MPs, Detainees, and the NDP's Misplaced Anger

The Speaker made the right call in approving the deal to allow a small group of MPs to review documents relating to the transfer of Afghan detainees.

The Speaker of the House of Commons, Peter Milliken, has approved the deal struck by the Conservatives, Liberals, and Bloc Québécois that will give a small group of MPs access to the mountains of documents relating to Afghan detainees. The NDP, however, has refused to take part, claiming that the agreement prevents critical documents from ever being seen by MPs. This, they say, is in violation of Milliken’s historic ruling of April 27, which confirmed that MPs should be given unfettered access to uncensored detainee documents, as long as they respect the national security interests of the country.

The NDP had asked the Speaker to reject the last minute agreement as falling short of his original ruling, but Milliken approved it anyway on the basis that the substantial majority of the House had signed it. With that, attention turned to what the NDP says undermines the ability of MPs to find the truth about the alleged transfer of Afghan detainees to be tortured.

Their argument, based on the wording of the text, is that the agreement prevents MPs from accessing documents that are classified for reasons of cabinet confidences or solicitor-client privilege. The NDP claims that these exclusions could prevent the disclosure of documents that reveal that the cabinet, other government officials, and top military leaders knew that they could be in violation of the Geneva Conventions.

Experts have differing opinions as to whether the NDP has correctly assessed the ineffectiveness of the agreement. Michel Drapeau, a retired colonel and a professor of military law, has argued that cabinet confidences should be protected to allow for in-depth deliberation of important issues by the top decision makers in the country, and to allow officials to give “unvarnished advice” to the cabinet. Drapeau does, however, note that there should be a way to waive solicitor-client privilege under certain circumstances, as occurred in the U.S. regarding the infamous torture memos written by lawyers serving under the Bush Administration. Other critics assert that the smoking gun is most likely to be found in advice, legal or otherwise, given to the prime minister and others in the cabinet.

These fears do not seem to take into account the actual wording of the agreement, which allows the small number of MPs on the Review Committee to see any documents they consider relevant to their work. It is only when the government objects to the disclosure of those documents to other MPs and the public on the grounds of protecting national security, defence, or international relations that the final decision will be made not by the government, but by three arbiters who will likely be respected jurists.

My reading of the critical paragraph 7 of the agreement relating to the disclosure of cabinet confidences and solicitor-client privileges is that in such situations the arbiters have unprecedented power to determine how the information contained in the excluded documents can be released without compromising these confidences. Given that the Supreme Court of Canada ruled on the same day as Milliken approved the agreement in an unrelated case that solicitor-client privilege is substantially absolute, the NDP position is not without counter-arguments.

The part of the agreement that may cause some concern are a number of ambiguous provisions regarding the extent to which MPs on the Review Committee can either “directly or indirectly disclose any of the information which is protected from disclosure.” If this amounts to gagging the MPs on the Review Committee from disclosing to the House of Commons and relevant authorities that they have discovered a clear breach of the Geneva Conventions and possibly Canadian laws, then indeed the concerns would be justified.

However, it is highly unlikely that in this situation the two opposition parties, who will be front and centre in broadcasting the smoking gun, will be prevented from holding the relevant persons to account. This could include requesting an official investigation into the potential violations of the Geneva Conventions and Canadian domestic law.The NDP should be prepared to change their minds once the Review Committee begins their work.