Hearing Transcript - April 15 2010 - FULL DAY

8/9/2019 Hearing Transcript - April 15 2010 - FULL DAY

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Military Police Complaints Commission

AFGHANISTAN PUBLIC INTEREST HEARINGSheld pursuant to section 250.38(1) of the National Defence

Act, in the matter of file 2008-042

LES AUDIENCES D'INTRT PUBLIQUE SUR L'AFGHANISTANtenues en vertu du paragraphe 250-38(1) de la Loi sur la

dfense nationale pour le dossier 2008-042

TRANSCRIPT OF PROCEEDINGSheld at 270 Albert St.

Ottawa, Ontarioon Thursday, April 15, 2010

jeudi le 15 avril 2010

VOLUME 7BEFORE:

Mr. Glenn Stannard Acting Chairperson

Mr. R. Berlinquette Commission Member

Ms. R. Clroux Registrar

APPEARANCES:

Mr. Ron Lunau Commission counselMr. Nigel MarshmanMr. Matthew McGarveyMs. Danielle Barot

Mr. Alain Prfontaine For Maj Bernie Hudson, MajMr. V. Wirth Michel Zybala, Maj Ron Gribble,Ms. E. Richards LCol (Ret'd) William H. Garrick,Ms. H. Robertson CWO Barry Watson, MWO Jean-Yves Girard, Maj John Kirschner

Ms. Grace Pastine For Amnesty International andMr. S. Jodoin For B.C. Civil Liberties Association

Mr. M. Wallace For Capt(N) (Ret'd) Moore, CFPM

A.S.A.P. Reporting Services Inc. 2010

200 Elgin Street, Suite 1105 333 Bay Street, Suite900

Ottawa, Ontario K2P 1L5 Toronto, OntarioM5H 2T4

(613) 564-2727 (416) 861-

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(ii)

INDEX

PAGE

SWORN: LIEUTENANT-COLONEL DOUGLAS BOOT 1

Examination by Mr. Lunau 1

Cross-Examination by Ms. Pastine 61

Cross-Examination by Mr. Wallace 101

Cross-Examination by Ms. Richards 106

Re-Examination by Mr. Lunau 116

AFFIRMED: MAJOR DANIEL LAFLAMME 126

Interrogation Par Me Barot 126

Cross-examination by Ms. Pastine 196

Cross-examination by Mr. Wallace 238

Contre-interrog Par Me Prfontaine 245

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Ottawa, Ontario

--- Upon resuming on Thursday, April 15, 2010

at 9:00 a.m.

SWORN: LIEUTENANT-COLONEL DOUGLAS BOOT

MR. BERLINQUETTE: Thank you.

THE CHAIR: Good morning, all.

Mr. Lunau.

MR. LUNAU: Thank you, Mr. Chair.

EXAMINATION BY MR. LUNAU:

Q. And good morning, Colonel

Boot.

A. Sir, good morning.

Q. I would like to begin by

asking just some questions about your background

and, in particular, your military police

background.

A. Sir.

Q. Now, you served as the CEFCOM

PM, Provost Marshal, from August 2006 to July 2007?

A. Yes, sir.

Q. Is that correct? And at that

time you held the rank of Major?

A. Yes, sir.

Q. Okay. Could you just give us

a brief overview of your military police career

ASAP Reporting Services Inc.(613) 564-2727 (416) 861-8720

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2007, you were replaced by Major LaFlamme?

A. Yes, sir.

Q. Now, can you explain to the

Commission the structure at CEFCOM and where the

CEFCOM Provost Marshal fit into that structure?

A. Of course, sir.

Obviously, Commander CEFCOM was at

the top, Lieutenant General Michel Gauthier.

Underneath him was a number of his personal staff,

his executive assistant, his personal assistant.

Then, in essence -- and there were

some specialists, advisors, the JAG, medical

advisor and the like.

Then the CEFCOM was, in essence,

broken down into COS OPs, Chief of Staff

Operations, and COS support. Basically, the COS

OPs ran the G3. If I say something that sounds too

army or too military, please just stop me and ask

me to clarify.

The G3 is, in the continental

system, responsible for all operations. So he ran

the G2, which was intelligence, and the G3, which

was the operational realm.

The G4 ran all of the -- in

essence the support. So he ran the G4, which is


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logistics; G6, which is communications; all of the

enablers that help the operators do their job.

I worked directly for COS support,

who at the time during my tenure was Captain Mark

Eldridge.

Q. I take it that is Captain

Navy?

A. Sorry, Captain (Navy) Mark

Eldridge. Then over -- sorry. Then the other one,

the sort of over on the far right-hand side of the

org chart, would have been the director of staff,

and that was Colonel -- his name escapes me. Great

guy.

He runs all of the -- he ran all

of the bureaucracy of the headquarters. So he did

anything that helped the flow of paperwork and all

of that bureaucracy of the headquarters, and you

can imagine it was quite a big job.

Q. Can you tell us what your

particular duties were as CEFCOM Provost Marshal?

A. My primary duty was I was the

principal, and ultimately the sole, advisor to the

commander and all of his staff for the full range

of military police responsibilities. So I was an

advisor to him.


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operations where military police were involved, but

clearly our main focus and our main effort, as the

military police, was at -- in Afghanistan.

That said, of course, sir, because

we didn't have military police in other operations,

I often paid as much attention to some of the

smaller operations, because I might be the only

policeman or the only MP who had focus on some of

the operations, but obviously Afghanistan was our

primary -- our primary effort.

Q. Apart from the Afghanistan

mission, which was obviously quite important, can

you give the Commission some idea of how many

missions were under your purview?

A. I think at the time, there

were 27 missions. They were -- they were from

one -- we had one person in Iraq to 2,500 in

Afghanistan.

Most of the missions were fairly

small, double digit, you know, sort of low double

digits; some single digit presence. But I think

total there was, I think I remember briefing

somebody -- I think it was 27 at the time.

Q. Can you describe for us what

your work load was like?


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A. The term I often use is

"psychotic". It was unrelenting, you can

appreciate, the operational tempo in Afghanistan,

with 28 missions, 26 or 28 missions -- 27 missions.

And being the only military policeman, we would

have meetings daily. In fact, at times, there

would be two or three meetings ongoing at the same

time, and I would be expected to -- or be expected

to attend and represent the military police at

these meetings, and I would just have to make a

command decision and say, You know what? This

meeting is more important than this meeting.

I had an officer with me for a

short period of time, but she was focussed on sort

of the other missions and I paid most -- tried to

pay most attention to Afghanistan, but it was just

chaotic, made even worse of course in September

when we started with Op Medusa and the focus of

Afghanistan.

Afghanistan changed and it just

became -- overwhelming I think is not an

unreasonable way to describe it.

Q. To the extent that you can,

can you give the Commission some idea of the

adequacy of the resources available to you to do


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your job?

A. I would say we didn't have

enough resources to do the job.

When CEFCOM first stood up, we

were in fact scheduled to have -- we were scheduled

to have a Lieutenant-Colonel and about seven staff.

It may have been five, but, numbers, about that

number. You know, but that was a credible staff.

That could have provided a real planning and

support capability.

The problem with one person, of

course, is that I go on holidays, or I get sick, or

I'm at one meeting and I am unable to represent --

be represented at another meeting.

The problem was that CEFCOM came

out of another organization. It was as a result of

the devolution of another organization, and we were

limited; we were capped at the number of people

that could belong to CEFCOM.

And because of that, they just

decided we need just one military police officer to

provide support, because my job was -- was truly

the personal advisor to the commander on policing

and military policing issues. So that was how they

viewed it, is I was a personal advisor.


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Q. Okay. And turning to that

aspect of your duties, what types of advice did the

commander look to you for?

A. Primarily he was looking to

me for status of investigations, was within of my

big ones.

I also provided input -- and,

again, I wasn't just talking to the commander, of

course. I was talking to all of the staff. In

fact, I rarely tacked to the commander personally.

I did on occasion, but it wasn't all -- you know,

by no means was it a daily thing.

I was much more closely aligned

with -- even though I worked for COS support, chief

of staff support, I went to the OPs briefing every

day, and I was as involved with the operations as I

was in sort of the support, but things like close

protection, a classic example.

Close protection was quite a hot

topic, and I spent an inordinate amount of my time

deconflicting or trying to advise the staff as to

what I thought was a reasonable number of

bodyguards we needed to send in, because it was a

high value add. It was a very-much-in-demand

capability. We had very limited numbers.


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So we had to sort of, excuse me,

manage people's expectations as to how many

bodyguards we could send in, because the military

police provide close protection for high value

personnel.

Q. What about the J9? Can you

tell us how you would have interacted with the J9?

A. It was very informal. There

was no formal meetings. She and I -- we're talking

about Ms. Duschner, now? I just want to confirm

we're talking about Gabrielle Duschner?

Q. Yes. She was the J9.

A. Okay. I just want to make

sure of that. Firstly, it was fairly informal. We

sat beside each other often in the operations -- in

the daily operations meeting.

A lot of what I did was obviously

quite interesting, but there wasn't any formal,

formal connectivity. It was much more of an

informal nature.

She might say, Have you seen this?

Have you been told about this? What are you

thinking about this? And I would, you know, give

her my input, because she was a staff advisor, a

staff person. So, also, my job was to advise her,


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as well. She, being a civilian, might not

understand the roles and responsibilities of the

military police.

So, again, part of my job in a lot

of cases was to educate people on what we did, why

we did it and how we did it.

Q. Would you say that you were

intimately aware of communications or information

that the J9 received?

A. No, sir. I had no visibility

on the information, because most of what she

received came through her net, and most of what I

did -- and through DFAIT and the like, and most of

what I did came through from secure means, a

military secure means.

Q. Okay. We have heard

reference to a communications network called the C4

network. Did you have C4 connectivity?

A. No, sir, I did not. That was

-- I apologize. I didn't realize that was out

there. C4 is the DFAIT network. And she, and I

think one of her staff, had the only -- had the

access to it.

Q. Now, turning to your working

relationships with Task Force Afghanistan, did you


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have any command authority over the Task Force

Provost Marshal?

A. None whatsoever, sir. I had

technical authority as the senior technical

advisor, the senior technical military policeman,

but, no, absolutely no command authority.

Q. And just so that the

Commission understands the distinction, can you

explain the difference between command authority

and technical authority?

A. The way I describe it, sir,

is commanders tell, tactically tell, how to do

their job from a military perspective. I told them

how to do their job from a policing perspective.

So the commander could, for

example, say, I want the military police to guard

this facility.

I might disagree. I might say

that is not a good use of a police -- of a

policeman, but ultimately the commander could say,

I want the police to guard this facility.

If, however, they were actually

conducting investigations or something arose that I

felt maybe they should be conducting an

investigation or they had launched an


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investigation, I provided technical oversight for

that to make sure that they were doing all of the

right things.

So I could order them to do it, to

do an investigation, but it would have been an

unusual circumstance, unusual for me to have done

it, because, again, my job was much more to advise

the commander.

The difference is that in Task

Force Afghanistan, for example, the Task Force

Provost Marshal had the same role. He was the

principal advisor to the commander on policing

matters and military police support, but he also

commanded the military police in theatre, save for

the NIS.

Q. I was just going to ask you

about the NIS. Did you have either command

authority or technical authority over the NIS in

Afghanistan?

A. No. No, sir I did not. They

answered -- and the command relationship was

directly back to the CO of CFNIS. We provided --

we provided -- one of our roles was, we say in the

military, care and feeding.

We provided administrative support


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for them. We provided -- in essence, we wrapped

our arms around them to make sure they were taken

care of and they could get the -- they had the

tools necessary to do their jobs, like security and

safety and the like.

But from a command point of view,

they answered directly to the CO of CFNIS.

Q. Working our way up the

technical chain of command --

A. Sir.

Q. -- who in the technical chain

of command did you report to?

A. Theoretically -- and I say

theoretically -- the CANOSCOM Provost Marshal, who

was the Canadian Operational Support Command

Provost Marshal.

Q. That is C-A-N-O-S-C?

A. C-A-N-O-S -- C-A-N-O-S-C-O-M.

There were three -- there were four operational

commands, the dotcoms, as we call them. CEFCOM ran

Canadian Expeditionary Force Command, ran all

operations outside of continental North America.

Canada Command was responsible for

all operations in Canada and North America and, I

believe, Mexico, so continental North America.


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There is another command. Am I

allowed to talk about the other command? Canada

Command, CEFCOM, and CANOSCOM was responsible for

operational support to CEFCOM and to Canada

Command.

Q. Okay.

A. And then there was another

command after --

Q. I see.

A. Can I talk about that?

Q. Well, there is another

command?

A. There is another command.

MS. RICHARDS: I think that is

publicly known.

THE WITNESS: Okay. SOFCOM,

Special Operations Forces Command, and that is --

they do other things.

BY MR. LUNAU:

Q. They do other things?

A. They do other things.

CEFCOM, Canada Command, SOFCOM all had majors and

single individual majors as their Provost Marshal,

and that was it.

CANOSCOM, because we are seen --


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for the context. I was a Force employer. We took

-- I took military policemen who had been

Force-generated from the Army, Navy and Air Force

by CANOSCOM. They had trained them, they had

declared them operationally ready, and then they

handed them over to me, as Provost Marshal CEFCOM,

and to the commander of CEFCOM and to the task

Force commander to employ them.

Equally, they would Force-generate

military policemen to go to an internal -- to do a

domestic operation.

So CANOSCOM is primarily -- their

biggest responsibility is the Force generation of

the military police, because of course the military

police are commanded, here in Canada, by -- for the

most part, by the commanders of the Army, Navy and

Air Force.

The ones -- the military police

that work on each of the bases across Canada are --

do not come under the command of the Canadian

Forces Provost Marshal. They come under the

command of the various environmental commander.

So CANOSCOM's responsibility was

to -- is to Force generate these people, to

identify them, to train them, and then turn them


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over to a Force employer who will employ them. Too

much detail?

Q. No.

A. I am not quite sure I

answered your question. Sorry, sir. I got off on

a tangent there and I am not quite sure I answered

your question.

Q. No. I think that detail is

very helpful to us.

Now, in the organization or the

technical chain you have just described, where did

the Canadian Forces Provost Marshal fit in?

A. The Canadian Forces Provost

Marshal ultimately, as the senior military

policeman, was responsible for the way in which --

and ultimately is responsible for the way in which

the military police conduct their specialist

duties.

He, through the Deputy Provost

Marshal, police. The main mechanism by which they

did that was through what was known as a technical

directive. And this basically was to every -- in

every operation, the Canadian Forces Provost

Marshal, through the Deputy Provost Marshal police,

issues a technical directive. It tells the


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military policemen how to do their specialist duty,

which is to say their police function, when to

investigate, when to launch an investigation, how

to conduct the investigation.

In essence, it is the technical

authority and the technical directive by which we

-- they conduct a police investigation, remembering

that ultimately our policemen might not be doing,

on any given day, a too hard policing function.

If I am guarding the ammunition

depot, I am still a policeman, yes, but I am not

doing a policing function. I am doing a general

military duty function. Provost Marshal is not

responsible for how I conduct that duty.

If, however, I have to take my --

you know, my military hat off and put my red hat on

as a policeman, then I default back to -- I defer

back to the Provost Marshal on how I do my job as a

policeman.

Q. I think what you are

describing is what is known in the military as the

"soldier first" doctrine?

A. Absolutely. Absolutely, sir.

Ultimately, we are all soldiers. Our primary job

is to support the mission, and we can be called


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upon to do a military duty.

As I said, given that we're rather

stress trained, I think we're well -- we are

extremely highly trained. I will often tell or

advise the commander, as I have done before, Sir, I

do not think this is a judicious use of a highly

trained, high-speed, low-drag policeman.

And he will often, more times than

not, say, Thank you very much for your advice, and

don't let the door knob hit you wherever on the way

out. And, by the way, I want you to do this job.

Roger that, sir. And we will get on with the job.

Q. Now, while you were CEFCOM

Provost Marshal, did you have regular communication

with the Canadian Forces Provost Marshal?

A. Only because the definition

in my mind of "regular" is, you know, on sort of a

day-to-day or even a week-to-week or a structured

basis, no.

Once again, I dealt more with his

staff, because most of what I did could be dealt

with by his staff. And, moreover, I would often

say, Here is something -- you know, Rob Bell, who

was in the NIS, was the OPs officer, or if I was

dealing with detail police, I might say, This is


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something the Provost Marshal might want to hear

about.

But to say "regular", no.

Frequent, no. But routine I guess is a good way

of -- routine, but infrequent, contact with him. I

tried to go to his meetings whenever he had

meetings. I failed miserably at that most times,

but I tried.

Q. The way you have explained

command authority and technical authority, did the

CFPM have any command authority over what you were

doing?

A. No, sir, none whatsoever. I

worked directly for commander CEFCOM. Sorry, just

to clarify that point, because it is an important

point, as an advisor to the commander CEFCOM, I

would have rarely been involved even technically

with the Provost Marshal, because I wasn't

conducting investigations.

It wasn't my responsibility to --

you know, to be -- because I didn't have command

authority, to actually conduct investigations or to

order the conduct or to advise on, or to actually

be responsible for the conduct of investigations.

So that is why I didn't routinely deal with the


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Provost Marshal, because it wasn't my job to -- I

was more the conduit to the commander.

Q. I would like to turn to the

topic of military police training.

A. Sir.

Q. And particularly as it

relates to the handling of detainees.

A. Yes, sir.

Q. And the first document I

would like to ask you to look at, do you see the

pile of white books there?

A. Yes, sir.

Q. If you could go to volume 2?

A. Volume 2. Yes, sir.

Q. Turn to tab 13.

This document has been described

to us as part of the professional training that

non-commissioned members and officers would receive

with respect to training. It is a statement of

principles or a type of syllabus.

And you will see, under the

heading "Officer BMOQ", it says:

"Within EDO 16 principles and

laws of conflict, all

officers are instructed on CF


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responsibilities to PWs and

detainees, rights and

obligations of PWs, PW and

hostage environments." (As

Read)

Was that part of the basic

occupational qualification training all MP officers

receive?

A. Yes, sir, because BMOQ is

basic military officer qualification, I believe, so

in your basic training, even before you went to

Borden to attend the military police officer's

course, there would have been a portion of the

basic officer's course.

Whether you are going to be a

pilot or a military police officer or any officer,

it would have been part of the basic course. And

it really would have been, I -- it would have been

fairly introductory in nature, because not every

officer needs to know, in their day-to-day

function, all about prisoners of war and detainees

and refugees.

Q. Did you receive that as part

of your basic military officer training?

A. Sir, you are asking something


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that happened a long, long time ago. I believe I

did, yes, sir.

Q. Okay. What about training in

the Geneva Convention and International

Humanitarian Law. Is that something --

A. Once again, it would have --

I vaguely remember it. It would have been an

introductory. We would have been introduced to the

Geneva Conventions. We would have been introduced

to the fact that this existed and some of the more

high-level specifics about it and the need to --

how to treat people and -- but it would have been

just basically that.

There would not have been any meat

behind it.

Q. Okay. When you were

appointed as CEFCOM Provost Marshal, was there any

specific training or briefing that you were given

with respect to detainees or the Geneva Convention?

A. No, sir.

Q. Okay. When you took over

from Major Rowcliffe, did he give you any kind of

briefing on detainee issues?

A. No, sir.

Q. Did he raise with you any


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points of concern that he had come across while he

was CEFCOM PM?

A. None whatsoever, sir. Again,

just to understand the circumstances that things

weren't as they were later on. We weren't doing a

lot of that type of operation, like, detainee

operations.

Q. Can I just ask you to

elaborate on that? I think what you seem to be

saying is the tempo when you took over was not

so --

A. Absolutely, sir. It was very

much a peace -- you know, when we first moved on to

Kandahar, it was very much more a peace support

operation. It wasn't until Op Medusa in September

of 2006 that the focus changed.

So it was not unlike when I

first -- when I went into Afghanistan when we were

out in Kabul, it was very much a stability

operation, preparation. When we moved out to

Kandahar, it was very much a stability operation.

The focus changed and, again, numbers may -- I

believe it was the Labour Day weekend in 2006 with

Op Medusa.

Q. Okay. When you took over as


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CEFCOM PM in August 2006, did Major Rowcliffe brief

you on any issues or complaints about notification

to the Red Cross or ISAF about detainees?

A. No, sir. No, sir. None

whatsoever.

Q. Did he raise any issue with

you about the adequacy of follow-up being done on

detainees?

A. No, sir.

Q. While you were at CEFCOM, did

you become aware that in May and June 2006 issues

had been raised about notification of detainees to

the Red Cross?

A. No, sir.

Q. Now, you should have a binder

in front of you, the black binder, which is

Collection E.

A. Yes, sir.

Q. If I could ask you to turn to

tab 1, page 3 of 4? You will see the page numbers

at the bottom right-hand corner.

A. Oh, yes, sir.

Q. And this is an email that Mr.

Colvin sent to a number of addressees at the time

he was at the Provincial Reconstruction Team?


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A. Right.

Q. It was sent May 26th, 2006,

and you can see he is reporting some concerns the

Red Cross has about notification.

Were you ever given a copy of this

email?

A. No, sir.

Q. In the same tab, if I could

ask you to turn to page 2 of 4, in paragraph 6,

with regards to a point of contact. The National

Command Element, NCE, Provost Marshal, Major James

A. Fraser, is the national point of contact on

detainee issues in theatre.

Were you advised that in June 2006

Major Fraser had been named the point of contact on

detainee issues in theatre?

A. No, sir, but it would not

have been unusual for him to do that or to have

that done.

Q. Was he the Task Force Provost

Marshal?

A. Yes, sir.

Q. Do you know if that

designation continued after Major Fraser left? In

other words, was this a duty that, from this point


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on, the Task Force Provost Marshal had?

A. I don't believe it was ever

formalized. I am just trying to think of the TSO,

sir, and I am not -- I don't -- In later

iterations, there was a detainee officer designated

by -- not by name, but it said that a detainee

officer was to be designated.

And, in fact, at that point in

time, later on, it was a command decision for it

not to be an MP, an MP officer.

Again, just for background, if I

could explain, the military police traditionally

did detainees, refugees and the like, because one

of our roles traditionally is that of mobility

operations.

You can think world war, and I am

asking you to think World War II, where we have

great numbers of soldiers trying to move towards

the front, and you have a great number of refugees,

detainees, who are involved in the fight who might

clog up the roads that we're trying to use to send

our people forward.

And so the military police were

given the responsibility, traditionally, to handle,

to be responsible for detainees, refugees,


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displaced persons and the like, anybody that might

adversely affect the mobility forward of the

troops. And this is why the default setting tended

to be to the military police.

The other thing is we often took

this role upon, not only because of the mobility,

but because it allowed the combat soldiers to

continue to carry on with the fight, and we could

get people, that they had just been fighting with,

away from danger and hand them back out and move

them out of danger, get them out of the way, and

then -- it was a sequential and a staged movement

backwards, back to the -- back in the good old

days, back to behind enemy -- sorry, behind the

front lines.

And that's why we, the military

police, have traditionally done detainee

operations. But it is not by -- I don't believe it

to be a -- we don't do it because of our 156, our

police officer powers, in the truest sense of the

word.

Detainee operations is seen as an

operations issue, and so there was really no need,

necessarily, for the OPI, the officer responsible

for detainees, to be a military policeman.


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Q. Within CEFCOM, was there a

member of the staff who was primarily responsible

for detainee issues?

A. No, sir. To the best of my

knowledge and recollection, no, sir. By default

setting, I was it, because the Task Force Provost

Marshal in theatre was -- the default setting was

to the Task Force Provost Marshal.

By default, I became, in essence,

the man with the visibility on detainees, but,

again, I would have been doing it on behalf of the

G3, because it is an operational issue.

Q. That being said, you would

have had no command authority --

A. Absolutely none whatsoever.

Absolutely none whatsoever, no.

Q. Did the CEFCOM commander -- I

appreciate the emails we have looked at were sent

before you arrived, but they raised notification

issues within CEFCOM.

When you arrived in August 2006,

did the commander seek your advice on notification

to the Red Cross?

A. No, sir. No, sir.

Q. If I could ask you, in the


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same book, to turn to tab number 4?

This document is an email that Mr.

Colvin sent in September 2006, when he was at the

embassy in Kabul, relaying problems that ISAF has

expressed with respect to the Canadian approach on

detainee issues and problems in obtaining

information.

I will just give you a second to

read the email.

A. Okay, sir.

Q. And I point out you are not

an addressee on this email.

A. Yes, sir. You are correct,

sir.

Q. But my question is: Did a

copy of this email find its way to you at CEFCOM?

A. No, sir.

Q. Do you recall any discussions

between you and the commander or you and the J9

with respect to the contents of this email?

A. No, sir.

Q. Are you aware of the

supplemental agreement that was signed with

Afghanistan on May 3, 2007?

A. Yes, sir.


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Q. Did you have any involvement

in the development of that agreement?

A. Absolutely none, sir.

Q. Were you asked to provide any

advice with respect to the preparation of that

agreement?

A. No, sir.

Q. I would like to turn, now, to

the flow of information within CEFCOM.

A. Sir.

Q. In your position as CEFCOM

PM, would you receive reports on detainees from the

Task Force Provost Marshal?

A. Yes, sir, informally, again,

only by way -- because the flow of information was

so pervasive, hundreds, you know, potentially

thousands of documents a day flowing in, we wanted

to make sure that we -- that in those areas for

which the military police felt responsible, that we

had a back-up plan.

So, once again, detainee reports

and all of this would have gone from the J3 in

theatre to the J3 in CEFCOM. That is their

command, because there is -- that is the command

relationship there.


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And to ensure that we were --

there was a back-up plan, I was often getting a

similar report. So, for example, if we took a

detainee, the report would go from J3 in

Afghanistan to the J3. Major Hudson or Jim Fraser

would also notify me.

So I would then go into the J3 and

say, Did you hear that we had a detainee in our

care? And they would say, Yep, got it, or I would

make sure that in the commander's daily briefing

that I saw, that, yep, up on the status -- because

every day there was a status board, that, yes, it

indicated that a detainee was currently in the

transfer facility.

But it was very much an informal

process. It wasn't a formalized set-in policy or

procedure that he was required to tell me.

Q. Can you tell us, on a routine

basis, what type of information relating to

detainees would be flowing into your office?

A. For the most part, we were

getting -- the TSO had a number of annexes which

dealt with -- TSO-321A, which talked about the

detainee operations, had a number of annexes which

would, amongst other things, set out time lines and


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the like.

And one of the annexes was the --

was, in essence, the report by which we identified,

you know, when the detainee was taken into custody.

I would identify him, get medical care as

necessary, and then when we would turn him over to

Afghan authorities.

I can say the annex, but I would

say it without much -- without much strength of

certainty. I think it was Annex F, was the annex.

And that would be the type of

information that I would get, which was basic

personal information about the person and how we

had -- the transfer process, because sometimes, of

course, the detainees or the -- the detainees would

be taken by somebody in an operation, and then they

would be brought back to KAF, to the Kandahar Air

Field, where the transfer facility occurred. They

would then be transferred to the military police

there.

We would then make sure that the

detainee was seen by the medical people, and the

like, make sure that he was in good shape, and then

would be the holding facility until such time as

the NDS could -- or whoever was called forward and


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we could arrange for transfer.

So sometimes it was very much a

step-back process.


volume 1?

A. Sir.

Q. And tab 16?

A. Yes.

Q. At the very end of the tab,

you will see there are -- some of them are big

black pages, but there are some forms there.

A. Yes, sir.

Q. Would this be the type of

form you are referring to?

A. Absolutely. Yes, sir.

Q. Okay.

A. And it helped, actually, we

were -- as time went on, we actually got a -- we

worked hard and we got a scanner into theatre so

that we could make this a little bit more

formalized, so --

But, yes, absolutely, this is

exactly the type of thing that we would -- I would

expect to see and we would expect the Provost

Marshal in theatre to keep a copy of, and for the


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J3 in -- the J3 in CEFCOM to have a copy of, as

well.

Q. And apart from --

A. Sorry, I was just flipping

through. Annex H, sir, is one of the -- is

probably the big one, which identified, you know,

the person seized, where, why, and then sort of the

hand-back.

In police parlance, or at least in

military police, in essence, they call it a "live

body receipt", that we are signing for the person,

that he is -- you know, he's fine and that he is

not injured.

Q. Right. Now, in addition to

these reports, were there any reports that came to

you about allegations of abuse of detainees? Let's

look at the period initially between the date of

your arrival and May 3, 2007 when this

supplementary agreement came into effect.

A. No, sir, other than -- the

one that of course made all the press was the

Graeme Smith article and the subsequent articles.

That was the first real indication -- not real

indication -- the first time there was even a hint

that there might be an issue.


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Sorry, let me rephrase that. On

the 15th of December 2007, I received a telephone

call from the public affairs officer at CEFCOM

saying that Mr. -- a reporter for the Globe and

Mail, whose name escapes me --

Q. Mr. Smith?

A. No, not Mr. Smith.

Q. Koring?

A. Koring. Mr. Paul Koring was

asking about, Had the military police conducted any

investigations into abuse of detainees? I

immediately said no, because I hadn't heard any,

but I wanted to make sure that I was right.

So I went to the Task Force

Provost Marshal and I said, Had we ever

investigated an allegation of abuse or maltreatment

of detainees? And they had in fact had one

allegation, and that was actually a hand-over from

one MP group to another MP group. And one MP

group, the fellows that surrendered the detainee

were unhappy with the way the receiving MP group

had taken him into custody.

We had, at that time -- and that

was in March of 2006. March of 2006 we had called

in the NIS. The NIS had investigated and had found


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that there was no mistreatment of the detainees.

It was just a misunderstanding.

And that is what I reported to Mr.

Koring, was that that was the only allegation that

we had received and the only allegation that we had

investigated.

Q. Now, just to clarify, to

confirm the date, you said this discussion with Mr.

Koring was in December of 2007?

A. No, sorry. January 2007.

January 2007. Sorry, sir. I misspoke if I said

December.

The telephone call, 1600, about 4

o'clock on 15th of January was when this all

started.

THE CHAIR: Just to make sure I am

clear, the 15th of December is now 15 --

THE WITNESS: No, 15 January, sir.

I apologize. If I said December, that was my

fault.

THE CHAIR: Of 2007?

THE WITNESS: 2007, yes, sir.

THE CHAIR: Thank you.

BY MR. LUNAU:



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the black binder again?

A. Sir.

Q. Turn to tab 43. I will give

you a second to read it.

This is an email that was sent by

Mr. Colvin in June 2006 to a number of addressees,

including a number of addressees within CEFCOM via

the C4 network.

A. All right, sir.

Q. Before readying yourself to

appear as a witness here, had you seen this memo

before?

A. No, sir. No, sir. In fact,

I didn't familiarize myself with Mr. Colvin's

testimony. I have never seen any of these, sir,

because I did not want to have false memory. I

didn't want to know what Mr. -- and I purposely did

not look at Mr. Colvin's reports to see -- which

would have caused me to make false responses to

you, believing that, Oh, I remember that, yes, I

do, when, in fact, I had never seen anything out of

C4.

Q. So today is the first day you

have seen this?

A. Yes, sir.


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Q. Okay. Now, if information

comes into CEFCOM over the C4 network, you do not

have C4 connectivity?

A. No, sir.

Q. So you cannot be an

addressee?

A. That's correct. They can do

what they do, and then we often do that of course

even in the military, is you see -- you know, for

example -- well, on tab 43, at the very --

underneath the security caveat, it says: CEFCOM G3

pass to Powell; J5, pass to Lizotte; J9, pass to

Rebenchuk.

So they could have said, J9 pass

to Provost Marshal, had they thought they wanted to

include me in this circle.

Q. And --

A. But, sorry, sir, to answer

your question, no.

Q. It adds some kind of direct

request in the body of the email that you

described. When information comes into CEFCOM via

the C4, who decides who should see that email or

who might have --

A. If it is not directive, then


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the J9 or even the recipient, so it is actually

broader than I had actually ever known. You know,

the J3 obviously had a C4.

He could say, Hmm, gee, I think

the Provost Marshal, I think the intelligence

officer, I think supply, you know, the logistical

officer, may need to see this.

So unless it is either explicit

they want somebody to see it, or it explicitly

directs that it is not for broader distribution, it

is in essence up to the -- it is a "need to know".

We use the term in the military, "the need to

know". Does the person have the security clearance

to see the information? Yes. Does he have a need

to know the information?

And that can sometimes, even

though he is not in the distribution, it could have

been informally passed to anybody to say, What do

you think about that? What is your advice on this?

Q. The email at tab 43 is

addressed to a number of individuals in CEFCOM, the

commander, the J2, the J3, the J5 and the J9.

A. Sir.

Q. Do you consider that the

CEFCOM Provost Marshal would have a need to know


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information relating to alleged abuse of detainees,

inadequacies of notification to the Red Cross,

those types of issues?

A. Yes and no, sir. The "yes"

answer is, yes, do I believe that we should be

aware of anything on abuse of detainees?

Absolutely. Let me rephrase that.

We should have situational

awareness of that so that we can make a decision as

to whether or not further action needs to be taken.

And, often, this is why I attended meetings was I

had no real dog in the fight, as we would say.

Like, I had no real need, but I needed to have

situational awareness of what was happening in

operations so that I could advise the commander of

this may be a police issue, or this may be a

military police issue, or this is something we can

help, or this is how we can help you, help you,

Commander, do your job.

As it relates to the notification

of ICRC, I clearly did not see that as my role,

sir. That is not the role of the military police.

It wasn't even in TSO-321A.

Our job was primarily to take --

the intake, the processing of the detainee, the


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turning of the information over to the POLAD, or

whoever was responsible for notification of the

ICRC, and then arranging for the transfer to Afghan

authorities. That was our responsibility.

I saw this clearly as a whole of

-- because it was a whole-of-government thing, once

I turned them over to the Afghan authorities,

unless there was a clear allegation, as far as I

was concerned, the military police responsibility

ended.

Q. You referred in one of your

previous answers to the articles by Graeme Smith in

April of 2007. Was that the first information that

came to your attention as Provost Marshal that

there were allegations of abuse of detainees?

Sorry, post transfer?

A. Yes, sir. It was the first

indication that we -- that in fact -- that I became

aware that there might be an issue.

Q. I would like to try to get a

sense of how you perceived the CEFCOM Provost

Marshal position within CEFCOM headquarters. It is

a little difficult to do that without making or

sort of putting a proposition to you and asking you

to comment.


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A. I will try, sir.

Q. Did you feel that the Provost

Marshal within CEFCOM was sort of marginalized?

A. As it related to detainee

operations, yes, sir.

Q. Can you --

A. But, once again, I didn't --

my 'spidey' sense did not tingle as a result of

that. My job, as I saw it, my focus, was to make

sure that Canadian soldiers -- because we were

living under the -- we understood the implications

of detainees. Most of us who were at CEFCOM lived

through the Somalia case.

We understood the implications

associated. So our focus was much more on: Were

soldiers abusing? And there was, you know, at this

point in time very few indications -- no

indications, at that time, that soldiers were

abusing detainees.

Once again, once we turned them

over to Afghan authorities, I saw it no longer as a

military police -- primarily a military police

responsibility, because we had Correctional Service

Canada in-house, in theatre.

Their job, as I saw it, was the


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professionalization of the prison system. They

were, would have been, in my opinion, the oversight

for the prison system.

If they had come back and said,

Yikes, we have a problem, we would have had to then

re-look at this.

THE CHAIR: Who are you saying is

"they"?

THE WITNESS: If Correctional

Service Canada personnel, sir --

THE CHAIR: Okay.

THE WITNESS: -- had said or Were

reporting back -- had reported back that there were

clear allegations or clear indications that there

was abuse or maltreatment of detainees.

But, clearly, because we saw this

-- because I saw this as a whole-of-government

operation, and I -- my military policemen had more

than enough to do to -- in their own -- with their

own responsibilities. We didn't really need to go

looking for work.

BY MR. LUNAU:

Q. Now, we talked a bit about

your own reporting to the Canadian Forces Provost

Marshal.


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A. Sir.

Q. These reports, the reports

that you did receive with respect to detainees,

were they routinely sent on to the --

A. Absolutely not, no, no.

Q. Can you say whether, during

the time you were the CEFCOM PM, all detainee

transfers by Canada were to the National

Directorate of Security in Afghanistan?

A. Not through the totality of

my time there. In fact, initially, Colonel Noonan

in his affidavit indicated that there was -- first

off, even 321A allowed for transfers locally for

minor issues. Initially there was, I think, more

robust transfers to the Afghan National Army,

because, of course, we tended to be doing -- for

the most part, we were doing joint operations with

them. Part of our role, in fact one of our primary

role, is the professionalization of the Afghan

National Army, so we were conducting operations

with them.

As part of that, if a detainee was

taken, the default setting, in fact very clearly

the orders were -- I think the orders were -- that

the Afghan soldiers were to take the detainee, and


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we would then monitor and mentor them on how the

detainee was taken.

If we happened to -- a Canadian

soldier happened to take somebody, it would be

turned over routinely to the Afghan National Army,

who was the Afghan authority. They were the Afghan

authorities. We were there in support of them, as

we saw it.

We would -- we had asked, and it

was in 321A, that notes, as detailed notes as

possible, would be taken to try to identify the

person, remembering that sometimes this was a

shooting operation and we didn't have a lot of time

to sort of sit down and write out notes.

And the other thing, and, again, I

just want to harken back to one of the emails, is

this is a very traditional society, and sometimes

identifying people is tough.

We often would get somebody in and

he would be Mohamed, son of Mohamed, grandson of

Mohamed, you know, and so the actual identification

of people was sometimes difficult. They didn't

have routinely last names or they weren't known by

their last names. They didn't know when they were

-- when they were born, you know.


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So what was your birth date? I

was born the day after, you know, when Ramadan

ended, you know, some time ago. And that -- you

know, so sometimes the note taking wasn't as

judicious as Canadian standards might hope -- you

know, that you would expect of the Canadian

standards.

And it wasn't until later that we

really started to -- So then the post agreement,

then we started to bring -- except for those few

minor -- we brought all detainees back to KAF.

They were processed, and then they were sent back

-- then they were transferred and, for all intents

and purposes, back to the NDS.

Q. If I could come back a minute

to the "need to know".

A. Sir.

Q. We talked a bit about whether

you thought there was a need to know.

Just to follow up on that point,

in this case we have a situation where military

police are carrying out the hand-over or the

transfer of detainees.

Would that fact give rise to a

need to know on the part of the military police, if


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there were allegations that, after the MPs handed

them over to Afghan authorities, there was a risk

of abuse?

A. I wouldn't say -- and please

don't think me obstructionist. If there was a risk

of abuse, there might not be a need to know. If

there were allegations, bona fide allegations, then

that would really clearly be a need to know.

That's a little speculative and I

wasn't there when -- on the ground when the bullets

were flying. So it is a little hard for me to

answer clearly. But if there was just a risk, you

know, that's tough to say.

I mean, policemen turn prisoners

over to the Correctional Service Canada. There is

a risk that they may be mistreated. It doesn't

stop us from turning prisoners over to the

Correctional Service Canada.

Q. But in that scenario you

describe, where the police are being asked to do

something where there is at some level a risk that

is known, do you think the police should be --

A. I would have rather they

informed me, and then I could make a command

decision, a decision as to whether or not I felt it


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warranted further investigation. Not knowing,

though, it is -- you know, it's the Secretary of

Defence. It is stuff we know, stuff we don't know.

It is the stuff we don't know we don't know that is

the most dangerous.

Q. The unknown unknown?

A. Yes, the unknown, unknown,

absolutely, it is the most dangerous. As I say to

people, it is what kept me awake at night is, What

didn't I know that was getting by me? If I knew

it, then I made a decision as to whether or not I

should deal with it. I was good with that. I can

live with my decision.

It was the stuff I didn't know

that bothered me, that I wasn't allowed to put sort

of intellectual rigour on it and decide this is

something I should get -- I should be involved on.

Q. While we're talking about

Donald Rumsfeld, and in the realm of the unknowns,

were there known unknowns to you?

A. Were there known unknowns?

Q. There were things you knew

you didn't know that you should have known?

A. In hindsight, yes, sir.

Absolutely, yes, sir. And, once again, a lot of


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things -- even military people, a lot of

operational operators comment, don't understand

what the military police do. They really don't

understand the depth and breadth of what our

responsibilities are.

And so it's not a malicious

conspiracy. They just don't think to notify us.

That's why I often -- you know, would I go into

meetings not because I had something to offer or

something to do, but I needed the situational

awareness, as we say in the military. I needed the

situational awareness of what was happening so that

I could then provide my advice to the commander,

or, if need be, a directive to the Task Force

Provost Marshal waving my tech directive that says,

I can tell you to do something with a policing

side.

The difficulty, as I said, was I

was a -- one-trick pony is probably the wrong way

to say it, but I was a one-trick pony. I couldn't

get to everything.

Q. I read in one of the

documents, which I can't now put my finger on, but

I recall reference to a board of inquiry being

conducted from April 27 to May 2007 on the detainee


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issue.

A. Sorry. General -- Yes, sir.

Q. Do you have knowledge about

that board of inquiry?

A. No, sir. I was not called to

it. I was required, as I did with the MPCC, to

provide documentation to it, every bit of

documentation I had. Nordick, sir. General

Nordick was the chair.

We had a military police

representative on the board of inquiry.

Lieutenant-Colonel Sherman Hinze was the MP advisor

to the board of inquiry.

So I was just, again, a conduit to

provide documentation to it.

Q. Do you recall what they were

looking into?

A. I don't, sir, and I wasn't

privy to what they were looking into. All I knew

was that it was a detainee -- a board of inquiry on

the subject of detainees.

Q. Okay. Prior to the articles

by Graeme Smith that you referred to, were you

involved in or privy to any discussions within

CEFCOM about post-transfer abuse issues?


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MR. LUNAU: Yes, sir.

THE CHAIR: We will resume at

quarter to 11:00.

--- Recess at 10:28 a.m.

--- Upon resuming at 10:46 a.m.


MR. BERLINQUETTE: Thank you.

BY MR. LUNAU:

Q. Colonel Boot, we talked a bit

before the break about May 3, 2007 supplementary

agreement.

A. Yes, sir.

Q. And that agreement called for

monitoring of detainees who had been transferred to

be done by the Department of Foreign Affairs?

A. Yes, sir.

Q. As CEFCOM Provost Marshal,

did you consider that the military police had an

interest in that monitoring?

A. No, sir.

Q. Okay. Would you have seen it

as within the MPs' area of responsibility to

receive reports on the results of the monitoring?

A. I would have assumed that,

and I would have expected to be briefed, had they


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found anything untoward, but that would be about

the extent of it. You know, there's a saying in

the military, NATO, "silence procedures would

apply."

In other words, in the absence of

hearing anything, I assume everything is -- you

know, we assume that everything is going along

swimmingly.

Q. And in the period of time you

were there, and I appreciate you left in July

2007 --

A. Yes, sir.

Q. -- did you receive any

reports of the results of site visits?

A. No, sir.

Q. Just before the May 3

agreement, transfers were stopped for a period of

time?

A. Yes, sir.

Q. Were you aware of that

decision?

A. Yes, sir.

Q. Were you aware of the reasons

for it?

A. I wasn't made aware of the


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reasons for it, sir. I was able to deduce the

reasons for it.

Q. What did you understand the

reasons to be?

A. Until we -- because there was

some indication that the current, the existing, the

original agreement wasn't as robust as was expected

or as was hoped, this led us to have to redo the

agreement. And until we got the new agreement into

place, we stopped handing over detainees, because

we wanted to make sure that all of our procedures

were in place.

And we had to, of course, revise

some of our procedures, internal procedures, as

well.

Q. Are you able to tell the

Commission when, after May 3, 2007, those transfers

resumed?

A. I don't know the date, sir.

Q. Do you know the rough time

frame?

A. I don't, sir.

Q. Okay. If I could just refer

back to the Graeme Smith articles in April 2007?

A. Yes, sir.


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Q. When those articles came out,

were you tasked to make any kind of enquiries or to

take any actions in response to those articles?

A. The only thing we did was to

-- This relates to the thing --

MS. RICHARDS: Are you concerned

about sensitive information?

THE WITNESS: No, no. What we

discussed about just prior to --

MS. RICHARDS: Yes.

THE WITNESS: Am I allowed to --

MS. RICHARDS: Yes. There is

nothing sensitive in that.

THE WITNESS: We were --

THE CHAIR: When you say "we", who

are you referring to as "we"?

THE WITNESS: Oh, sorry. Counsel

and I just had a chat.

BY MR. LUNAU:

Q. You said "we were tasked"?

A. Sorry, I apologize. We, sort

of the G3 and Provost Marshal, the G3 organization,

the Provost Marshal, were tasked to confirm whether

or not the people who were making allegations or

were the subject of the reports, Mr. Smith's


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reports, had they actually been in our custody at

any point in time.

So it was a question of, Were we

-- did we ever have them in our custody?

So there was -- Mr. Smith, I think

his article addressed, related to, a dozen or 20

people. And we were told to go back and find out

who of these did we -- had gone through our

transfer facility.

Q. And were you able to confirm

whether any of those --

A. We were able to confirm some

of them were. I don't believe all of them were --

had been at the detention or at the transfer

facility, but I know some of them had.

Q. When you had confirmed that

some of the detainees in Mr. Smith's article had

gone through the CF facility, are you aware of any

further investigations being done to determine if

the reports of abuse were correct?

A. No, sir.

Q. Was Major Hudson one of the

Task Force Provost Marshals during your tenure?

A. Yes, sir.

Q. Did he ever have any


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discussions with you where he raised concerns that,

under the Geneva Convention, the CF might be

responsible for detainees after they had been

transferred?

A. Nothing that related

specifically to this issue, sir. Part of

professional development, you know, and we always

talk about the treatment and handling of detainees,

and we were very, very conscious of it, of course,

as I said. But, again, our focus was more on the

pre-transfer handling of the detainees, because we

were, again, living under the -- you know, with the

Damocles sword of Somalia always hanging over our

head and understanding the implications if there

was ever any indications that the CF was

responsible for -- for mistreatment.

Q. And just so people here are

aware, the Somalian inquiry involved a case of

abuse of an individual while he was in the custody

of the CF?

A. Yes, sir, and ultimately the

death of that Somalian.

Q. Right. Now, I would like to

just ask you a few questions based on your lengthy

experience as a military police officer.


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A. Sir.

Q. And they have to do,

generally, with the duty of military police to

investigate offences or allegations of offences.

A. Yes, sir.

Q. When, in your view, would a

member of the military police have a duty to self

initiate an investigation?

A. If there was -- and, again,

it is tough to speculate, in the sense that you

take almost each case on its own merits.

In my opinion, if there is

credible -- if the source or there is credible

allegations, I guess, that an offence had occurred

or the person making the allegations was a credible

source or had a vested interest in making the

allegation. Is that enough detail, sir?

I mean, I would literally have to

understand the circumstances surrounding the

situation before I would make that determination.

Q. Okay. To put a specific fact

situation forward and ask for your comments on it,

we talked about the Graeme Smith article --

A. Sir.

Q. -- and the enquiries which


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disclosed that or confirmed that some of the names

listed in Mr. Smith's article had, at one time,

been in CF custody.

A. Yes, sir.

Q. Would that be information

that would be sufficient to cause the military

police to self-initiate an investigation?

A. I wouldn't have thought so,

sir, no.

Q. In your position as CEFCOM

PM, did you at any time during your tenure obtain

information that you considered would have

justified an investigation into the transfer of

detainees?

A. No, sir.

Q. Those are all of my

questions. Thank you very much, Colonel Boot.

A. Sir, thank you very much.

THE CHAIR: Ms. Pastine.

CROSS-EXAMINATION BY MS. PASTINE:

Q. Thank you.

Lieutenant-Colonel, my name is

Grace Pastine. I represent the BC Civil Liberties

Association and Amnesty International.

I wanted to start off by asking


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you a few questions about the role of the military

police in regards to detainees. You already spoke

about this a bit briefly, and I will try not to ask

the same questions that Commission counsel has

already asked.

Now, you -- in response to some

Commission counsel's questions, you stated that

traditionally the military police have had an

important responsibility for detainees?

A. Right, yes.

Q. And that central to that

responsibility is the notion of keeping detainees

safe and out of danger?

A. Yes.

Q. Now, I understand there is a

document called military police doctrine. Are you

familiar with that document?

A. There is a document called

military police in battle. And, yes, I am aware of

it, yes.

THE CHAIR: Is that the same

document, the military police in battle, as the

military police doctrine?

THE WITNESS: Yes, sir. For all

intents and purposes, yes.


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THE CHAIR: Just the name?

THE WITNESS: "Doctrine" is just

an overarching philosophy of how the military

police are employed, and the military police in

battle is, in essence, a little bit more detailed

on -- puts a little meat to the skeleton of

doctrine.


BY MS. PASTINE:

Q. So you already partially

answered this, so could you give the Commission a

general sense of what military police in battle,

what that document covers, just generally speaking?

A. It really does give -- it is

a lit

Documents

Hearing Transcript - April 15 2010 - FULL DAY