- Reaction score
E.R. Campbell said:
Here, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s Globe and Mail is a very slightly off topic aspect of the detainee imbroglio:
size=14pt]MPs join forces to order release of Afghan records[/size]
Rare motion orders Tories to release confidential documents on detainees, a scenario that could call rights of Parliament into question
Steven Chase and John Ibbitson
Friday, Dec. 11, 2009
Opposition parties have set the stage for a confrontation pitting the rights of Parliament against national security concerns by forcing through an extremely rare Commons motion ordering the Harper government to release confidential records on detainees captured in Afghanistan.
The Liberals, NDP and Bloc Québécois, which together outnumber the Harper Conservatives in Parliament, passed a motion by a 145-143 vote that seeks to compel the release of thousands of uncensored documents on Afghan prisoners.
If the Conservatives ignore the order, as expected, opposition parties could vote to find the government in contempt, sparking a battle that might result in the courts being asked to weigh the limits of parliamentary privilege.
Ministers or other MPs found in contempt could be admonished and embarrassed by being compelled to appear before the Bar of the House – the floor of the Commons – to face a grilling from MPs.
But this House order-to-produce is a rarely used power and one that is in potential conflict with laws – such as those concerning privacy and national security – that Parliament itself has passed.
The Commons adjourned Thursday night and the debate will continue outside the House until it reconvenes in January.
The Tories have been on the hot seat since Nov. 18, when diplomat Richard Colvin alleged that likely all detainees captured by Canadian soldiers were tortured after being transferred to Afghan hands in 2006 and early 2007. But the Conservatives have resisted all demands to release uncensored copies of the documents on detainees.
However, the opposition is now emboldened after stunning military revelations on Wednesday that a Canadian-captured detainee was abused in June, 2006, after being handed over to the Afghans – contrary to Tory government assurances that there was no evidence prisoners were tortured.
The Harper government responded to Mr. Colvin's testimony with a series of attacks on his credibility, an onslaught that this week brought a letter of protest from former ambassadors against the diplomat's treatment.
On Thursday, the number of former ambassadors putting their names to the letter climbed to 95. The open letter castigates Ottawa for dismissing Mr. Colvin's 2006 and 2007 torture warnings as irrelevant and suspect – a move ex-ambassadors fear casts a chill over the foreign service's ability to report frankly from abroad.
“I have never seen foreign-service officers come together like this before in my life,” ex-ambassador Gar Pardy, an organizer, said of the effort.
The list, now approaching 30 per cent of all retired Canadian ambassadors, in the last day signed up ex-heads of mission such as former Liberal cabinet minister Allan Rock and James Bartleman, who once served as Ontario's lieutenant-governor.
During a debate on the opposition motion to produce documents, Defence Minister Peter MacKay warned divulging confidential records would jeopardize Canada's troops by revealing things that “could be helpful to the enemy.”
But Liberal MP Ujjal Dosanjh said opposition parties are prepared to take steps to safeguard the documents and protect the information.
“The government can't act like a dictatorship where Parliament is not supreme any more,” the Liberal MP said.
The motion the opposition parties passed says they are relying on what they call the “undisputed privileges of Parliament under Canada's constitution, including the absolute power to require the government to produce uncensored documents when requested.”
Ned Franks, a constitutional expert and professor emeritus at Queen's University, warned that Parliament might lose out if the dispute ever reaches the courts because judges could rule that MPs have to respect secrecy laws. He said he'd like to see “one side or the other back down” instead of the Tories being forced into a corner.
“My guess is the government will say no and then you get into something that the House of Commons has really tried to avoid for many, many years – that somebody might want to refer this to the courts,” Prof. Franks said. “And then courts would be ruling on parliamentary privilege.”
Bloc Québécois Leader Gilles Duceppe vowed to use Parliament's power to force the government to release records.
“We will push this for as long as it is possible,” he said.
But Foreign Affairs Minister Lawrence Cannon maintained the government is bound to respect those parts of the Canada Evidence Act that safeguard national security.
“That's the law, and we abide by the law,” he said.
The dispute is reflected in duelling legal opinions between Parliament, whose officers are independent of the government, and the Justice Department, over whether Parliament itself is bound by the statutes – such as the evidence act – that it passes.
The Justice Department is arguing in a letter circulated by the Tories that there are legislated limits to what can be released under privacy and security laws that politicians must respect. But Robert Walsh, Commons law clerk, has countered that MPs in parliamentary committees have the power to read uncensored documents.
Canadian courts traditionally have been wary of wading into disputes over the rights and powers of Parliament. Unless a political resolution can be found, however, they may have no choice.
Separately, the opposition plans to keep the pressure on the Tories by restarting parliamentary hearings on the Colvin affair early in January, far before the House resumes sitting. And a military watchdog agency plans to resume separate hearings into the detainee issue next March. But critics fear that a new chair the Tories plan to appoint for the Military Police Complaints Commission will not be as keen to probe the matter as was the departing head, Peter Tinsley. His tenure ends today and the Tories have declined to extend it.
Now, my understanding – which may be deeply flawed – is that Canadian parliamentarians do not, automatically, get any security clearance just because they are elected. (Can one of our resident lawyers confirm or deny that for me, please?)
(Parenthetically: I suspect the US has some formal mechanism to provide (nearly?) the highest clearances to some (most? all?) legislators. When Canadian MPs are sworn in to the Privy Council, as ministers, they do have clearances for some information. Hasty security clearances are done at the behest of the PCO. Note: I am pretty nearly absolutely certain that, here in Canada, the highest security ‘clearances’ (there are levels above Top Secret) are rarely shared by more than a tiny handful of people and never with politicians or senior bureaucrats who never have a “need to know.” I will guarantee that a few decades ago it was normal for the CDS (and most admirals and generals) to have no ‘need to know’ about great masses of very, very highly classified stuff. I am pretty sure they were 99.99% disinterested, too.)
But this is important because parliament has enacted laws about security – some with pretty stiff penalties. Now parliamentarians demand that the government disobey parliament’s own laws. What fun.
I hope, in a slightly perverse way, that the Conservatives ‘surrender’ and provide the uncensored documents because then one of two things could happen:
1. The senior officials or military officer who actually sends the documents can be afrrested and charged with a very serious offence – releasing classified information to people who are not allowed to receive it. The resulting court case would, eventually, I think, tell parliamentarians that being elected still makes them nobodies – unless they are ministers; or
2. I am absolutely certain, Ujal Dosanjh will be proved wrong – someone, maybe a Bloquiste, maybe a Liberal, maybe a Dipper – they are all equally irresponsible – will leak the documents and Canada’s national security and global trustworthiness will be badly damaged and once again the inherent worthlessness of parliamentarians will be proven. It may then be possible to try some (several) parliamentarians with some pretty serious crimes and, once again, let the courts deal with a key issue. In either case the rules governing parliamentary privilege will be clarified.
E.R. Campbell said:As a follow up: just a few minutes ago, on CBC Radio's The Current stand-in host Linden MacIntyre said to Conservative MP Laurie Hawn (Parliamentary Secretary to the MND) something like "the opposition wants the uncensored documents so we can all see what happened." The media knows, with absolute certainty that whatever is given, in confidence, to parliamentarians WILL be leaked to the media.
Now we have two interesting, albeit contradictory opinions from two qualified observers, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s Globe and Mail web site:
[size=14pt] A fundamental test for Stephen Harper
Friday, December 11, 2009
One of the great principles of English liberty, upon which our system of government is founded, is this: no parliament may bind a future parliament.
It therefore will not do for Prime Minister Stephen Harper and his cabinet to assert that the House of Commons cannot have the documents it demanded this week, because producing them might violate some law a predecessor parliament past long ago.
Parliament is supreme in our system of government, subject to the Charter of Rights. Which is not in our constitution to protect war criminals from justice, or ministers from scrutiny. The Prime Minister and his cabinet are accountable to the House of Commons. The House demanded yesterday that its own ministers table, unexpurgated, the documentary record relating to the abuse of enemy combatants in Afghanistan who fell into our country's power.
The ministry must now do this.
Some important constitutional issues arise from the Prime Minister's conduct a year ago, as I argued in this space earlier. But there is no exceptional circumstance here. The nation is not at risk of being controlled by the separatists and the socialists today. What we have here is a straightforward test of whether or not we are governed in a system of responsible government.
And so, whether or not this issue will be "a ballot question," this is a fundamental test of the character, principles, and judgement of Prime Minister Stephen Harper and his colleagues.
In 1996, Stephen Harper and Tom Flanagan wrote an article in Next Cityentitled "Our Benign Dictatorship" (you can find a copy here). This important article rewards a careful read on many issues.
But the issue today is this: do any of Mr. Harper's principles survive?
Or has he been so corrupted by his brief time in the executive suites of Ottawa that he has become the agent for the final victory of all the faults of our national government, discussed in that article?
Is his historic role to help reform our increasingly secretive, irresponsible, and undemocratic national institutions - as he claimed? Or the exact opposite?
Update My equally esteemed blogging colleague Norman Spector hasentered this discussion with what I will respectfully suggest is a straw man. He reports correctly that old laws are in force until replaced by new ones. And somehow suggests this means the government can defy a direct order from Parliament to surrender documents that Parliament requires in an inquiry.
I don't think so, colleague. The government can throw up procedural roadblocks of course. But Parliament can (through the slow working of its own machinery, including its right to vary existing law) require its own ministry to surrender documents it deems appropriate. Arguably Stockwell Day and his cabinet colleagues are in contempt of Parliament today.
And here is the second item, the Norman Spector blog, about which NDP insider Brian Topp wrote in his Update:
Political Science 101
Friday, December 11, 2009
I see that my esteemed blogging colleague Brian Topp is arguing that the government cannot deny the opposition parties access to documents because one parliament cannot bind a future parliament.
With great respect to Brian, he misconstrues both the nature of Canadian government and the issue that is raised by the current controversy.
In Canada, a law duly enacted by one parliament continues to apply until and unless it is amended by a subsequent parliament. In the current controversy, MPs are claiming that the law does not apply to them because of parliamentary privilege.
In my days in government, I can recall MPs taking the position that non-smoking regulations in federal buildings did not apply on Parliament Hill — a position that provoked considerable mirth in Ottawa. Today, they are on more solid political ground in demanding access to unredacted documents regarding the transfer of detainees. However, before they insist that the Canada Evidence Act and the Privacy Act do not apply to them, they would be wise to heed a warning in today’s Globe:
“Ned Franks, a constitutional expert and professor emeritus at Queen's University, warned that Parliament might lose out if the dispute ever reaches the courts because judges could rule that MPs have to respect secrecy laws. He said he'd like to see ‘one side or the other back down’ instead of the Tories being forced into a corner.
‘My guess is the government will say no and then you get into something that the House of Commons has really tried to avoid for many, many years – that somebody might want to refer this to the courts,’ Prof. Franks said. ‘And then courts would be ruling on parliamentary privilege.’”
Personally, I’m still hoping that the Conservative government will put the whole matter of detainee transfers and the allegations of torture before a judicial inquiry. But if it refuses, and MPs insist, I have no doubt that the Supreme Court would make short shrift of the argument that the Canada Evidence Act does not apply to MPs. Besides, not to put too fine a legal point on this, do Jack Layton and Michael Ignatieff really want to make the argument that secrecy provisions and national security laws do not apply to Gilles Duceppe and members of his caucus?
Update I’m pleased to see that Brian Topp is no longer invoking the principle that parliament cannot bind a successor parliament — which, frankly, is irrelevant to the current discussion. And that he accepts that duly enacted laws continue to apply until they are amended or replaced. Or, I should add now that we have this agreement, until and unless they are struck down by the courts.
As currently drafted, both the Privacy Act and the Canada Evidence Act apply to MPs as they do to all other Canadians.
If MPs want to argue that they are above the law because of parliamentary privilege, the government would be within its rights to refer the matter to the Supreme Court of Canada, and the Court would be obliged to hear the matter. As Professor Franks suggests, however, the opposition parties may wish to consider the risk of testing the scope of parliamentary privilege in court.
In the meantime, having been burned badly about a year ago and with Canadian soldiers in harm’s way, the Liberals and NDP should consider very carefully the politics of arguing that Gilles Duceppe and his caucus are above secrecy provisions and national security laws.
I repeat: this is an important matter. It is Constitutional – with a very big C rather than just political. It speaks directly to both parliament’s ancient and hard won rights and parliament’s equally ancient (but too oft’ forgotten) duties.
Maybe it will help to clarify both the rights and responsibilities of our elected leaders – relative to their sovereign and towards her servants, especially to the members of her Canadian Forces.
The issue is national security. But, clearly, the media, based on past performance, expects Ujal Dosanjh et al to swear to safeguard the documents and then, almost immediately, to break their solemn oaths and leak them. The government is right to refuse the HoC’s demand – I hope.