The questions we are not asking

Whenever a political story catches fire and the hepped-up opposition, eager reporting corps and not-always-adept government types conspire to stoke the furnace, there are always people watching who know much more of the truth than most of those working the bellows on Parliament Hill.

In the case of the Afghan detainee story, I happen to know a couple of these people.

They are, or were, spooks, to use the vernacular — intelligence types who had their fingers in Afghanistan from just about the moment the Canadians arrived there.

They've been listening to the uproar over diplomat Richard Colvin's testimony, which they take no issue with. But they have their own version of what happened over there. And it's well worth listening to.

Neither source knows the other, but they confirm each others' accounts and they raise some important questions, one of which, you might say, turns the whole issue on its head.

While much of Ottawa is wringing its hands over the fate of possibly innocent Afghan prisoners turned over to their own government, what about those Afghan prisoners who actually had Canadian blood on their hands?

Well, it turns out we turned them over, too — while knowing full well what they had done — and more than once.

Why? Because Canada, unlike the U.S., scrupulously follows international law. And on several occasions, Canada has surrendered Afghans that we knew had a role in the killing or wounding of Canadian soldiers.

These Afghans then disappeared into a broken justice system run by a corrupt government. As far as my two sources know, they weren't tracked.

First casualties

Both my contacts recall, for example, what was referred to as the Jowz Valley strike back in October 2003, not long after the first small group of Canadian soldiers arrived in Afghanistan.

Basically, a mine blew up under a Canadian army vehicle, killing Sgt. Robert Alan Short and Cpl. Robbie Christopher Beerenfenger, both soldiers in the Royal Canadian Regiment.

The incident sparked an internal inquiry, much of which is still posted on the Department of National Defence website.

Those two troopers were the first Canadian casualties of an enemy attack in Afghanistan, an attack, the official DND report posits rather clumsily, that was probably no mistake.

The inquiry concluded that no Canadian Forces member is to blame for the deaths. But it failed to report, at least in any public way, that Canada's intelligence agencies knew within a few hours exactly who laid that mine.

The killers were not Taliban, but rather a band of somewhat amateurish fighters in the employ of the warlord (and former U.S. ally) Gulbuddin Hekmatyar. And they were careless about using their cellphones, which coalition forces can track and tap with relative ease.

Soon enough, the Canadians had scooped two of them up at their homes and eventually arrested two more. Canadian intelligence was even able to identify the commanders who had ordered the strike.

Immediately, the question became: What to do with them?

No secret jails

The Americans had no such dilemma. They had their secret jails, and Guantanamo, and the detention centre at Bagram Air Base in Afghanistan. Anyone believed to have attacked an American ended up behind bars.

The Canadians took a different view.

"We didn't have a prison, and we didn't have any trained military interrogators, and there was some sensitivity about handing them over to the Americans," says one of my contacts.

In fact, he says, there was even a protracted debate about sending them back to Canada to stand trial, which sounded like a great idea to some, until the intelligence agencies made it clear they wouldn't supply the prosecution with any evidence.

The prisoners had been tracked and captured using highly classified signals intelligence methods, none of which would ever be revealed in court.

"So basically, putting them on trial in Canada would have resulted in an acquittal and then they'd be free, in Canada, no doubt applying for refugee status."

"That's no joke," allowed my other, more senior source. Once someone is on Canadian soil, he or she enjoys constitutional protection and full legal rights. Meaning defence lawyers would be able to probe all the evidence and how it was gathered.

(If this dilemma sounds familiar, it is. The Americans have been wrestling with exactly the same issue for years, until finally deciding earlier this month to put certain prisoners on trial in a New York civilian court for the 9/11 attacks. How the U.S. prosecutors will handle classified or tainted evidence is an outstanding question.)

'Soft interrogations'

So, a Canadian trial was ruled out, and the perpetrators of the Jowz Valley attack — remember, these were men who had killed Canadian soldiers in cold blood — were handed over to the Afghan authorities, who carted them off to the sprawling Pul-e-Charkhi prison near Kabul, where they were housed in a wing controlled by the Americans.

To be specific, these were American civilian interrogators, contracted by the American military, who conducted what my acquaintance calls "soft interrogations."

"They didn't get anything out of them," he says. "I don't know where they ended up."

If Hekmatyar's men were treated roughly by the Afghans, my contact doesn't much care: "They killed our people. We weren't thinking warm and fuzzy where they were concerned."

But it was only the first instance. There were other occasions when the Canadians handed over prisoners who the intelligence agencies were certain, or as certain as it is possible to be, had killed or wounded Canadian soldiers.

"We had no alternative," says the more senior source. Neither could offer a number, but one said that Rick Hillier, the retired former general who headed the Afghan mission, was provided with the intelligence on each occasion.

In the Canadian mission's early days, said one source, quite a few Afghans captured by Canadian soldiers wound up in American hands.

But that changed, especially after the Abu Ghraib scandal erupted in Iraq, with its graphic pictures of abuse at the hands of American jailers. Handing prisoners off to U.S. forces became politically radioactive.

'No other option'

And of course the Canadians still hadn't forgotten their own debacle in Somalia in 1993, when a bunch of soldiers from Petawawa caught a Somali thief and tortured him to death, setting in motion the eventual breakup of the Canadian Airborne Regiment.

"After Abu Ghraib and Somalia," says my contact, "there was no stomach for interrogations. Plus, we were there to support the Afghan government.

"We had no legal authority that we knew of to detain Afghans for any length of time. So we handed them over to their own government. So did the Italians, and so did the Germans, and so did the French. Everybody did. We had no other option."

Does he worry that innocents were swept up and handed over and tortured? Civilians, like the taxi driver Dilawar, who wound up dead and broken in a U.S. prison outside Kabul in 2002?

One of my contacts answers that with another story.

Firefight

Back in 2003, Canadian intelligence had identified a particularly nasty Taliban commander, one who distinguished himself by laughing as he discussed how he killed people, including his own countrymen. (He was careless with his cellphone, too.)

He and his band of 30 or so fighters became an official target.

Eventually, Canada's ultra-secretive Joint Task Force-2 commandos were sent in to kill or capture the commander and his men.

They flew into the mountains outside Kandahar in an American Chinook helicopter, carrying with them a contingent of Afghan fighters. As the helicopter landed, it came under fire, and several of its occupants were wounded.

The Canadian commandos managed to drag themselves higher up the hill where a firefight ensued. All the while, of course, signals intelligence officers were monitoring communications.

It became apparent that most of the Taliban commander's men were killed early in the battle. But still the fight continued.

"What was happening was that people were running in from nearby villages, and calling the commander on their phones, and offering to help," says my contact. "They might have been civilians, but they were Pashtun, and there was a fight going on with outsiders. So they jumped in.

"What do you call them? Civilians? And what do you do with them? Again, they tried to kill our people, but we couldn't lock them up."

In much of Afghanistan, he says, "everybody's a civilian, and everybody's a Taliban, and they all put on their innocent faces when you catch them. So you do the gunpowder residue test, and if they were young and they had gunpowder on their hands, we handed them over to the Afghans. What else could we do? We had no choice."

The nod to international protocol, he says, was to inform the International Committee of the Red Cross, through officials from the department of Foreign Affairs, junior diplomats like Richard Colvin, of the names of those taken prisoner and when they were handed over to the Afghans.

"But there wasn't even any way to verify their names. Some of them just use one name, and they don't carry ID. All we knew is that most of the people we took prisoner were shooting at us.

"And we aren't the Americans. So we didn't have many options."

No, we aren't. But as Parliament frets over whether Canadian soldiers indirectly contributed to mistreatment of Afghan detainees, it might be worth pausing for a moment and asking another question altogether:

How many of those responsible for killing 133 Canadian soldiers so far in Afghanistan are known to our intelligence agencies?

And what has Ottawa done to ensure they are brought to some sort of justice?