Parliament Will Fight

We are not yet in a constitutional crisis over the government's refusal to release the Colvin memos to PARLIAMENT, but we probably should be.

This article was originally published in Maclean's Magazine on January 4, 2010

We are not yet in a constitutional crisis over the government's refusal to release the Colvin memos to PARLIAMENT, but we probably should be.This article was originally published in Maclean's Magazine on January 4, 2010

Parliament Will Fight

We are not yet in a constitutional crisis over the government's refusal to release the Colvin memos to PARLIAMENT, but we probably should be. A secretive and overbearing government has turned an ordinary political dispute into an extraordinary confrontation over the powers and privileges of Parliament. Unless some compromise is found, Parliament will fight, and Parliament will be right.

What began as a manageable controversy over the HARPER government's faltering attempts to deal with a problem it inherited from the LIBERALS - what to do with the prisoners our forces captured in AFGHANISTAN - has been transformed, via the CONSERVATIVES' reflexive paranoia and insularity, into a full-blown political debacle, complete with martyred whistle-blower, outraged former ambassadors, self-correcting generals, and befuddled ministers. And running throughout, a drumbeat of press reports contradicting virtually every aspect of the government's story.

It now appears, contrary to the government's repeated assurances, that at least some of the prisoners we transferred to the Afghan police and security services were tortured, or at least abused; that at least some of our troops knew this; and that serious concerns about the treatment of these prisoners, and about our own procedures for reporting on their whereabouts, were relayed to government and Defence officials, not only from Richard Colvin, the diplomat at the centre of the storm, but from multiple sources.

None of this is evidence of a deliberate policy of transferring prisoners for torture, or even negligent disregard of their probable fate - the stuff of WAR CRIMES charges. Neither can we say for a fact that senior officials knew prisoners were being mistreated. The facts, at least so far, remain consistent with a story of officials' evolving awareness of the seriousness of the problem, and of the inadequacies of their initial responses.

It was, after all, at Canada's insistence that an agreement was first struck with the Afghan government in December 2005, requiring that any prisoners be treated humanely according to the Geneva Conventions, and ensuring access to Red Cross inspectors at any time. As the weakness of that agreement became apparent, a new arrangement was struck in February 2007 providing for the Afghan Independent Human Rights Commission to make inspections as well. Corrections Canada officers were flown over to make recommendations for improving Afghan prisons. And when even that proved deficient (the AIHRC complained it was being denied access), after the publication in April 2007 of prisoners' allegations of mistreatment the protocol was changed yet again, to provide for inspections by Canadian officials.

It is legitimate to ask why it took so many months for the Harper government to arrive at the same protocol that was insisted upon by the British and Dutch forces from the start. It is equally legitimate to ask why the previous Liberal government did not simply hand any prisoners taken over to the American military, rather than gamble on the prison system of a country whose notion of justice might charitably be described as medieval. Even allowing for the confusion that typifies any war zone, let alone Afghanistan, the answers might well have reflected poorly on both governments.

But whatever controversy might thus have been aroused would have been nothing like the firestorm in which the Conservatives now find themselves, owing entirely to their refusal to allow the evidence to come out - a policy that, whatever its motives, has only fed suspicions of wrongdoing. If the government has nothing to hide, it sure seems determined to hide it.

It is not only Parliament, we should recall, that the government has been stonewalling. Colvin's sensational appearance before the Commons special committee on Afghanistan only came about after the chairman of the military police complaints commission, Peter Tinsley, discontinued hearings into the treatment of Afghan detainees in the face of the government's persistent refusal to release the relevant documents to the commission.

Obstructing the work of a quasi-judicial commission is one thing - regrettably, hardly unusual in this country, where the shutdown of the Somalia inquiry caused barely a ripple. But refusing a Commons committee's demand for the documents - and, more remarkably, last week's vote of the full House - is another thing again.

This is hardly a "fishing expedition," after all. The Colvin memos, in particular, are clearly relevant to some of the central questions in dispute: what happened, what the government knew, what it should have known. If nothing else, they go, as the lawyers say, to the question of credibility. Colvin told the committee he warned his superiors, repeatedly, that Canadian-transferred prisoners were being tortured; his superiors, military and civilian, testified they received no such warnings - that, indeed, the memos said no such thing.

The release, after much delay, of the "redacted" memos, did little to resolve the question, so many and extensive were the blacked-out portions: much as other documents were blacked out before their release. The defence offered by the government, of national security concerns, is a legitimate one in principle. But whatever benefit of the doubt the government might have enjoyed has been diminished as we learn what some of the redactions conceal.

Much controversy, for example, was aroused by the publication of a Canadian soldier's field notes describing the capture and transfer of an Afghan prisoner who, it later emerged, was beaten by the Afghan National Police - in particular, by the following passage: "We then photographed the individual prior to handing him over, to ensure that if the ANP did assault him, as has happened in the past, we would have a visual record of his condition ." (Emphasis added.) In the version released to the MPCC, the same document reads: "We then photographed the individual prior to handing him over [redacted]."

So we need to see the documents, in unedited form. Or rather, Parliament (technically, the House of Commons, but I'll use the shorthand) has demanded to see the documents. With that, and with the government's brusque rejection of its demands, the dispute has entered an entirely new stage. It is difficult to overstate the importance of what is at stake. It is no less fundamental than whether the government is answerable to Parliament - the bedrock principle of our system of government. That's not only a political matter. It's also, arguably, a legal one.

I say arguably, because legal scholars appear to be divided. There is no debate that Parliament has the power to subpoena records and compel witnesses, one of a broad array of powers and immunities known as parliamentary privilege. What is in question is how far these apply to government officials - that is, to the Crown.

Some, such as Patrick Monahan of Osgoode Hall law school, accept the government's argument that it is bound by statute not to release the redacted information, notably by the Security of Information Act and the Canada Evidence Act. If Parliament would like to make an exception to these laws, runs the argument, it is obliged to amend the legislation. Others, such as McGill's Stephen Scott, emphasize Crown prerogative as a limiting factor on parliamentary privilege. Whatever powers Parliament may have to demand documents, he argues, they are not sufficiently explicit to override the Crown's.

The Commons law clerk, Rob Walsh, takes the opposite view. In a strongly worded exchange of letters with the Department of Justice, Walsh puts the onus the other way around: in the absence of a specific exception in the statutes, the general presumption of parliamentary privilege should apply. If Parliament had wanted the Canada Evidence Act to limit its right to compel evidence, it would have said so. In fact, the parliamentary secretary to the justice minister at the time was at pains to spell out in debate that the intent of the bill was that "Parliament's privilege to send [for] persons, papers and records not be affected."

But Walsh's views are mild, compared to those of Derek Lee. The lawyer and Liberal MP could fairly be said to have written the book on this issue - literally. The Power of Parliamentary Houses to Send for Persons, Papers & Records: A Sourcebook on the Law and Precedent of Parliamentary Subpoena for Canadian and Other Houses, his 1999 opus, would seem to have been written in anticipation of just such a dispute. Lee himself is categorical: Parliament's powers in this respect are absolute and total, even with regard to government officials. "There is no barrier - none." Well, short of summoning the Queen.

How should Parliament respond to the government's apparent rejection of its demands? Lee is unequivocal. "There are only two or three times every century when parliaments have an opportunity to benchmark their powers," he says. "This is one of those moments in time, when Parliament says the king must submit to the will of the people's House."

The matter won't be settled in court, he vows: indeed, the courts will not even look at it. Rather, he intends to move a motion asserting parliamentary privilege just as soon as the House returns. Should the Commons vote to find the government in contempt, it has a range of punishments at its command, even as far as banishing the Prime Minister from the House. And should the government deem this a confidence vote? "This is so fundamental it's not even a matter of confidence. Parliament might not allow itself to be dissolved, and the Governor General should be aware of this."

It needn't come to that, of course. No one is suggesting the documents should be released to the general public. So far as national security concerns are an issue, committee meetings could go in camera. Committee members could be required to swear an oath not to disclose the evidence they received, as is the practice in other democracies. As it happens, Lee is the sponsor of a private member's bill that would set up a national security committee on these lines, reviving a government bill that died with the 2006 election. He has written the Prime Minister asking his support for the legislation. Now would seem a good time for the PM to respond.

Maclean's January 4, 2010