Friday, March 05, 2010

The old independent expert routine

Updated (6:55 p.m.) below. And 7:50 p.m. below.

Memories of David Johnston, John Manley, the old third party ploy hauled out once again by the government in the form of former Supreme Court Justice Iacobucci being asked to review the Afghan detainee documents as a means of satisfying the Parliamentary disclosure order. What they cannot do themselves, they farm out to others. Some thoughts...

I think it has to be recognized that the government knew it was in a bind and their response indicates they don't want a showdown. The law is strong on the point, there is a requirement to disclose:
Mendes said the Supreme Court of Canada has already ruled that parliamentary privilege grants the MPs the right to the documents.
The terms of reference to come look to be key:
the government acknowledges that it is appropriate that the decision made by officials on the disclosure of information in these circumstances be reviewed independently from government.
Will this be a fully independent review, that is the key. And of course, the opposition is free to reject that option and stick to insisting on compliance with the order if the terms are deficient.

The opposition are prudently reserving their rights at the moment, they have the law on their side. If they do nevertheless agree to this resolution, they should insist on inclusion in the terms of reference of Iacobucci's appointment an acknowledgement that this method of resolution does not dilute or set a precedent in respect of future exercises of parliamentary power on document production. I'm sure Derek Lee has wording that will make the point. A time frame might also be insisted upon. And if there are concerns about Iacobucci's inclinations, suggest a 3 person panel as a counter response. The fact that Derek Lee is now holding off on his motion, subject to the terms of reference being released and found acceptable, tells me that he, as an expert in the area, might be finding this resolution acceptable.

There is no good reason to believe that Justice Iacobucci could be influenced by the Harper government on production decisions and made into a "useful idiot." It's not likely he would allow himself to be put in a compromised position. He sat on the court when it made a fundamental privilege decision and has done work in this subject area and has not hesitated to call wrongdoing on the part of Canadian officials:
He also headed an inquiry into whether the detentions of El Maati, Abdullah Almalki and Muayyed Nureddin resulted from the actions of CSIS, the RCMP and the Department of Foreign Affairs.

In his report released in October 2008, Iacobucci concluded that the three men were indeed tortured.

He also said the actions of the RCMP and CSIS indirectly led to the torture of El Maati; "two actions of the RCMP" indirectly led to the torture of Almalki; and that certain instances of information sharing by CSIS and RCMP officials indirectly led to the torture of Nureddin.
It depends on how much parties want a showdown over this issue, but it looks like neither the government nor the opposition want one. Awaiting those terms of reference - check the Canadian government newswire at oh, about 10 pm tonight - but it's looking like this is a question on its way to resolution not brinksmanship to me.

Update (6:55 p.m.): This is compelling video from Professor Amir Attaran on the issue calling Nicholson's Iacobucci review a "scam."

Update (7:50 p.m.): Terry Milewski will have a report on the National tonight. He is reporting "credible allegations" there was a deliberate government policy up until 2007 to turn detainees over to Afghan police in order to be tortured to extract information.