The Detainee Papers Ruling

The Detainee Papers Ruling

Peter Milliken's low-key way of speaking doesn't automatically command attention. His stature, short and thickset, doesn't make him an imposing physical presence when he rises to address MPs. But the Speaker of the HOUSE OF COMMONS, who has done the job for longer than anyone in Canadian history, didn't have any trouble holding the often raucous chamber's rapt attention on the afternoon of April 27, when he read his landmark ruling in the clash between the House and the government's executive branch, the Prime Minister and cabinet. The question: must the CONSERVATIVE government turn over to an opposition-dominated House all the uncensored documents MPs demand to see as they probe the Afghan detainees controversy? Milliken was unequivocal - yes, it must.

But he granted Prime Minister Stephen HARPER two weeks to hammer out a deal with the opposition parties on how to keep legitimate secrets from being made public when those documents are finally delivered. "Finding common ground will be difficult," Milliken said, showing a mastery of understatement. (As if to signal just how difficult, he paused midway through reading his findings to wipe the sweat from his white-haired brow with the sleeve of his traditional black robe.) The problem is the corrosively partisan mood in the House these days, especially over anything to do with the war in AFGHANISTAN. The government routinely accuses the opposition parties of lacking proper regard for Canadian troops in the field. And the LIBERALS, in particular, have taken to referring at every opportunity to what they've labelled the Conservatives' "culture of deceit."

So it's against this backdrop of intensifying acrimony that all parties now have until May 11 to try to reach the accommodation that Milliken insists upon. The obvious way forward is for the Conservatives to turn over whatever uncensored documents MPs demand, after negotiating for the House committee on Afghanistan, which is investigating the detainee issue, to set in place procedures to make sure secrets stay secret. Milliken gently, but firmly, closed the door on the argument from the government that boils down to suspicion that MPs on the committee can't be trusted not to leak. "There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate safeguards in place," he said. "I find such comments troubling."

In fact, the opposition parties, especially the NDP, have been proposing for weeks that a mechanism be established to bind MPs to secrecy. The Tories weren't willing to negotiate about it. In the wake of Milliken's ruling, though, NDP Leader Jack LAYTON repeated a pledge to accept just about any terms the government proposes. Asked if he was worried that opposition MPs might be left unable to publicly air politically explosive details about the government's handling of the detainee file, Layton suggested he would be satisfied if only the committee's conclusions could be made public - even if some damning evidence had to remain under wraps. "There's bound to be a combination of information being available to the broad public," Layton said, "and also MPs from all parties having a chance to see some of the more sensitive materials, in order to draw judgments about what's really taken place."

Veteran parliamentarians point to previous cases where MPs heard highly sensitive testimony under leak-proof conditions. Perhaps the most recent example was a subcommittee of the House justice committee that studied organized crime for a report issued in the fall of 2000. The subcommittee began by holding in-camera sessions to figure out how to tackle a subject that would require police and other witnesses to talk often about sensitive investigations. They decided to guarantee that everything witnesses said in closed hearings would be kept confidential. MPs agreed not to make anything they heard public, even indirectly. The committee tabled recommendations, but disclosed little about how they arrived at them.

The detainee issue, though, is far more consequential. The government has been fighting allegations it did too little, too late about warnings that detainees turned over by Canadian troops fighting in Kandahar might be tortured in Afghan prisons. Diplomat Richard Colvin testified before a House committee last fall that all transferred detainees were likely tortured - turning the story from a nagging distraction for the Tories to a potentially devastating scandal.

Given the setback Milliken dealt their bid to contain the damage, it wasn't surprising the government was cautious in responding to his ruling. Sent into the foyer of the House to react, Justice Minister Rob Nicholson told reporters the government would review it and "welcomed the possibility of a compromise." Despite Milliken's broad finding that MPs must be given all the documents they demand, Nicholson seemed to suggest the government would not abandon its claim that laws meant to protect national security take precedence over parliamentary privilege. "The government will not knowingly break the laws that were written and passed by Parliament," he said. "Our government will not compromise Canada's national security, nor will it jeopardize the lives of our men and women in uniform."

Just how far the government might go to avoid turning over documents is hard to predict. Some Tory MPs said privately they would not be afraid to run an election triggered by a standoff over detainees. Conservative strategists would seek to frame the choice facing voters in terms of their determination to protect national security and defend the reputation of Canadian soldiers, against the opposition parties fretting over the mistreatment of Taliban insurgents handed over to Afghan authorities in Kandahar's combat zone. As well, Conservatives know that even if the parliamentary impasse over detainees forced an election, other issues would arise during the campaign. They see a strengthening economy improving their chances, as the recession of 2009 recedes and Canadians generally feel more upbeat.

Still, recent experience might also give Liberals reason to hope that popular sentiment could swing their way. Early this year, what started out as an obscure debate over Harper's decision to prorogue Parliament, suspending it for a few weeks, ignited a surprising popular backlash that temporarily drove down the governing Conservatives' poll numbers and lifted Michael IGNATIEFF's standing. If the Liberals could manage to cast the Afghan detainee deadlock as another case of Parliament being undermined, they might get a similar bounce. Ignatieff seemed more keen, though, to cut a deal to get a look at those documents. He predicted Milliken's ruling would force the Tories to soften what has been, up to now, an uncompromising position. "The highest authority in our Parliament has said, 'Sort it out,' " Ignatieff said. "Once [Milliken] has ruled the way he has ruled, you bet a solution will be possible."

Another potential tack open to the government is to ask the SUPREME COURT OF CANADA to wade in on the issue. The top court occasionally hears what are called reference cases, in which the government asks for its opinion on some important question about the Constitution, law, or the powers of Parliament or provincial legislatures. In its most famous reference case, the court ruled in 1998 that Quebec could not unilaterally separate from Canada. But McGill University law professor Evan Fox-Decent, an expert on how parliamentary privilege is balanced against the rule of law, said asking the court to reject Milliken's sound reasoning would be at best a delaying tactic on the part of the government. "They'd lose," Fox-Decent predicted. "The Speaker is applying a power the House has had for as long as Parliament has existed with any independence from the king."

So Milliken's ruling leaves the government no easy options. Simply negotiating with the other parties to hand over the documents is clearly unpalatable for the Conservatives - they have been resisting doing just that for several months. The House passed its motion ordering that the documents be produced early last December. Harper didn't try to defuse the issue until March, when he appointed former Supreme Court justice Frank Iacobucci to review the material and decide what should be released. The opposition deemed Iacobucci nothing more than the government's lawyer on the case, and didn't back off from their demands. Now, the issue is cast in stark terms that cut to the heart of Canadian democracy - maintaining the historic balance between the rights of Parliament and the responsibilities of the government. As Milliken warned, "an unbroken record of some 140 years of collaboration and accommodation" stands in danger of being "shattered."

Maclean's May 10, 2010