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Secret documents, secret review

Yesterday, a detainee document agreement was struck between Government and two of three Opposition parties. The “pact” comes a full month and a half after Peter Milliken, Speaker of the House, ordered Government to resolve the disclosure issue.  Recall that when Speaker Milliken made his order, he gave the House two weeks to work with Government to devise a system of disclosure, and threatened to find the Government in contempt if no agreement was arrived at by that time.  The House apparently didn’t hold Government to this deadline, perhaps with the hope that an agreement allowing for greater access and transparency would be struck, but as it stands now, the document deal is fairly unsatisfying.

The agreement creates an ad hoc committee composed of four members, one each from the four parties.  This committee will have access to review, in secret, all of the detainee documents previously requested by Parliament in December 2009, and determine which of these documents can and should be released to the public and other members of Parliament.  The agreement also creates a Panel of Arbiters, composed of “three eminent jurists”.  While the ad hoc committee seems to hold the final say in what documents are relevant for disclosure, it is the Panel of Arbiters which is responsible for determining whether documents should be protected by national security privilege, attorney client privilege, and Cabinet privilege.  And according to the agreement, the decisions of the Panel of Arbiters with respect to disclosure is final and unreviewable.  Importantly, this ad hoc committee does not appear to have the power to conduct an actual investigation into the contents of the documents; its role looks to be strictly limited to reviewing the documents for relevance and more general disclosure.

Accordingly, the present agreement is unlikely to get to the heart of the matter. Its snags are serious, and have been criticized not only by the NDP, but also by legal experts who have gone so far as to call the deal “a mess”. The provisions around the “Panel of Arbiters” are one point of concern. This panel of retired judges appears to have the final say on which documents will be released and whether they will be censored or not, but there has been no word about whether their decision-making will be made public. The ban on investigating advice issued by government lawyers as well as internal Cabinet communications is another problematic point given that information about knowledge of torture may well be contained in these files.  At the end of the day, the House committee tasked with investigating Canada’s conduct with respect to detainee transfers will only have a limited and censored set of materials to work from.

With the NDP boycotting the investigation, the ad hoc committee will consist only of representatives from the Conservative party, the Liberals, and the Bloc Quebecois.

This latest development in the ongoing struggle for detainee document disclosure serves as a sad reminder of how little has been accomplished since the issue was first brought to the Government’s attention by Amnesty and the BCCLA in 2002. The government has consistently waffled on the question of document disclosure. This has included stymieing efforts by the MPCC to get to the truth, though the Commission’s been hearing from key military officials and members of government since May 2009.

We here at the BCCLA maintain that this issue has been shrouded in secrecy for long enough. A secret review that rests in the hands of a body of retired judges and is subject to the proposed restrictions strikes us as problematic, and inimical to any legitimate truth-seeking. For those reasons, we would reiterate our call for a public inquiry —one where a Commission would have full and complete access to the relevant documents and witnesses.