What are they thinking?

I'm no lawyer. But with that out of the way, I'm wondering what the hell Colonel Gleeson and his fellow JAG officers are thinking with this move:

The Department of National Defence says it doesn't believe a military watchdog has jurisdiction to look into a complaint about the handover of prisoners in Afghanistan.

The dispute may end up in a court showdown between DND and the Military Police Complaints Commission. If DND refuses to co-operate in its investigation, the commission says, it may be forced to hold public hearings.

In a letter, DND says it is set to seek a judicial review, but has given chairman Peter Tinsley until Monday to explain why the commission accepted the complaint from two civil-liberties groups.

...

In the letter -- written by Colonel Patrick Gleeson, from the office of the judge advocate-general -- DND counters that "we cannot see how this particular complaint relates to the commission's mandate."

The letter was copied to top brass including the Chief of the Defence Staff, General Rick Hillier.

The complaint looks at "a high-level, multi-departmental Government of Canada policy regarding the transfer of detainees . . . required to be followed by all [Canadian Forces] members involved in the handling of detainees, not just the military police," the letter states. As well, Col. Gleeson writes that the complaint appears based on the "hypothetical determination" that a prisoner might have been tortured, or might in the future be tortured, "with no evidence or even an allegation" that this has happened.

Y'know, one of these days, it would be nice if the Globe & Mail would start posting the actual source documents for us to review instead of just offering us snippets and interpretations. Facilitate, folks, don't gatekeep.

I'd like to see the Colonel's entire letter to the MPCC because, for the life of me, I can't figure out the Judge Advocate-General's argument from the tidbits put forward in the G&M piece.

Here's the MPCC's mandate, according to the Commission's website:

The Commission was established as a quasi-judicial, independent civilian agency to examine complaints arising from either the conduct of military police members in the exercise of policing duties or functions or from interference in or obstruction of their police investigations.

To carry out this mandate, the Chair has the power to investigate, to cause the Commission to conduct an investigation, convene public hearings, report its findings and make recommendations based on those findings. Depending on the circumstances, these findings and recommendations are submitted to designated senior officers in the Canadian Forces, the Deputy Minister of National Defence, and the Minister of National Defence.

Following are the relevant passages in the National Defence Act, as I see them:

250.18 (1) Any person, including any officer or non-commissioned member, may make a complaint under this Division about the conduct of a member of the military police in the performance of any of the policing duties or functions that are prescribed for the purposes of this section in regulations made by the Governor in Council.

(2) A conduct complaint may be made whether or not the complainant is affected by the subject-matter of the complaint.

...

250.38 (1) If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

The complaint was based upon conduct, so it seems to me that those who brought it to the MPCC had a right to do so.

As far as what constitutes a "policing duty," here are the relevant regulations:

(1) For the purpose of subsection 250.18(1) of the Act, any of the following, if performed by a member of the military police, are policing duties or functions:

• the conduct of an investigation;


• the rendering of assistance to the public;


• the execution of a warrant or another judicial process;


• the handling of evidence;


• the laying of a charge;


• attendance at a judicial proceeding;


• the enforcement of laws;


• responding to a complaint; and


• the arrest or custody of a person.

(2) For greater certainty, a duty or function performed by a member of the military police that relates to administration, training, or military operations that result from established military custom or practice, is not a policing duty or function.

It seems pretty clear to me that matters pertaining to the custody of a detainee would be covered under the MPCC's mandate.

So, again I wonder: what's the JAG's argument here?

Now, don't get me wrong - I think this is a backdoor way to complain. That is to say, the individual MP on the ground at KAF who is aware of a detainee agreement signed by the CDS and endorsed by his national government and his chain of command to turn detainees over to the legal representatives of the Afghan government, and follows orders by adhering to that agreement and the procedures relating to it, isn't doing anything wrong. If the complainants have any beef worth debating, it's the policy itself, not the conduct of the MP's.

But lawyers are trained to find loopholes, and the MPCC route is certainly a loophole in this case, since the Military Police are the ones actually executing the transfer policy at the pointy-end.

Besides, what a PR nightmare. DND comes across as bullying an independent watchdog organization. And stifling the Commission - which really is reaching beyond the intent of it's power with this investigation, although it's within the "letter of the law" of its mandate to do so - doesn't make the detainee transfer issue go away.

No matter if JAG wins this battle, it will have no positive effect on the PR war. Indeed, I suspect it may have the opposite effect on public opinion. Bad call, gents.

Update: MP 00161 commenting over at Army.ca presents the other side of the argument here and here. Both threads are worth reading. I remain unconvinced of the wisdom of this course of action by the JAG lawyers, but I can now see where they're coming from.