Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Categories: Beyond The Commons, Capital Read

The memorandum of understanding

by Aaron Wherry on Wednesday, June 16, 2010 3:44pm - 56 Comments

The official memorandum of understanding on the release and review of documents related to the treatment of Afghan detainees is now out and available here.

The contentious paragraph of preamble has in fact been changed. A sentence has also been added, at the end of paragraph seven (at the bottom of page 3), to the explanation of how the panel of arbiters shall determine what can be disclosed to the review committee and the public when solicitor-client privilege or cabinet confidentiality is raised.

Tags: Afghanistan, detainees, parliamentary privilege, privilege, torture, transfers

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http://eugeneforseyliberal.blogspot.com EugeneForseyLiberal

IV. 7. Panel reviews cabinet confidences? OK. But Solicitor-client thing is BS. Not good enough.

http://intensedebate.com/people/SeanStok Sean

You'd swear there were some government – or former government – members who are likely guilty of some legal infractions, given the way this clause has been so doggedly maintained.

Mike R

It's so doggedly maintained because solicitor-client privilege is one of the core values of our legal system. It is not an empty statement, without it clients, including governments, cannot receive honest and candid legal advice. The Liberals, who hope some day to be in government, recognize the importance of the issue – along with cabinet confidentiality. Neither is a principle that can readily be ejected for either partisan purposes or to pursue interest in a single issue, no matter how fascinating for some people.

http://intensedebate.com/people/SeanStok Sean

There needs to be a balance, otherwise all documents can simply be copied to solicitors and rendered out of bounds.

Mike R

The privilege extends to the advice sought. People do try to extend it further by copying legal departments, for example,with all sorts of documents. But there are a great many precedents which cover the exact extent of the privilege and how it can be applied. There is, in other words, a balance already.
http://intensedebate.com/people/SeanStok Sean

I'm pretty sure it extends to cover communications from the client with the purpose of receiving advice, in many cases.
Mike R

Yes, but there has to be a connection between the communication and the advice. People who try to obtain blanket protection for their documents by cc'ing their lawyers on everything don't succeed.
http://intensedebate.com/people/Jenn_ Jenn_

And it doesn't matter (much) anyway because the jurists will simply say they can paraphrase the content.

Mike T.

In an adversarial process in a court that's very true. For a government investigating its own conduct – ESPECIALLY when the government maintains nothing bad could conceivably have ever happened, it would be appropriate to release documents regardless of privilege.

Now granted that would be dicey if charges were to come out of the investigation.

Mike R

The government can waive the privilege, which it may if it considers it appropriate. The privilege is that of the client, not the solicitor. But the principle that legal advice must be given with full candor and confidentiality is not a trivial one. It is good that saner heads prevailed in these discussions. The fact the NDP took issue with that, apparently, shows how unready they are for government at the federal level.
Mike T.

I am well aware of how solicitor client privilege works and the weighty principles involved. I don't say lightly that parliament should override it in this case, believe me. In this particular case, there can be no seeking of advice the contents of which shouldn't be available to the committee.

At least, however, a committee will be seeing the full documents before they can decide if they should be released. That wouldn't happen in a regular discovery practice.

http://intensedebate.com/people/Stewart_Smith Stewart_Smith

Hi Sean, I want to take this opportunity to restate my prediction that it is a former General/ future star MP that is likely being protected.

http://intensedebate.com/people/SeanStok Sean

I don't know about that. Conservative loyalty hasn't proven to extend far beyond an individual's immediate utility to this government.

Gaunilon

As indeed it shouldn't. Making government policy based on personal or party loyalty is called "cronyism".
http://intensedebate.com/people/Jenn_ Jenn_

You're right. But that doesn't mean it doesn't/couldn't/isn't happening.

My concern is that a *future* star of the party would still very much have utility.
http://intensedebate.com/people/Stewart_Smith Stewart_Smith

I don't think this is about loyalty or star potential. I think it is about power. Power in the form of $, through being more popular with the Conservative core than the current PM. Power in the form having virtually the same access to the media as the PM and being more skilled at using it. Power in the form of perhaps wanting a political future but certainly not needing it.
http://intensedebate.com/people/Jenn_ Jenn_

Wait, so you're saying the former general/future star is being protected by the media, and Conservatives other than Harper?

Andrew (not PorC)

It was waived in the US.

http://intensedebate.com/people/psiclone psiclone

Has anyone noticed how fast information from this commitee is being LEAKED! – and if you fail to see or appreciate the irony of this you prove the point that there should be a political literacy test before being able to vote.

http://eugeneforseyliberal.blogspot.com EugeneForseyLiberal

Um, this was MOU just tabled in House. I know Cons hate Parliament, but to describe the tabling of documents as leaking seems a bit much, even for them. And if referring to NDP providing last copy of agreement they saw, that's no leak – leaking's when you're bound by confidentiality and provide info. They weren't, so they didn't.
http://intensedebate.com/people/SeanStok Sean

We trust MPs to become cabinet ministers and hold state secrets. No reason why the members of this particular committee should be any more or less trustworthy. Details of an agreement are not the same thing as classified documents, and the governing party plays the leak game as well as any other party in the house.
Amateur Hour

"if you fail to see or appreciate the irony of this you prove the point that there should be a political literacy test before being able to vote."

Yeah, right after you pass a reading comprehension test … it was tables in the House, as planned.

As for political literacy tests in order to vote: They were called Jim Crow laws in the US … nice of you to advocate the last vestiges of southern racism in your defence of our great nation.

http://intensedebate.com/people/LynnTO LynnTO

"Yeah, right after you pass a reading comprehension test … it was tables in the House, as planned."

*facepalm*

http://intensedebate.com/people/SeanStok Sean

Despite psiclone's routinely delusional appraisal of reality,I think he was referring to the earlier leaked paragraph that proved not to survive the final draft (if ever it was seriously being considered).

http://intensedebate.com/people/LynnTO LynnTO

I was just being a jerk and pointing out an ironic typo.
http://intensedebate.com/people/SeanStok Sean

Sorry, that was meant for AH.
Amateur Hour

It was my ironic typo, and I don't think you're a jerk, fwiw.

Amateur Hour

So true.

http://intensedebate.com/people/SeanStok Sean

"As for political literacy tests in order to vote: They were called Jim Crow laws in the US … nice of you to advocate the last vestiges of southern racism in your defence of our great nation."

psiclone may be an idiot, but it's both contrived and objectionable to somehow suggest there were racist overtones to his rhetorical point. It's the sort of thing that wrecks the potential for discussion.

Amateur Hour

> psiclone may be an idiot,

I don't know that to be true.

> but it's both contrived and objectionable to somehow suggest there were racist overtones to his rhetorical point.

His objectionable point was far from rhetorical precisely worded: "a political literacy test before being able to vote". The most (in)famous examples of said laws were Jim Crow. My reply was on-point and fact-based.

> It's the sort of thing that wrecks the potential for discussion.

Ordinarily, I'd agree with you (Godwin's law, etc.). In this case, I disagree because his suggestion is so odious.

John D

What a maroon
http://intensedebate.com/people/hollinm hollinm

psiclone….exactly..The draft agreement was leaked even before it had been approved by the Speaker and Parliament.

Harper is right. You cannot trust the opposition to do the right thing. So he has forced this show down. We shall see how it works out in the end. However, if there are leaks the committee will be shut down pretty quickly I suspect.

http://intensedebate.com/people/SeanStok Sean

I wasn't aware the draft agreement (and I thought it was a clause leaked, not the whole thing) was classified for national security reasons. How do you know the Conservatives didn't leak it, by the way?

http://intensedebate.com/people/Halo_Override Halo_Override

Because the Conservatives don't hate and plot against average, freedom-loving, indifferent-to-torture Canadians like all of us socialists do.

Some days it's all I think about, frankly.

http://intensedebate.com/people/PhilCP Phil

NRQ, I'm interested to read what you have in mind wrt the test; do you have some sample questions that you could provide?

Mike R

The document seems generally reasonable, and probably could have been agreed to months ago had their not been such a poisonous atmosphere in the Commons (largely the oppositions's fault on this issue at any rate).

The oath of confidentiality has an oddly republican cast to it – no doubt the influence of the Bloc. Hopefully that isn't a precedent anyone else will follow.

Amateur Hour

"The document seems generally reasonable, and probably could have been agreed to months ago had their not been such a poisonous atmosphere in the Commons (largely the oppositions's fault on this issue at any rate). "

The result of this agreement — a select group of MPs from all parties, bound by oath and limited to in camera access — is pretty much exactly what the Opposition demanded prior to Harper's proroguing and the Speaker's ruling.

The contentious atmosphere on this file was driven fully by Mr. Harper. Having been browbeaten by public opinion, losing a Privilege vote in the House, and being ruled against by the Speaker, he's finally come around.

http://intensedebate.com/people/austinso austinso

And to think people like to cast Harper as a fascist twit, when clearly he is a reasonable *cough* embracing *cough**cough* kind of fellow…

Andrew (not PorC)

You've got to be kidding. This compromise is almost exactly what the opp has been asking for for months. It has been the government dragging its heels and using misinformation and misdirection to drag out the process.

Mike R

Then they should be very happy. How come the NDP aren't?

http://intensedebate.com/people/Jenn_ Jenn_

I haven't the faintest idea. I almost wonder if their negotiator had a head cold or something.

http://intensedebate.com/people/hollinm hollinm

Jenn…..Libby Davies. I rest my case
http://intensedebate.com/people/Halo_Override Halo_Override

Your case being… that the NDP rejected the agreement on Afghanistan detainee document because, somehow, Israel might benefit? Is that it?

Or just that Libby Davies has blanket support for Islamist Terrorism overall?

Please clarify your premise!

http://intensedebate.com/people/LaxAtlDfwYow LaxAtlDfwYow

Without any deadlines or even basic target dates for naming members and alternates, appointing arbiters, obtaining secret clearances, obtaining and reviewing documents, arbiter decisions, etc. etc., this is in all likelihood a total waste of paper and time. We'll not see a single meaningful document processed before this Parliament is dissolved.

Moreover, the provision for continuation following dissolution is utterly without substance.

This agreement now makes certain that we'll never know what has happened in Afghanistan.

Mike R

Well, givent he scope of the inquiry, no, we probably won't get any clarity on this for a long time. But if the real concern is the well-being of prisoners in Afghanistan, haven't we already taken steps to improve their condition? This is simply an historical inquest into the behaviour of the Liberal and Conservative governments on the handling of Afghan prisoners between 2002 and 2007 – after which there is general concensus that things were taken better in hand. So what's the rush anyway?

LaxAtlDfwYow

Well, the worst of the allegations are that Canadians — elected, public servants and/or military – knowingly allowed detainees to be subjected to torture. I have no idea if that's true or not, but if true, might well be a criminal offense. So, no hurry with potentially criminal matters. Years have already passed what's a few more, eh?

Look, my primary issue isn't that this won't happen quickly, it's that, as agreed, there is absolutely no mechanism to cause the review to happen at all. Every step depends on the government to cooperate. Why would they now do so? Who, honestly, expects them to cooperate?

Nah, this agreement is a face saving device for the Libs who began pursuing the detainee issue but got cold feet when they realised it might cause an election call. No more, no less.

Mike R

Well, yes, it is an attempt at face-saving. But, of course, I don't believe the Liberals, in particular, were ever very interested in the substance of the issue, as opposed to the optics. No government of Canada is going to contemplate having prosecution brought against any soldier, diplomat or politician, just because the Afghans treated their own people badly. The opposition interest in this issue extended as far as the impact they thought it would have on the opinion polls. Once it became clear that was negligible, their interest in making a fight of this also waned. An inquest into the Afghan mission as a whole – how it originated and transformed over time – and whether it was well-resourced and directed – would be useful. A partisan fight in committee isn't the way to achieve that. A Royal commission, in a few years, might be useful, once all the immediate political posturing has died down.

http://intensedebate.com/people/Jenn_ Jenn_

To tell you the truth, I don't really care if I personally ever see a piece of documentation. I just want to know that someone, other than the government, and who reports to me, has seen it.

Mike T.

Incidentally, if the conservatives thought it was a Liberal government that would look bad over this, they'd be screaming how the agreement wasn't good enough.

Mike R

Well, of course they would. Politics is an adversarial occupation after all. That's why we take the expressions of outrage with a pinch of salt. Not that there can't be substance behind an issue, but, as in this one, the substance can become secondary to the politics.

http://intensedebate.com/people/Jenn_ Jenn_

So, just to get this straight, the Liberals aren't screaming because it is all about the optics, and the screaming can be explained by the optics?

Let me know when one of the only two choices there are is ever a good choice for the Liberals to make, will you?

Mike R

My opinion, and I admit it's just that, is that the Liberals and opposition originally played this up as a crisis because it seemed to be an issue on which they could make the government look vulnerable. The fact there may have been real concerns about the treatment of prisoners by the Afghans was, I think, a secondary concern, if at all. It is by no means unusual for an opposition party to make noise and heat on an issue that isn't really important in and of itself, if it can make a government look bad.
When it became clear this wasn't an issue that had any resonance with the voters (anyone think any votes will be moved one way or another by concern over Taliban prisoners?) the game became too unimportant to risk an election. Hence the agreement on a rationale compromise. The Liberals have now moved on to "concern" about the expense of hosting the G20. Next month they'll be on to something else. Such is the life of an (ill-disciplined) opposition party.

http://intensedebate.com/people/Jenn_ Jenn_

Well, your opinion is your opinion, I suppose, and you are entitled to it.

My opinion is you are very much mistaken. You know, we Liberals are often labelled as "Lefties" but the truth is we're "Centrists"; a little centre-left or centre-right as personal preference dictates, but by and large smack dab in the middle. As such, we are very concerned with human rights, and we are also very concerned with national security. This agreement, by my reading anyway, balances those two concerns with the overriding absolute of parliamentary supremacy. MPs chosen by Parliament (in the form of the parties of parliament) WILL have unfettered access to all documents. Security of Canada's interests WILL be protected. Accountability WILL be maintained. Respect for human rights will hopefully be found to have occurred, and if not, we will go from there on whatever is found. Whether that be new procedures, legal action, or lessons learned–who can tell at this juncture.

The point is that whether anyone in the general public cared about Taliban prisoners or not, that is neither the issue or the concern.
Mike T.

At any rate, their concern was almost certainly more genuine than Harper's desire to actually stop sexual offences with his crime bills.
Mike R

I don't think I'd describe the Liberal Party as either lefties or centrists. The kind word is "pragmatic", but an unkind version would be amoral. Not all, or most members, I hasten to state, but the party, since Laurier's time, has made a specialty of saying and supporting virtually any policy so long as it appeared to be reasonably popular electorally. It was the Liberal government, after all, that interned the Japanese Canadians wasn't it? And it was a Conservative government that made amends. Not to say that people don't learn from their mistakes, but perhaps an unwise hubris over the nature of the Liberal party should be avoided.
http://intensedebate.com/people/Jenn_ Jenn_

Beats me. I wasn't alive in Word War II, so I certainly wasn't a Liberal.

So am I to assume then that the Conservatives (not all, or most members, I hasten to state, but the party) are lushes? You know, MacDonald used to throw up in the legislature . . .we could go on all day, I suppose, but why?