
It's not an international conflict therefore we can't
21
create a prisoner of war camp? Is
that what you're
22
saying?
23 A. No.
The nature of the conflict is such that
24
although we apply some principles of the prisoners of war
25
to the treatment levels of detainees, that they're not
27
1
prisoners of war. The plan that
you're alluding to here
2
is a bricks and mortar plan and doesn't provide any
3
context as to why that facility would be established, to
4
what level of security that that facility would have to be
5
manned and under what mandate that it would be
6
established.
7
85. Q. Colonel Noonan, you may want some time to
8
review this document because some of the things you're
9
saying aren't consistent with what the document is saying.
10
First of all it's not necessarily a bricks and mortar.
11
There's a few different camps here.
They have ones for
12
small if you want to hold I believe it's 20 men is the
13
first one. The next one is
200. The next one is 500 and
14
the next one 2,000. They also
have in there staffing, the
15
staffing ratios that were required for the different sized
16
of camps. Are you telling me,
Colonel, that you didn't
17
have an opportunity to review this when you testified that
18
Canada did not have the capacity to build a detainee
19
facility in Afghanistan?
20 A. No.
I'm aware of most of the contents of
21
this. These are plans that if we
went into a conflict
22
where prisoners of war were taken, these are the types of
23
things that we could do. It was a doctrinal basis on
24
which we would prosecute prisoners of war in an armed
25
conflict. It identifies the
resource requirement that
28
1
could be used in a prisoner of war.
2
86. Q. If we had to in an international conflict?
3 A. If we had to hold prisoners of war, yes.
4
87. Q. It's my understanding that soldiers and
5
military police do get training in how to establish these
6
facilities. That's true?
7 A. They do get training to some degree in that.
8
I'm not the expert on to what level they get that
9
training.
10
88. Q. Colonel, it's likely that Canadian Forces
will
11
detain individuals in Afghanistan in the future?
12 A. Under the current mission set, yes.
13
89. Q. In the next six months how many detainees do
14
you think we might capture in a ball park?
15 A. That's speculative. I don't have that number.
16
90. Q. There's not operational plan or consideration
17 of that issue of how many it might be?
18 A. No.
19
91. Q. Paragraph 52 of your affidavit you state that
20
"Due to operational security I cannot release the numbers
21
of detainees, however, I can confirm they are higher than
22
that alleged in the applicants' affidavits."
23 A. Right, which is in the past.
24
92. Q. I think we suggested that it was at least 40
25
up to April '07 and there's
probably more since then and
29
1
you're saying it's more than 40?
Is that right?
2 A. I'm trying to be helpful here. The numbers of
3
detainees since we've been in Afghanistan is more than 40.
4
93. Q. Is it less than 200?
5 MR. GRAHAM: I object to the question. *O*
6 MR. CHAMP: He's already given an estimate, Mr.
7
Graham. I'm not asking for a
specific number.
8 MR. GRAHAM: I object.
9 BY MR. CHAMP:
10
94. Q. Is it more than 1,000?
11 MR. GRAHAM: He's given his evidence. He can
12
confirm they're higher than that alleged in your
13
affidavits.
14 MR. CHAMP: You can't put in a little bit and then
15
claim privilege or national security.
16 MR. GRAHAM: I am claiming privilege. I am
17
claiming national security with respect to those figures. *O*
18 BY MR. CHAMP:
19
95. Q. Colonel Noonan, your position at CEFCOM, you
20
would get or see reports when people are detained?
21 A. I will see reports of people that are
detained
22
if I ask for them or if they are flagged to me.
23
96. Q. Colonel Noonan, there's no requirement or
24
restriction in our agreements with Afghanistan that limits
25
how long we can detain Afghanistan citizens? Is that
30
1
true?
2 A. I'm sorry.
I didn't understand.
3
97. Q. There's nothing in any of the agreements that
4
Canada has with Afghanistan that limits the duration of
5
time that we hold Afghan citizens?
6 A. The limitation that I'm aware of is the 96-
7
hour ISAF construct.
8
98. Q. I just want to ask you a bit about what you
9
might know about detention by Afghan authorities. In
10
paragraph 53 of your affidavit you say that "From March
11
2006 to the date of swearing this affidavit Canadian
12
Forces transferred increasingly to the NDS," the National
13
Directorate of Security, "as a result of increased
14
confidence in the professionalism of that organisation."
15 It's my understanding that the
majority of our
16
detainees are now transferred to the NDS?
17 A. That has been the tendency, yes.
18
99. Q. How were the other branches of the Afghan
19
National Security Forces regarded as less professional
20
than NDS?
21 A. Only on a case-by-case basis. You'll see in
22
the other parts of the affidavit where there's a couple of
23
examples where some of the other ANS forces have shown
24
instances where we weren't as comfortable and so over a
25
period of time and by the conduct of, and this is again
31
1
I've been informed by other members of the Canadian
2
Forces, that over a period of time based on their
3
impression of the conduct of the NDS personnel that they
4
interact with they've grown comfortable that the NDS had
5
the professionalism required to receive our transferred
6
detainees.
7
100. Q. Meaning there would be fewer instances with
8
the NDS?
9 A. No.
That would suppose that we knew that
10
anything was happening. Fewer,
more, less, more chance
11
of, less likelihood of, just that we were comfortable that
12
this was an organisation that we were comfortable with.
13
101. Q. You had indicated that some other forces had
14
shown instances where you were not as comfortable but I
15
gather then the NDS had fewer of such instances?
16 A. No.
Good point. The AMP, in one
instance the
17
local AMP demonstrated that they weren't -- this
18
particular element of the local AMP were not to be
19
trusted, that we would get a level of comfort that the
20
prisoners would not be, the detainees would not be abused
21
and therefore we took it back from that particular local
22
AMP. As a matter of efficiency,
as a matter of common
23
sense we developed a linkage with the NDS.
24
102. Q. This incident with the AMP, is this the
25
incident that you've described in paragraph 56 of your
32
1
affidavit?
2 A. That's correct.
3
103. Q. When did that incident occur?
4 MR. GRAHAM: We object to that question. *O*
5 MR. CHAMP: On what basis?
6 MR. GRAHAM:
On the basis of national security.
7 MR. CHAMP: It threatens Canada's national
8
security to know when the Canadian Forces observed local
9
Afghan National Police beating a detainee that they
10
transferred to that unit?
11 MR. GRAHAM: We object to any questions on this
12
incident generally. *O*
13 MR. CHAMP: But you can swear an affidavit over it
14
but I can't ask any questions? Is
that your position,
15
Counsel?
16 MR. GRAHAM: It is.
17 MR. CHAMP: I cannot ask any questions about this?
18
You can swear an affidavit to it but I cannot ask any
19
questions?
20 MR. GRAHAM: You have asked in number six for
21
documents and reports concerning that incident. You're
22
now asking for documents and reports concerning that
23
example and my position is that we object.
24 BY MR. CHAMP:
25
104. Q. Colonel Noonan, you learned of this incident
33
1
from reports I gather?
2 A. I did, yes.
3
105. Q. That's the basis of your information and
4
belief?
5 A. That's correct.
6
106. Q. Did you ever talk to any of the individual
7
Canadian Forces soldiers
involved in that incident?
8 A. No, I did not.
9
107. Q. What was the medical condition of the
10
individual?
11 MR. GRAHAM: Object. *O*
12 MR. CHAMP: On what basis?
13 MR. GRAHAM: Same basis.
Security.
14 MR. CHAMP: National security?
15 MR. GRAHAM: You're trying to get indirectly,
16
Counsel, what you can't get directly.
17 MR. CHAMP: I'm just trying to appreciate what
18
aspect of this, I guess, that if we knew the date that
19
would be some indication of when a particular combat
20
operation occurred, when we
captured someone or something
21
but right now I'm just asking what the medical condition
22
of the individual.
23 MR. GRAHAM: I'm not prepared to allow any
24
questions concerning paragraphs 55 and 56 other than the
25
information that's there.
34
1 BY MR. CHAMP:
2
108. Q. Colonel Noonan, there is a medical
examination
3
of all detainees before they are transferred, that's my
4
understanding?
5 A. That is the current practice, yes.
6
109. Q. Would there have been a medical examination
of
7 this detainee before he was transferred?
8 A. I don't know.
9
110. Q. Were there any charges against the ANP police
10
involved in this matter?
11 A. I don't know.
12
111. Q.
In paragraph 55 you describe another incident.
13
Is that the incident that was reported by CTV television
14
or is that a different incident?
15 A. I'm not sure.
16
112. Q. Are there other incidents aside from these
two
17
that you're aware of?
18 A. Incidents of?
19
113. Q. Well, similar incidents where Canadian
20
soldiers exercised their discretion to either not transfer
21
or to take back a detainee
because of concerns that the
22
detainees were at risk?
23 A. Those are the two that I am aware of.
24
114. Q. At paragraph 58 you speak about "two
detainees
25
were transferred to the NDS and then we asked that they be
35
1
returned to us for further questioning." Was that for the
2
purposes of some kind of charges or something against
3
those individuals?
4 A. It was for the purposes of gaining further
5
intelligence.
6
115. Q. In paragraphs 62 and 63 of your affidavit you
7
indicate that "Canadian Forces were not aware of any
8
specific complaints regarding treatment of detainees
9
transferred to Afghan authorities by Canada." Are you
10
aware of any general complaints?
11 MR. GRAHAM:
What do you mean by a "general
12
complaint"?
13 BY MR. CHAMP:
14
116. Q. Did individuals from either other armed
forces
15
or from organizations, international NGOs, or the Afghan
16
Independant Human Rights Commission ever say to the
17
Canadian Forces that Canadian detainees are being abused
18
or tortured?
19 A. There was -- in my understanding there was no
20
specific allegations or complaints raised by any of those
21
organizations to Canadian Forces.
22
117. Q. I'm not speaking about specific individuals.
23
Just like someone saying "That's going on" because when I
24
read "specific complaints" it sounds to me like you're
25
trying to limit it.
36
1 A. No.
There was no attempt to try and limit it.
2
As part of the overall look at Afghanistan what -- I might
3
be outside of my lanes here so -- we didn't receive
4
specific complaints and access to some of the reports, I'm
5
not sure which ones, were never specific in their
6 allegations. We didn't have -- we've never had a
7
complaint that had the specificity that allowed us to
8
investigate any further.
9
118. Q. Are you aware if Canadian detainees are being
10
segregated in some way in Afghan detention facilities?
11 A. I'm not aware.
12
119. Q. In paragraph 69 you refer to a meeting
between
13
Brigadier General Tim Grant and the Afghan National
14
Directorate of Security in Kandahar, and General Grant's
15
role there was "to facilitate access by the Commission to
16
NDS facilities"?
17 A. That was one of his aims, yes, in that
initial
18
discussion on the 25th.
19
120. Q. General Grant was successful in that, I
20
understand?
21 A. Because the following day, the 26th, he
22
facilitated the meeting between the director of the local
23
NDS and the AIHRC individual.
24
121. Q. In his role there did General Grant find out
25
how long the Commission had not had access to the NDS
37
1
facilities?
2 A. I don't know.
3
122. Q. Colonel Noonan, do you know if Canadian
4
detainees are in a number of different detention
5
facilities across Afghanistan?
6 A. I don't know.
7
123. Q. We don't know?
8 A. I don't know.
9
124. Q. Colonel Noonan, you are aware that there is
an
10
investigation by the National Investigation Service into
11
allegations of certain detainees being abused?
12 A. I'm aware of one request by my commander to
13
have an allegation or a potential allegation of potential
14
Canadian Forces member -- inappropriate behaviour by a
15
Canadian Forces member.
16
125. Q. I don't need to ask you -- I'm talking about
17
actually the investigation that came out of the Military
18
Police Complaints Commission complaint and the issue I
19
want to ask you about is the efforts by the National
20
Investigation Service to locate those three detainees to
21
ask them questions. It's my
understanding that the NIS
22
have not been able to locate those detainees?
23 A.
I don't know.
24
126. Q. You have no information about that?
25 A. No.
38
1
127. Q. You don't know if they've located the
2
individuals?
3 A. I don't.
4
128. Q. You're aware that the NIS is looking for
them?
5 A. No, I was not.
6
129. Q. I'd like to show Colonel Noonan the
7
Supplementary Affidavit of Alex Neve.
It's in the Motion
8
Record, if that's what you're -- Motion Record, Volume I.
9 MR. GRAHAM: Here it is.
10 MR. CHAMP: Exhibit A.
11 MR. GRAHAM: Exhibit A.
12 BY MR. CHAMP:
13
130. Q. It's a newspaper article, "Canada Loses
Track
14
of Afghan Detainees. Do you want
to just take a look at
15
it for a couple of minutes and tell me if you have any
16 knowledge about the matter?
17 MR. GRAHAM: Counsel, I've already objected to
18
questions going to allegations of abuse by the forces.
19
You're not asking about that?
20 MR. CHAMP: I'm not asking about that. Absolutely
21
not. Sorry about that,
Colonel. Just so you're clear,
22
I'm asking questions about the issue that these three men
23
have vanished in Afghan custody and unable to be located.
24 MR. GRAHAM: I think the witness has already told
25
you he has no idea whether these people have been located.
39
1 MR. CHAMP: I was trying to refresh his memory
2
once he took at that. I thought
that might help him.
3 BY MR. CHAMP:
4
131. Q. You have no information about that at all?
5 A. Not that I'm aware of, no.
6 132.
Q. That doesn't cause you any
concern with
7
respect to the transfer of detainees to Afghan
8
authorities?
9 A. I don't -- I don't take military actions
based
10
on media articles although unless it makes sense to do so.
11
133. Q. But the National Investigation Service are
12
saying that they can't find these men.
13 MR. GRAHAM: Well, Counsel, you're giving evidence
14
now. This witness has said he
doesn't know that and I
15
suggest to you your question calls for speculation as to
16
what he might do based upon a state of knowledge he
17
doesn't have. *O*
18 BY MR. CHAMP:
19
134. Q. So you're saying to me, sir, that in CEFCOM
no
20
one is aware of any of that information?
21 A. No.
22
135. Q. No one's heard of that? No one's aware of any
23
vanished detainees?
24 A. No.
I'm not saying that.
25
136. Q. It hasn't come up?
40
1 A. No. I
am not saying that.
2
137. Q. What are you saying then?
3 A. What I'm saying is I'm not -- in my affidavit
4
I'm trying to give you an idea of what I know. I don't
5
know the circumstances surrounding that except that
6
someone is investigating it as you've just told me, so
7
that's why we have an investigating service to do that for
8
us.
9
138. Q. No issues have been raised about the
10
preliminary findings of that
investigation with CEFCOM?
11 A. Not that I have had to take for action. I'm
12
just not in the loop in that particular regard.
13 MR. CHAMP: I think I'm done, Counsel. I'm just
14
going to take a break for two minutes or maybe five
15
minutes. Is that okay?
16 MR. GRAHAM: Sure.
17 MR. CHAMP: I should be done.
18 (SHORT RECESS)
19 THE WITNESS: In my eagerness to provide you an
20
answer, the article that has been presented ---
21 MR. GRAHAM: This is Exhibit A to the
22
Supplementary Affidavit of Alex Neve.
23
THE WITNESS: Yes.
Right. After having taken a
24
look at the headline, I had thought it was talking about
25
Canadians losing track of Afghan detainees in the process
41
1
of it.
2 MR. CHAMP: Sorry about that.
3 THE WITNESS: Okay, so it's my -- well, my fault.
4
I didn't read the entire thing. I
am aware of the
5
incident in question on the 8th of April that's alluded to
6
in the media. I am not aware of
the NDS -- sorry the NIS
7
investigations that are surrounding that, so if that
8
alters your line of questioning, I am aware of that.
9
MR. CHAMP: No.
That's more what I was focusing
10
on.
11 THE WITNESS: Yes
12 MR. CHAMP: That other issue has nothing to do
13
with us as far as I'm concerned.
14 THE WITNESS: Right.
15 MR. CHAMP: What it is about here is the concern
16
is that if they're transferred to the Afghan authorities
17
and then we go asking from the Afghan authorities just
18
tell us, we have no idea where they are any more, can't
19
say if they were released or not or whatever, that that
20
would be an issue of concern to us.
21 THE WITNESS: So that's the clarification on that
22
one.
23 BY MR. CHAMP:
24
139. Q. You would agree that is an issue of concern
25
that if someone goes missing and they can't say what
42
1
happened to them one way or the other, that would be an
2
issue of concern to us?
3 A. I suppose it is. I suppose it is.
4
140. Q. I don't think it's a difficult proposition.
5 A. Right, yes.
It's something that we're looking
6
at, I guess.
7
141. Q. I was just looking for the portion of your
8
affidavit -- okay. Can I take you
to paragraph 37 of your
9
affidavit? Paragraph 37 you say,
"The Canadian Forces do
10
not presently have the capacity or capability to establish
11
and manage a long-term detention facility in a deployed
12
theatre of operations."
13 Are you prepared to clarify
that statement in
14
light of the doctrine now that I showed you with the
15
plans?
16 A. Sure, yes.
The doctrine gives us a feel for
17
the prisoner of -- sorry -- a plan if we had to do a
18 prisoner of war holding area, what it
would look like.
19
That doesn't mean that we actually have that capacity in
20
terms of people or capability in terms of skill set and in
21
fact we don't.
22
142. Q. But
you had indicated to me that people do get
23
training to do that?
24 A. They are made aware of it and they -- even in
25
my training we have seen them -- they are made aware of
43
1
it. They practice it sometimes
but very to small degrees,
2
trying to maintain some kind of understanding of what it
3
would take.
4
143. Q. Do you know how long it would take to build
5
one of those kinds of facilities?
6 A. The facilities, I'm not sure. Again I didn't
7
want to talk about bricks and mortar.
It's about the
8
building of the capability and capacity for us to do it.
9
Historically, in terms of building capacity and capability
10
within a Canadian Forces, it's measured in months and
11
years to go from zero to -- or even the residual doctrinal
12
basis on which we have prisoner of war camps to actual
13
deployment of that capacity.
14
144. Q. When you say "historically", what
historical
15
experience are you speaking of there?
16 A. One of my previous jobs was in the force
17
development world within the army and as we looked at
18
trying to develop new capabilities or ensure that we don't
19
have certain capabilities go to a point where they are no
20
longer useful. So if we
identified a capability gap which
21
is always the case in any kind of organization and if you
22
needed to close that gap, that's measured in terms of --
23
once you've identified that gap and then go towards
24
closing that gap, it's been my experience that it's been
25
months and years before you can actually get to that
44
1 capability.
2
145. Q. When you say "new capability"
that's just in
3
general, not with respect to detention facilities
4
specifically?
5 A. Right.
That's right. That's a general
6
comment.
7
146. Q. So as a general comment the development of
new
8
capability to do anything can often take years?
9 A. Yes.
10
147. Q. That would be starting from zero to
11 developing, you know, early interim
policies, interim
12
doctrines to ---
13 A. How to integrate it in wherever you want to
14
put it to, the skill sets that are associated with the
15
human resources, the dollars that are allocated for that
16
kind of activity.
17
148. Q. I accept your statement on that but that
18
doesn't necessarily apply to long-term detention
19
facilities. If I look at -- let's
go back to the
20
document. It's in Hameed's
affidavit, Volume II, Exhibit
21
Q.
22 A. What page?
23
149. Q. Start at page 3E6. You've gone past it. It's
24
at the bottom, 3E.
25 A.
I've got a 3E3.
45
1
150. Q. You might have 3E13 ---
2 A. I see.
Got it.
3
151. Q. The military pagination has kind of got me
4
nuts as well. Colonel Noonan is
smirking at both counsel.
5
So if I could take you to 3E1-1, just the next page over?
6
So if you just look on the left side there, example of a
7
layout of a basic collecting point.
You're an engineer,
8
right, sir?
9 A. I am, yes.
10
152. Q. How long do you think it would take to build
a
11
facility like that?
12 A. To build this in terms of bricks and mortar?
13
153. Q. Well, in terms of what they're saying. Like
14
if I read it, there's a fence, barbed wire, post metal
15
fence, driver, picket, gloves, wiring, tape cut reel,
16
barbed wire ---
17 MR. GRAHAM: Counsel, do you mean actual
18
construction or ---
19 BY MR. CHAMP:
20
154. Q. Yes.
Yes. Construction. The trench, so
21
forth, latrine, the cat wire fence.
22 A. Right.
No, understood. I'm going to frame
my
23
answer in the fact that it's irrelevant but it would not
24
take long.
25
155. Q. Why do you say it's irrelevant?
46
1 A. Because the permission to build that, the
2
skill set to man it, the underpinning legal authority to
3
do so would take much longer than it would take to
4
actually construct it.
5
156. Q. What is the skill set to do so? What's
6
required there?
7 A. The skill set is one not just of security but
8
understanding the rules under which you are manning that
9
holding facility, understanding the rules of engagement
10
that you would be operating under, in other words when,
11
if, how, to apply force, the ability to -- so that's the
12 people themselves that are actually
doing that holding and
13
then putting within a command of control structure that
14
people need to understand again under which they can order
15
the application of force, under which they are being asked
16
to detain long-term, under what provisions they would do
17
so.
18
157. Q. Colonel Noonan, there is a temporary
detention
19
facility operated by Canadian Forces at Kandahar air
20
field?
21 A. No.
That's a transfer facility.
22
158. Q. It's a facility that's used to detain and
hold
23
detainees for up to three days?
There's four tents,
24
they're guarded ---
25 A. It's a facility where we hold the detainees
47
1
prior to transfer, yes.
2
159. Q. Up to three days?
3 A. The 96 hours so that's what? Three days or
4
four days?
5
160. Q. Four days.
Pardon me. Four days.
6 A. Yes.
7
161. Q. It's a temporary detention facility?
8 A. No. It's
a transfer facility.
9
162. Q. So the individuals who are there, they're
10
guarded, I gather?
11 A. Yes, they are.
12
163. Q. Those guards would be training about when and
13
if to apply force to those individuals?
14 A. That's correct, yes.
15
164. Q. There would be a command and control
structure
16
that deals with the orders to those individuals, the
17
guards of when and if to apply force?
18 A. In its present construct, that's correct,
yes.
19
165. Q. How is that different from a long-term
20
facility, sir?
21 A. We would have to go through that process to
22
determine that difference in exact detail.
23
166. Q. That would take years to do that?
24 A. Not the determination of the difference.
25
167. Q. Weeks?
48
1 A. I'm not sure how long it would take to do the
2
determination of the difference but it would not be the
3
critical path to the solution set if we have to go down
4
there. The critical path would be
gaining international
5
concurrence to operate in this manner.
6
168. Q. Taking away the legal authority, I'm just
7
talking about the operational capability for the moment.
8
A. And again, once we've identified gaps,
9
providing solution sets that go to closing those gaps from
10
the operational capability would be training of personnel,
11
supplemental training ---
12
169. Q.
How would it be different than the training
13
those individuals already have?
They're guarding them.
14
They have to determine when and if to apply force. How
15
would the training be different?
16
A. They need to -- when and if to apply force,
we
17
would either have to determine whether we would take those
18
personnel that -- because of the likelihood of increased
19
inhabitants of this and the time frame involved with it,
20
we'd have to determine where we would get these people
21
from, whether it would be in-theatre which takes away from
22
the job that they're currently doing or whether we would
23
have to build new capacity which -- sorry, yes, a new
24
capacity within which to generate these people, the
25
funding that's associated with it, the training that's
49
1
associated with it, the equipping that's associated with
2
it.
3
170. Q. What do you mean by "equipping"?
4 A. More people, more guns, more whatever types
of
5
materials that are required, personnel.
6
171. Q. I understand that there is the concern about
7
redirecting personnel from other activities to manning a
8
detention facility for a longer period or with larger
9
numbers would be a concern. Is
that the main concern?
10 A. That's one of the concerns. The other concern
11
that we do have is that without the proper training,
12
without experience in it, the execution of that may go
13 wrong as has been evidenced in my
understanding of -- of
14
for example the Abu Ghraib situation.
15 Our folks have not been
exposed to, historically,
16
nor have been for at least my generation to the holding of
17
detainees or prisoners of war, either one, in our
18
generation. We don't know the
risk -- the lack of
19
knowledge that we have in the actual conduct of it is
20
significant.
21
172. Q. Because the Afghanistan mission is the first
22
true combat mission for the Canadian military since the
23
Korean world war?
24 A. That we've got to this level? Yes.
25
173. Q. I gather that the Canadian Forces have been
50
1
developing a lot of new capacities and skills over the
2
last two years in the course of their deployment?
3 A. We have been integrating some capabilities
4
that we have not deployed recently.
But in terms of
5
brand-new skills? No. We've got infantry. We've got
6
armour. We've got competent
engineers. Our ability to
7
deploy them better trained from lessons learned is there.
8
Our ability to integrate a new weapons system such as --
9
not a new weapons system but the tank, we've been able to
10
do that but it's not an old -- it's not a new capability
11
that we've integrated into that force.
12
174. Q. Colonel, on page 3E2-1, I think it's just a
13
page over. There you go. That's a map or a layout of a
14
central collecting point for 200 prisoners of war?
15 A. Yes.
16
175. Q. How long do you think it would take to build
a
17
facility like that?
18 A. A collecting point is after the conduct of an
19
operation, those that were detained or taken prisoner of
20
war are collected there with the intent to move them on,
21
back to the prisoner of war cage, back to potentially
22
long-term detention facilities.
23
176. Q. How long would it take to build it?
24 A. This one here again not a long time to build,
25
no, from an infrastructure perspective.
51
1
177. Q. The other one took I think they said an hour
2
and a quarter.
3 A. Yes.
4
178. Q. This one a day? A day, maybe?
5 A. Yes, sure.
It depends on how many people you
6
have assigned to the task.
7
179. Q. At 3E3-1, example of a 500 prisoner of war
8
holding area compound. How long
do you think it would
9
take to build that?
10
A. This is temporary again, tented
accommodation,
11
some of them have latrines and ablutions. Again depending
12
on how many people you can assign to the job and how
13
quickly you can assemble the stores, once you've got that
14
altogether, you know, a week, maybe less. I don't know
15
what it says in the book.
16
180. Q. Actually I don't think it says exactly. It
17
doesn't say. At page 3F1-1 ---
18
A. Which is Appendix 1, I guess? 3F1-1, okay.
19
181. Q. It's Appendix 1, Outline Establishment for
20
Administrative Staff for Prisoners of War Holding Areas
21
and Camps?
22 A. Yes.
23
182. Q. It shows the list of different personnel
24
required to operate the 500 prisoner of war camp?
25 A. Yes.
In theory that's what we think it will
52
1
take.
2
183. Q. I counted something, it's about 55 or so?
3 A. Sure.
4
184. Q. It doesn't have a list in here about how many
5
people it would take for the 200 prisoner -- pardon me --
6
the 200-person prisoner of war facility.
How many staff
7
do you think it would take to operate that one?
8 A. I have no idea. This is all theory. This is
9
doctrine. This is what we think
it would take if we had
10
all of the bells and whistles and the authorities and all
11
of that kind of good stuff, that's what we think it would
12
take.
13
185. Q.
So assuming that, all the bells and whistles
14
and so forth, how many people do you think it would take
15
to operate the 200-person prisoner of war holding camp?
16 A. I have no idea. That's not my area of
17
expertise. I look at this and it
sounds reasonable. I
18
look at the bricks and mortar part because I am an
19
engineer. I can give you a better
answer to that. So,
20
you know, looking at it that sounds reasonable in theory
21
of operating what could be a prisoner of war holding area
22
and camp.
23 MR. CHAMP: Colonel Noonan, thank you very much.
24
Those are all the questions I have for you.
25 THE WITNESS: Thanks.
53
1 MR. CHAMP: I want to thank you again very much.
2
--- THE EXAMINATION ADJOURNED AT THE HOUR OF 4:37 IN THE
3 AFTERNOON.
4
5 WE HEREBY CERTIFY THAT the
foregoing was
6 transcribed to the best of our
skill and ability,
7 from taped and monitored
proceedings.
8
9 ................................................
10 G R S / B L / S P
1 Examination No. 07-0465.2 Court File No. T-324-07
2
3 FEDERAL COURT
4 B
E T W E E N:
5
AMNESTY INTERNATIONAL
CANADA and
6 BRITISH COLUMBIA CIVIL LIBERTIES
ASSOCIATION
7
8
Applicants
9
10 - and -
11
12
13 CHIEF OF THE DEFENCE
STAFF
14 FOR THE CANADIAN
FORCES,
15 MINISTER OF NATIONAL
DEFENCE
16 and ATTORNEY GENERAL OF
CANADA
17
18 Respondents
19
20
21 **********************
22
CROSS-EXAMINATION OF COLONEL STEVEN NOONAN ON AFFIDAVIT
23
sworn May 1, 2007, pursuant to an appointment made on
24 consent of the parties, to be reported by
Gillespie
25
Reporting Services, on May 2, 2007, commencing at the hour
26
of 2:50 in the afternoon.
27
***********************
28
29
APPEARANCES:
30 Paul Champ, for the
Applicants
31
J. Sanderson Graham, for the Respondents
32
This Examination was monitored by Gillespie Reporting Services at
33
Ottawa, Ontario, having been duly appointed for the purpose.
1 (i)
2
3 INDEX
4
5
6
NAME OF WITNESS: COLONEL STEVEN
NOONAN
7
8
EXAMINATION BY: MR. CHAMP
9
10 NUMBER
OF PAGES: 2 THROUGH 53 INCLUSIVE
11
12
13
14
15
16 ADVISEMENTS, OBJECTIONS &
UNDERTAKINGS
17
18
19
*O* . . . . . . . . . . . . . . . . . . . 6, 8, 22, 29, 32, 33, 39
20
21
22
23
24
25 EXHIBITS
26
27 (NONE ENTERED)
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
DATE TRANSCRIPT ORDERED: 02 MAY
2007
48
49
DATE TRANSCRIPT COMPLETED: 02 MAY
2007
50
51
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