Friday, May 14, 2010

The detainee document agreement

Update (8:15 p.m.) below. And subsequent...

So, Armageddon, of one variety, has been headed off and the parties have all agreed, in principle, to a resolution on the detainee documents and a way forward. This is good news. I just took a quick scan around at some of the commentary and there's a lot of cynicism about it. I'm going to opt for optimism at this point. A wait and see approach is indeed justifiable, because things are rarely as they are represented to be by Stephen Harper. He's happy with the agreement, naturally arousing a lot of suspicion. But at some point, you do have to have faith in our members of parliament and the significant point that an all-party agreement has been reached. The process they've agreed to is underpinned by a Speaker's ruling that gives strong weight to parliamentary supremacy with a nod to national security concerns. If the agreement breaks down in months to come, fine, it can be dealt with then but that ruling will be in the backdrop and will inform those judges on that panel as well.

So I'm on board with those who are reacting positively about it. A few thoughts here on the details, thus far, that have been agreed.

Regarding this paragraph:
— With respect to every unredacted document examined by the Committee, the Committee will determine whether the information in that document is relevant to matters of importance to Members of Parliament, particularly as it relates to the ongoing study on the transfer of Afghan detainees currently under way at the House of Commons Special Committee on the Canadian Mission in Afghanistan, and whether the use of such information is necessary for the purpose of holding the government to account. The decisions of the Committee related to the relevance shall be final and unreviewable.
"The Committee will determine." That says two things. The MPs will determine what is relevant for accountability purposes. Not the panel. That's affirmation of the parliamentary supremacy principle. Secondly, that sounds like a unanimity standard, which is surprising to see. The context thus far has been a government that doesn't want to release information. Their presumption is no release. So how does the committee work with a likely government MP who will presumptively say no? Looks like the answer is in the next paragraph:
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.
So it seems that the preceding paragraph was more to do with asserting parliamentary supremacy. This paragraph is more to do with making the committee work. So there is an "out" of the perceived unanimity standard, stating that "any member of the Committee" can request that a document be referred to the panel for the "how" of its release. That is a good thing, albeit that there are four parties in the room! But how, practically, could it be otherwise? Unanimity, or 3/4 or 2/4 would be a recipe for gridlock and endless playing off of parties against each other.

Will that clause be used by the government to refer a ton of material to the panel? I don't see it, particularly when it's "how" the information is released that the panel is executing, not whether it will be released. You would think the government would be inhibited in forwarding information, if it's a question of how it's released.

The latter phrasing, that the objectives of "maximizing disclosure and transparency" are to be guidelines for the panel in determining how information is to be released is positive language.

An ongoing consultation between the MPs and the panel also seems positive, in that a group dynamic could take shape where there's some rhythm achieved, that a working dialogue could become the reality might be a very good thing. There's some equality in that dynamic, in terms of how items would be released, that's encouraging. And maybe the hint of some speed that could be there, but let's not overstate at this point.

This is another part worthy of attention:
Committee members will have access to government officials from appropriate departments to provide briefings and contextual information and reasons for protecting information.
Access by the MPs to such information is important, there needs to be as much of a balance brought to the opposition MPs knowledge base as there is on the government side. Otherwise, not sure how that part will factor in. Again, it could make the work run more smoothly but we'll see.

Regarding the panel's composition:
— The Panel of Arbiters will be composed of 3 eminent jurists. Composition of the panel must be agreed upon by the government and the opposition.
That's fine, to be expected. How the panel ultimately leans in its decisions on how much to release will of course be in for some criticism down the road, but if everybody agrees on the members, they're all taking the same risk.

A good start now we'll see how it's executed by all parties.

Update (8:15 p.m.): I was just having a discussion on twitter about whether there is this "out" of the unanimity standard. This was an alternative interpretation put forward:
"agreement could be saying if doc is "relevant" and "necessary" it goes to panel OR if it's both relevant and an MP requests."
My take is that the "or" in "or upon the request of any member of the Committee" which is preceded by a comma (that comma perhaps being very significant) is disjunctive. That a member requesting a review is permitted, separate and apart from a committee determination on relevance. Again, as I said above, the relevance paragraph seems to me to be about a statement of parliamentary supremacy (and the standards that would apply). But I could be wrong! Anyway, should be interesting to see what the memorandum of understanding says about all this.

Update (8:55 p.m.): We had much more back & forth on what these two clauses mean, it's all on my twitter stream. I will leave it at awaiting the memorandum of understanding. It may not be as straightforward as I put it above but now, my head hurts and it's Friday night...

Last Update here: It may well be that the "or upon the request of any member of the committee" only has to do with relevant but not necessary information. I.e., if it's deemed relevant, but not necessary, it can go to the panel. I assume that would be for, what, educational purposes that it would be sought to be released? I guess in the interests of disclosing as much as possible, that option would be made available.

Absolutely last update: I'm coming back round to my original interpretation, above. It may seem absurd to think an MP can just ask for a referral to the panel, undermining a genuine effort at determining relevance/necessity, but it's a fair interpretation. Sorry for the twists and turns here but it's something worth struggling through.