Friday, May 14, 2010

Nothing Settled

First off, it's a victory for the opposition, in the sense that MP's will view the detainee documents in their uncensored form. This deal is also a victory for Parliamentary supremacy, in the most general sense. BUT, in reality, there is still much to be determined, and given past government stalling tactics, nobody should see today's agreement as a conclusion- in fact, this is just the beginning of a long, contentious process.

The gigantic unknown, what exactly will be the composition of this "panel of arbitrators". It seems fair to believe the government MP will fight tooth and nail, which means any agreement within the MP review is unlikely. This assumption dictates that almost every sentence will move to this panel of jurists, and they will have final say, their verdict CAN'T be appealed. I note Nicholson has already stated that the redacted portions have already been reviewed by a third party, and he seemed quietly confident that much will remain hidden.

I see stalling tactics, no true resolution for months and months. In fact, this process doesn't even begin until this Parliamentary session is almost over, then we have summer break, leaving the real debate until the fall. If you believe an election is probable by the next budget, it's entirely reasonable to suggest the government has effectively buried this issue until after the next vote. It's for this reason, that I find it hard to get terribly excited about this agreement- and it also helps to explain why the government agreed.

In essence, while the opposition MP's have won the right to view, they are still under the control of a panel, which will have a subjective component. WHO these people are is paramount. For example, Iacobucci has a paper trail on these issues, and has shown himself to be sympathetic to redactions. It's imperative that we have full public disclosure of the "candidates" prior to their appointment, so we can be sure of impartiality. There is a great unknown here, and for that reason nobody can say anything with certainty.

The sheer mass of material, coupled with entirely available stall tactics for the government MP, mean that in the short term, the government is satisfied. We may get to the truth here, but one wonders if the delays will succeed in distracting, or that any political price will be paid. The opposition didn't sell out, certain rights confirmed, but the more I think about this deal, the more it tells me that nothing is settled.

27 comments:

RuralSandi said...

Read Kady O'Malley - the NDP have already issued a press release that is totally political and attacking Cons and Libs.

...sigh.......

Layton, to me, has already breached the cooperative, non-partisan mood of making parliament work.

Greg said...

I'm with you Steve. This is a total capitulation by the opposition. Harper wins again.

Steve V said...

Where exactly did I say that Greg? Geez.

JimBobby said...

The tragedy is that we've been told by numerous credible NGO witnesses that the torture of detainees is continuing today. We are not monitoring the Afghan jailers as our flimsy agreement says we can. They are getting advance notice of monthly inspections.

While the stalling continues, the torture continues. By the time the documents are vetted by the panel and the arbiters, we will be out of Afghanistan. What national security excuses will they have then?

Those who claim that we needn't worry about terrorists that we are sending to be tortured fail to comprehend that corruption and bribery and hostage taking for ransom have been part and parcel of the Afghan economy and culture for centuries.

Afghan police and army are paid less than a living wage: $4 a day. They rely on bribes to supplement their income. The detainees are tortured until a family member pays sufficient bribe and then they are released. Many are taken prisoner on the mere say-so of a feuding neighbour that they are Taliban. Even if they are Taliban, the corrupt guards release them as soon as a bribe is negotiated.

Newsweek reported on this pattern more than two years ago.

Greg said...

Sorry, I must be projecting again. This is no victory. The government has its veto and an unelected body gets the final say in all disputes triggered by a single no vote.

Steve V said...

It's a general victory, but when you factor in the government's inability to play well with others, this will work for them in the near term.

Eugene Forsey Liberal said...

I think you are mistaken. MPs decide what gets released. Panel only decides how if specific page disputed, whether in full, in full with redactions of irrelevant bits touching national security, or in summaries. MPs-Parliament has the power, reaffirmed. Function = MPs. Panel = only form.

Greg said...

But, a single member of the committee (meaning the government member) can challenge the decision of the committee to release the full document. That member can (and I am betting will) send any or all documents to the panel of arbiters to make the national security case. So, while in theory elected members can release anything they want, the reality is, the government can still appeal to an outside, unelected group to back up their security claims. Even if they lose, the government can stall forever.

Steve V said...

"I think you are mistaken. MPs decide what gets released."

No, the panel does, if ONE MP disputes. Wonder which party will? And, the kicker is the panels decision is final.

Greg said...

Ok, looking at the text again, it seems I have it wrong. It looks like all documents demanded by the members of the committee are subject to review by the unelected panel of arbiters. So then all documents could be redacted is what I am reading, so how is this a win?

Scotian said...

As to the panel, as I understood Goodale to say all it does is decide how to implement the release of disputed material, not whether it should be released, if so that is not so bad. Also, all sides must agree on the selections for that panel so that would limit the ability of the government to get those that side with them, although it does mean the government could delay by refusing to agree with anyone that does not favour their view (one has to wonder whether there is any thought by the Opposition parties to how to show the government acting in bad faith if/when it happens in implementing this agreement and whether that would trigger a ruling from the Speaker).

On balance this is a good arrangement if what you want is to actually take the issue seriously while properly making sure real national security issues and concerns are dealt with. I never expected than any solution would be speedy in nature, but for me the most important aspect was the precedent of Parliamentary supremacy and not the partisan victory getting this government held in contempt would be. As you said, the devil is in the details, and yes Harper may have bought himself enough time to defuse this as an issue, but he failed in his bid to place himself above the powers of Parliament itself, and that is the biggest victory any and all opposition parties have had on him since he first came to power and should not be overlooked as such.

It makes it harder for him to use this argument in other areas since the Speaker already ruled, and the more Harper tries to dodge in preventing committees from seeing documents and hearing from witnesses the more the Opposition parties can make it a point of order to the Speaker now that this precedent has been clearly set down. Bottom line, Harper lost, Harper had to cave to the will of the Opposition, the most he bought himself was some more time, he was unable to stop them completely. Granted if an election happens before this work is done then he has stopped them, but then that is true whenever an election happens with all Parliamentary work and is a rather extreme tool for disruption, not that this would necessarily stop Harper given his history to date of course.

I agree with you that we need to be careful and vigilant regarding this matter and the details surrounding it, but I do not take quite as dim a view of the result as you, perhaps because for me the biggest victory was already gained with the Speaker's indisputable and unambiguous ruling two and a half weeks ago and the government being forced to comply with something they clearly never wanted to do.

RuralSandi:

Now why oh why does that not come as any surprise at all...*sigh*

Greg said...

The "single member" phrase looks to be in there so that if a Liberal member say, disagrees with the committee and wants a document released, he could appeal to the panel of experts who get the final say about whether it can be released. In the end though, it is the panel of experts and not the committee that gets to decide what the rest of parliament and the public gets to see, unredacted.

Scotian said...

"Where the Committee determines that such information is both relevant and necessary, or upon the request of any member of the Committee, it will refer the document to a Panel of Arbiters who will determine how that relevant and necessary information will be made available to Members of Parliament and the public without compromising national security - either by redaction or the writing of summaries or such techniques as the Panel find appropriate, hearing in mind the basic objectives of maximizing disclosure and transparency."

Excuse me, but I read this to say any single member of the committee can refer to the panel to decide how to release, not whether to release while being consistent of national security concerns, so I have to say I am confused by the comments of some in this thread regarding this point. This doesn't read so much as a tool for the government as for the opposition so that any member of the opposition can refer what it thinks is needed to be released without being subject to the will of the rest, I don't see how that works in the government's favour myself.

Granted I am not a lawyer, but that does seem to be the plain english meaning as it reads to me, so if I am wrong I am but I don't think I am my language skills are reasonably decent.

Greg said...

Here is the relevant section: Where the Committee determines that such information is both relevant and necessary, or upon the request of any member of the Committee, it will refer the document to a Panel of Arbiters who will determine how that relevant and necessary information will be made available to Members of Parliament and the public without compromising national security - either by redaction or the writing of summaries or such techniques as the Panel find appropriate, hearing in mind the basic objectives of maximizing disclosure and transparency. The Panel of Arbiters should regularly consult with the members of the Committees to better understand what information the MPs believe to be relevant and the reason why. The decisions of the Panel of Arbiters with respect to disclosure shall be final and unreviewable.

The key passage there is the first sentence. It is clear, at least to me, that the "Panel of experts" and not the MP's will decide which sections are withheld from Parliament and the public.

Greg said...

Scotian the how is just as important as the what. If unelected experts are allowed to redact documents, how is that a win for our elected MP's? The members of the committee are sworn to secrecy and their colleagues may never see the unredacted documents.

Steve V said...

Sorry, if I come off negative in this post. The opposition does win on the key questions. My only concern here, the government gets what they want, namely further delay and uncertainty. I believe the gameplan all along has been to delay until after the next election. If that assumption is true, then mission accomplished. Maybe it's a win/win, in the sense everybody gets what they want.

Annie... said...

I thought I heard something about redacted documents on National Security, and the Armed Forces. What good are those, because they could be about Harper under false pretenses

Scotian said...

Steve V:

Oh, I understood what you meant, and you have a fair point there, don't think I disagree. For me though this is one of those issues I do not look through any partisan lens or even my remove Harper at all costs lens, this goes to the core of my fundamental belief and faith in our system of governance, the rule of law an its applicability to all, so for me this is a massive win.

That being said, I fear you may well be correct in your read of how Harper looks at it and what he will attempt to do, but then I expect that sort of thing from Harper. I have after all been shouting for over a half decade that he is at least as if not more dangerous than the Separatists (something prior to his rise I never would have believed possible) to the Canadian political environment's health and future of the nation and alien to all Canadian political traditions, beliefs, and precedents.

Greg:

If an MP on the committee says something needs to be released, then the panel must find a way to do so while not placing real national security concerns at risk, and there are ways besides redactions to do so. This has been pointed out already. The panel makes no determination of what needs to be released, only how to do so while ensuring protection of real national security concerns which I am sure actually do exist within these documents and under some of the redactions. I think you are borrowing trouble before it has shown on this point.

You seem to fail to understand that the most important concept is that there is Parliamentary oversight, not that all the docs are seen by all the MPs. We have never in this nation's history chosen to show all national security docs to all MPs because that does provide increased national security risks regardless of who they are. What these committee MPs can do is say in general whether the government is telling the truth or not, whether there is evidence of torture in these docs, and they can clear as much of these docs as is consistent with genuine national security issues for the rest of the MPs and the Canadian public.

They can say all this with credibility because they have actually seen all the documents uncensored and then it becomes the voter's decision as to who is more credible when there is a conflict between what opposition MPs are saying versus the government when all are on a level playing field, which has not been the case to date.

Fred from BC said...

RuralSandi said...

Layton, to me, has already breached the cooperative, non-partisan mood of making parliament work.


No surprise there, since the man never misses an opportunity to get in front of a camera (even if he has to move someone else out of the way)...

Fred from BC said...

Steve V said...

It's a general victory, but when you factor in the government's inability to play well with others, this will work for them in the near term.

Yes, but neither the government nor the opposition was ever going to win this outright anyway. This is the 'best case' scenario...the 'worst case' would have been forcing an election on the issue.

hsfreethinkers said...

Steve V wrote: "If an MP on the committee says something needs to be released, then the panel must find a way to do so while not placing real national security concerns at risk,"

That's not the way I read it at all. The *Committee* decides if information in a document is relevant (and how do they determine relevance - do they all have to agree? The "agreement in principle" doesn't say). It is only documents with relevant info that *might* go to the panel (either the committee as a whole decides to send it, or one MP can request that the committee send a relevant doc to the panel). It does not say that an MP on the committee can send any doc to the panel. The committee decides relevance (somehow). If it isn't relevant, it'll stay secret.

Steve V said...

I didn't say that, think you are referencing Scotian.

hsfreethinkers said...

The descretion given to individual MPs on the committee to request that a relevant document goes to the panel seems
to relate to whether the document is "necessary" to hold the government to account. That is, the Committee may decide a document is relevant but not "necessary". So, a particular relevant document won't automatically go to the panel if it isn't both relevant and necessary, but an MP
can request that the relevant document go to the panel.

It's poorly worded, but that's the best interpretation I can
make of this agreement. Curious to see what the MOU says - maybe that will clarify these issues.

Greg said...

Scotian, can you tell me who decides what the committee on Afghan detainees gets to see, the experts or the committee of MP's? From what I read the committee MP's decides if the information is relevant, but it is the panel of experts who decide if the Afghan Committee gets to see the unredacted copy. Am I wrong?

DL said...

If anyone actually bothered to read the NDP press release - its exactly what you would expect any party to put out at the end of these weeks of dispute etc... But as usual Liberals only care about attacking the NDP while they let the Tories get off scot-free!

Steve V said...

Oh no, the king of the drive by partisan cheapshot is all offended. Lol, such a hypocrite.

Tomm said...

I'm impressed they reached a deal.

I think (once again), it was the Liberal's to "find a solution" to the impasse.

Doesn't that sound better than back away? I think that is what happened.