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Up the Docs: Call for proposals


 

I spent the last few days  wandering around the Hill chatting with some of the few MPs who hadn’t made a beeline for the airport on Thursday night,  asking them about what the opposition’s endgame on the detainees documents issue was.  So Parliament has commanded the government to produce the documents. What next?  One NDP MP said to me on Thursday that the government would hand the documents over, no question. I asked him what would happen if the government refused. He said it couldn’t happen because “parliament is supreme”. End of story.

Well, yesterday the government said, effectively, “come and get them.” So again, opposition, what next? A Liberal MP, fresh from doing a TV hit about the detainee issue, told me she actually had no idea what the next step was. Does the Speaker put Peter MacKay in stocks? Does he send the Commons police or RCMP to break down doors and confiscate documents? Or does it – as Norman Spector suggests – end up in the courts, with the judiciary ruling on parliamentary privilege?

Another complication is that the House of Commons isn’t sitting for another five weeks. The special committee on Afghanistan is still sitting next week, but as our their Kady tells me, they can meet,  they can pass a motion to get a Speaker’s warrant, but after that, it’s all unprecedented. Besides, who would be summoned to the Bar, since Ministers can’t be compelled?

The opposition needs to be very, very careful how they play this. First of all, it isn’t clear how far the public is willing to let the opposition push this. The Tories looked bad in Parliament these past weeks, lobbing ridiculous accusations at the opposition and acting as if they had plenty to hide. But it isn’t clear how far public toleration will extend if it comes to the forced production to the Commons of secret documents. The government will yell and scream about the opposition helping our enemies and harming our soldiers and undermining our allies, and a lot of people will find it a reasonable line of complaint.

More worrisome still is that, based on a dim Walter Bagehot-era reading of the constitution and a jumped-up sense of the Commons as the supreme court of the land, the opposition seems bent on pushing Parliament into another crisis not dissimilar to last fall’s. There are not a lot of useful precedents for any of this, and a compromise seems in order. It is what the Speaker clearly wants, and what both sides should be working toward behind the scenes.

So here’s a proposal: When Canada joined the first Gulf War, Brian Mulroney appointed Audrey McLaughlin of the NDP to the privy council (Chretien was already a member). That way, they could both receive Cabinet-level briefings and have access to otherwise secret documents. This was very smart, politically: It gave the Opposition leaders access, at the price of not being able to disclose the information.

So one possibility would be for the government to offer to appoint three opposition members of the Afghan Committee to the privy council, and let them see all the relevant documents? Dosanjh and Rae are both already members. So why not add Paul Dewar of the NDP, and someone from the Bloc. That last suggestion is obviously a problem for federalists, but it also a problem for separatists. Who would be co-opting whom?

But as Spector and Kady both remind me, the problem with this proposal is that these new privy councilors couldn’t make use of this info on the committee, so it might not get them too far.

(UPDATE: Also, the more I think about this — and the more feedback I get from people smarter than I — the less plausible this seems. The Gulf War analogy doesn’t really work since the the point of the swearing in was prospective, not retrospective, while the Afghan committee has a political, not judicial, agenda.)

So if anyone has any other  suggestions for a compromise that might be struck here, let’s hear it.


 
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Up the Docs: Call for proposals

  1. "The government will yell and scream about the opposition helping our enemies and harming our soldiers and undermining our allies, and a lot of people will find it a reasonable line of complaint."

    Sure they will. As long as the journos suggest such vicious inaccuracies are "reasonable."

  2. Have the parties agree to introduce and pass legislation promised by the Harper gov't in the previous election campaigns related to the Accountability Act (I don't follow the specifics closely enough to know what all they are – but the general impression is that the Gov't has come up well short on what it promised, and what it has so far delivered).

    It seems to me that the opposition is pushing this issue hard – not necessarily to implicate someone specifically – but as the thin wedge to make the gov't less secretive, and more open and accountable.

    Win/win for all.

    Failing that, send them all back to boot camp (interesting that the videos were coincidently uploaded by someone named calgarytech)
    http://www.youtube.com/watch?v=BnIuS9Dt760
    http://www.youtube.com/watch?v=gBAiLfR6BFQ

    • Those were awesome, Dot. Thanks. Good for MacKay.

  3. "The opposition needs to be very, very careful how they play this. First of all, it isn't clear how far the public is willing to let the opposition push this. "

    "But it isn't clear how far public toleration will extend if it comes to the forced production to the Commons of secret documents. "

    "More worrisome still is that… the opposition seems bent on pushing Parliament into another crisis not dissimilar to last fall's. "

    This sounds to me like a whole lot of concern trolling, Andrew. I think the opposition should be emboldened by the polling on this:

    "…83 per cent believe the government was aware there was a strong possibility that prisoners would be tortured."

    "nearly 68 per cent of Conservative supporters think the government was aware of that possibility."

    "In terms of the government's level of transparency and disclosure regarding the alleged torture of prisoners… Forty-one per cent of Canadians say they are dissatisfied while 24 per cent are satisfied. Just over 35 per cent have no opinion or are waiting to draw conclusions at this time."

    Rather than worry about what might happen if they stand up to the Stephen Harper Smear Machine, the opposition has a rare opportunity here. They need to hang this around Harper's and MacKay's necks and never, never, never stop talking about it. No amount of tactical manouvering on Harper's part can erase MacKay's repeated, categorical, false denials.

    The oppo's plan should have one goal: to put Harper's stonewalling at odds with Canadians' sense of fairness. They need fast, furious communication that anticipates Harpers' attempts to smear and mislead. And they need to position themselves with their key messaging for the next election.

    How anyone could see this as anything other than a golden opportunity for the oppo is beyond me.

    • Well, for myself, I think of it a lot less as an opportunity for the opposition so much as an opportunity to do right by our military personnel. If we were ordering them to detain prisoners, then ordering them to hand them over to a real chance of torture, we must, as a country, figure out what when wrong, where it went wrong, and how to avoid any such thing from happening in the future. That's the one thing, and it is why I supported the MPCC investigation into this. Now that Tinsley's gone, I'm not sure how easy it would be to get him back and I can't imagine I'd trust any new person the Conservative government will appoint in his place to investigate thoroughly.

      • Swear them all to secrecy. Make it known that it is not a suggestion or guideline but a solemn oath with consequences. Then show them the documents. Let them continue the committee in camera, deal with the problem like adults, and come back to the House with a report that certain changes (if necessary) have been made–we don't need to know what they are–and that the committee is satisfied.

        That's a fine suggestion; I'm all for it. Anyone know of any insurmountable reason that this couldn't be done?

      • I agree this is a fine suggestion. I worry that the opposition will not be the least bit interested. Why promise ahead of time to keep quiet about something? I get the vibes that the opposition is only too happy to never see the documents, because they can perpetually yell "COVER-UP" from the rooftops just as soon as they get the Greenpeace protesters down from them.

        • LOL, that was funny.

          Well, you could be right, I suppose, although the vibe I'm getting is that the opposition are more than willing to keep a solemn oath on secrecy.

          There is one way to find out . . .

        • "I worry that the opposition will not be the least bit interested."

          Exactly.

          First of all, there are laws that should stop the leaking of secret documents but that doesn't seem to matter because there is a slow drip of documents to media and Lib partisans. So I am not sure what 'solemn oaths' are going to do.

          Secondly, I don't believe pols/parties are actually interested in Jenn_'s suggestion. Kinsella would not be able to wave secret documents around and make accusations on national tv if they implemented her ideas. Libs see this as way to bash Cons, not way to find truth.

  4. You need to rephrase that Andrew – "a lot of Conservative supporters will find it a reasonable line of complaint" – which is a lot different then "a lot of people", which polls so far bear out.

    And this is hardly the opposition's fault, any more then last winter's "crisis" was. Harper and his government have precipitated both events now. This one, I would contend, is a potentially far greater serious constitutional "threat" then a coalition government ever was going to be – which is perfectly legal as you well know in Westminister government.

    This one involves Harper snubbing his nose at Parliamentary convention and the supremacy of Parliament. He believes apparently he should have the same mystical powers as President Bush and VP Cheney claimed they had in being able to keep everything to themselves in the name of "national security", when all they're obviously doing is trying to prevent themselves from being embarrassed/politically damaged at the least – or at the worse, preventing info getting out that might get the Hague and the ICC very interested (in a bad way).

    I agree with the prior commentator: Stop the concern trolling , Andrew.

    • Fair enough comment from you and TJCook. I think it's worth pointing out, though, that the only reason Harper gets away with his bullying is because a significant plurality of Canadians support him. And, frankly, I'm not convinced the opposition has thought this through to the end, just as they didn't properly war-game the various moves open to the opposition during the coalition crisis last fall.

      • There's a difference between understanding the intricacies of Westminster-style government – which many people do not know, I'll concede – and understanding what a cover-up is/what war crimes are. I think most Canadians can understand the latter 2 or the appearance of it a lot better.

        • Following up on that, if you want a compromise/ideas for solving this, Mr Potter.. just do what Norman Spector (of all people) suggested – give an independent judicial inquiry judge the ability to screen potentially sensitive documents as they did with the Arar case. No one is claiming nowadays doing that has "killed Canadian soliders" or "aided our enemies".. so why would this be any different looking at these documents?

          • I've agreed with Spector since the start — give us an inquiry to sort all of this out. Why the government is acting like they have so much to hide is beyond me.

          • "Why the government is acting like they have so much to hide is beyond me."

            This is the nub of the issue for me. If Cons are behaving like they are to protect soldiers than I have absolutely no problem with their behaviour.

            If Cons are doing this to protect themselves they are being remarkably shortsighted as far as I am concerned because Libs are the ones who agreed to hand over prisoners to people they knew were torturing others. Having a spotlight on Libs decision to hand prisoners over to torturers instead of Americans would not harm Cons at all.

          • 'Having a spotlight on Libs decision to hand prisoners over to torturers instead of Americans would not harm Cons at all.'

            So are you saying, that instead of the govt using the detainee issue to embarrass, even implicate the Liberals, which they could,
            the govt chooses to protect the soldiers….no?

          • No. Given that the ink on the agreement wasn't even dry by the time Harper took office, it's hard to think that the Government actually did have credible knowledge that the Afghan's wouldn't be living up to their end.

            I'll admit, not the brightest move by our government, but if we're unwilling to believe the Afghan authorities in what they say, then why bother having them in the first place? Just take over completely and live with the consequences.

            However, between 2006 and 2007 it seems that credible information was being sent up the chain of problems — problems appropriately reported by our soldiers.

            Our gov't chooses to protect itself.

    • "I agree with the prior commentator: Stop the concern trolling, Andrew."

      I meant to ask this earlier but what does 'concern trolling' mean?

      • In an argument (usually a political debate), a concern troll is someone who is on one side of the discussion, but pretends to be a supporter of the other side with "concerns". The idea behind this is that your opponents will take your arguments more seriously if they think you're an ally. Concern trolls who use fake identities are sometimes known as sockpuppets.

        Taken from: http://www.urbandictionary.com/define.php?term=co

        • Thank you. I was wondering what it meant.

  5. The only way this stalemate is going to be resolved is if a majority of Canadians understand and care that this issue is not just about the possibility of complicity in war crimes, but that this government is defying the supreme authority of their elected representatives from all parties, and demand that the government comply 'forthwith'.

    • But that is not the issue,
      the issue is the opps are accusing the govt of a cover up because of their refusal to produce unredacted documents.

      The opps don't want all unredacted documents to clear the name of soldiers,
      they want the documents to smear the government, and the soldiers would be a casualty of that smear job.

      • I beg to differ – that *is* the issue. Polling shows that a majority of Canadians believe that this government knew about detainee abuse and is covering up. The opposition parties are doing what a majority of Canadians want them to do – get the truth about who knew what when. Our troops, as distinct from their military commanders, would not be a casualty of the truth, and your suggestion that they would be is despicable.

      • Nice supposition. I'd suggest you pulled it out of your arse, but considering where your head is lodged, it's difficult to tell exactly where it came from.

    • But that is not the issue,
      the issue is the opps are accusing the govt of a cover up because of their refusal to produce unredacted documents.

      The opps don't want all unredacted documents to clear the name of soldiers,
      they want the documents to smear the government, and the soldiers would be a casualty of that smear job.

  6. "How anyone could see this as anything other than a golden opportunity for the oppo is beyond me."

    Turning our troops into war criminals to appease partisan liberals is not going to do much for Libs in polls. Blatchford's column today says exactly what many Canadians are thinking. If Libs push this too far they will be in for a world of hurt because not many are agreeing with their 'we support our troops but they are war criminals' argument Libs are making at the moment.

    One person's golden opportunity is another's sh*t sandwich.

    • "Turning our troops into war criminals to appease partisan liberals is not going to do much for Libs in polls. "

      Well, good thing nobody is trying to do anything of the sort. What a ridiculous line of "reasoning". Speaking of sh*t sandwiches, congratulations on falling in line behind the disgraced hack Christie Blatchford.

      • Then explain what exactly it is the govt is supposedly trying to cover up
        if not that our troops handed over detainess they knew would be tortured.

        Those decisions are made in the field, as the Noonan testimony clearly sets out,
        the Generals and govt are briefed AFTER the fact.

        • Covering up that they knew there was a high liklihood of torture happening, and not doing anything to investigate that possibility and perhaps stop the transfers altogether, even as our troops took steps where they thought it necessary to prevent torture.

          The troops made the right decision. The gov't did not.

  7. Wouldn't the simplest explanation be that they have something to hide?

    I'm only commenting on their behaviour here, I don't have any more information than anyone else, but it's hard to deny the appearance of guilt.

    • If the Conservatives have something to hide, it would seem to be war crimes. Which would have been committed by our soldiers. The soldiers do, of course, have a defence of following orders but the onus may be on the soldiers to prove that. And the orders they'd be following would be the 2005 policy decision to hand over detainees under a 2005 transfer agreement. This is where the Liberal party is having problems.

      The other difficulty is the collision between Parliamentary supremacy, the law on war crimes and the law on security and access to information. The New Democrats will be well-served by establishing a strong interpretation of Parliamentary supremacy, but, again. the Liberals will run into trouble. Finally, Canadians will wonder why the opposition doesn't go to an election over this if they consider it important. At some point, the drive to keep this in Parliament instead of the courts or the ballot will seem suspicious.

      • That's a very good new attempt at trying to paint the "opposition is against the soldiers" there, Style. It never ceases to amaze me how much distortions and twists Conservative government MP, Ministers, and their supporters like you will attempt to pain this as the opposition parties being against the troops, when its really about what the Conservative government and senior military officials knew and what it did or didnt do about it.

        It has nothing to do with the soldiers on the ground, who it's been shown took their Geneva Convention obligations seriously – it's to do with the fact that the Conservatives and the senior military officials apparently didnt.

        And as I said elsewhere Style, not everything needs to be a vote of non-confidence. There are provisions for dealing with this, and those provisions, or the first of them to do with Parliamentary supremacy, has taken place. All the government has to do is turn over the documents to Parliament, or turn them over to a public inquiry.

        I contend Canadians will be less wondering why the opposition doesn't go to an election over this, and more about what the government has to hide .

        As I said elsewhere, only a month or 2 ago, every Conservative commentator and their dog was saying "nobody in Canada wants an election", yet it's amazing how they apparently now WANT an election now that they're in potential political and legal trouble.

        • Transfer to torture is a crime. If someone commits a crime, they should be prosecuted. Why does that not apply to soldiers? Why is pointing this out considered taboo? Why do Canadians support shielding the military from lawful prosecution?

          We can keep pushing the role of Parliament into new realms, but eventually the opposition will need to explain why they prefer these arcane procedures the courts and the ballot box.

          • This is simply not how the law operates.

            First of all, commiting a criminal act requires intent. If a CEO sets up a fraudulent business that doesn't mean that everyone working for that business is guilty of a crime–just the ones who knew or had responsibility to know that it was fraudulent.

            Second, in the international law there's a concept known as "moral choice". Going back to Nuremberg, the concept essentially means that a person cannot be responsible for war crimes unless the person in question faced a moral choice with respect to their own actions, but that the orders of a superior cannot be used to excuse war crimes provided that a moral choice existed. In otherwords, the entire Second World War was a war crime (aggression), but that doesn't mean every Germany soldier was a war criminal.

            Who carried out the physical act of transferring a prisoner is irrelevant. The question is what responsible Canadian officials, if any, chose to transfer prisoners to Afghan authority knowing there were "substantial grounds for believing that [they] would be tortured".

          • ''…Who carried out the physical act of transferring a prisoner is irrelevant. The question is what responsible Canadian officials, if any, chose to transfer prisoners to Afghan authority knowing there were "substantial grounds for believing that [they] would be tortured"…''

            That would be former PM Paul Martin, Minister Bill Graham, Minister John Manley and General Hillier, they drafted the 2005 detainee agreement to the Afghans, a change from 2002-2005 where prisoners were handed over to the US.
            Amnesty Intl and AIHR and Red Cross all had reported on the Afghan prisons 2003/04.

            There will be breifing documents from the Martin Liberals to the Harper Conservatives,
            and there will be many of your answers as to why the Libs ignored warnings of torture and killing in Afghan prisons.

          • They certainly have a lot to answer for, but isnging an agreement does not equal chossing to transfer prisoners. For that you'd have to follow through and–more importantly–follow through after warnings of torture were made.

          • Canada and our allies chose, in 2005, to transfer prisoners inti Afghan prisons. That's why we negotiated the agreements. Nobody has explained why the Canadian agreement, signed in 2005, lacked the oversight provisions included in our allies' agreements.

          • On that we can certainly agree. The agreement was obviously and deeply flawed. It should have never been signed.

          • They certainly have a lot to answer for but signing an agreement is not the same thing as actually following through on that choice and certainly not the same as doing so after warnings have been made about torture.

          • So why are the Conservatives so concerned with covering that up? Let's see them, let's hang this on Martin and Manley! Why are the Conservatives protecting them?

          • Maybe the (quaint notion of) national interest means the Tories are compelled to protect themselves AND Martin-Manley-et-al.

          • Maybe. In which case, ouch, that's gotta hurt.

          • Some soldiers behaved commendably. Any soldiers who transferred detainees to torture behaved unlawfully. Any superior officers who failed to sufficiently prevent it or to act on warnings that this was happening also committed a crime. The soldier who made the transfer has a defence of following orders which were not unlawful on their face.

            Quoting from the National Post piece: there is little doubt that handing over detainees to local authorities where it is foreseeable that they will be tortured could potentially constitute a war crime…a military commander “knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence” or, in the case of civilian authorities, that she “knows that the person is about to commit or is committing such an offence, or consciously disregards information that clearly indicates that such an offence is about to be committed or is being committed by the person.”

          • "Any soldiers who transferred detainees to torture behaved unlawfully… The soldier who made the transfer has a defence of following orders which were not unlawful on their face."

            That's simply not true. For one thing by definition one cannot "behave unlawfully" if one has a defence–a defence is an argument that an act was in fact legal. And there is no evidence that any individual soldier on the ground who took part in the transfer of any prisoner knew or had the responsibility to know what was going on in Afghan prison. That's the responsibility Ministers as the military was not given responsibility for monitoring Afghan prisons.

          • "Any soldiers who transferred detainees to torture behaved unlawfully… The soldier who made the transfer has a defence of following orders which were not unlawful on their face."

            That's simply not true. For one thing by definition one cannot "behave unlawfully" if one has a defence–a defence is an argument that an act was in fact legal. Furthermore there is no evidence that any individual soldier on the ground who took part in the transfer of any prisoner knew or had the responsibility to know what was going on in Afghan prisons. That's the responsibility Ministers as the military was not given responsibility for monitoring Afghan prisons. One may be able to make that top General had a responsibility to decern this information–since the CDS signed the transfer agreement–but not "any soldier". Knowledge is an element of the crime.

          • In this instance, a defence means, although you committed an unlawful act, you are not criminally responsible. The field report implies that those soldiers knew that detainees were beaten by Afghan authorities. If transferring detainees into such circumstances is a war crime, soldiers on the ground had sufficient knowledge to make their actions unlawful.

            What was the MPCC investigating that started all this discussion?

          • "What was the MPCC investigating that started all this discussion?"

            Complaints from Amir Attaran, the BCCLA and Amnesty International.

            To the best of my knowledge the complaints were about the detainee transfer policy as a whole, not the actions of individual soldiers.

          • How many aliases do you have?

          • Good question. For some reason my comments weren't showing up so I I tried another username to see if that was the problem.

          • Would hate to think that those soldiers Harper was* standing beside *could be charged with war crimes. news at eleven

      • I think it's likely that a soldier not reporting evidence of torture is a disciplinary matter with administrative penalties depending on the obviousness, while doing nothing once the torture reports are officially coming in is a government matter.

      • Those like yourself who persist in trying to implicate our courageous troops on the ground in the failure of their superiors and our government is despicable. Our troops obviously understand the mission far better than their military and political masters. It should be obvious to everyone now that the contents of one soldier's field notes on the transfer of a detainee have been made public that our troops care more about the Geneva Convention than does the Harper government and some senior military.

      • I'm pleased to see such concern about a Canadian soldier who may be charged with a war crime. Only problem is, the Conservatives are the ones who would be preventing him from defending himself with the *documents no one can see* since the soldier's defence would include reports to his superiors that he was concerned about the transfer, warnings against torture and the like. That would embarrass the government, so the soldier can get stuffed.

        And I particularly enjoyed your last line. Please remember that this whole thing started in the Military Police Complaints Commission. They are explicitly prepared to deal with sensitive, top-secret documents, and know how to handle national security. All those people have top-level clearance, are current or former military personnel, etc. If the government had only allowed the commission to do its work properly, this never would have come up at committee.

        • Thanks, glad to bring such pleasure. The documents that aren't being released could also prove crimes at the ground level, as well as up the chain of command. The famous field report shows some soldiers intervening for one detainee, but also establishes that they knew they were transferring detainees to abuse.

          The MPCC is set up to investigate crimes by soldiers, by not investigating this, nothing is happening and only the government is taking any heat (and only trivial political heat). Reading the coverage of this you get the impression Canadians now believe soldiers should never be investigated and only politicians (from the party you oppose) should be held accountable.

          Does the military enjoy cooperating with the MPCC? Judging from the pattern of redactions, it seems the military has selectively redacted any evidence against its members. That this might also benefit the government may have been blown out of proportion. Or it might be that Peter MacKay and Gordon O'Connor knew things the CDS missed and were actively intervening to keep him in the dark. That seems unlikely…

          • Precisely, Style. We don't know, if there is a cover-up, who is doing the covering-up. Some soldiers on the ground could have knowingly and with complete indifference flouted their responsibility under international law. Or, I am very willing to admit that if all the documentation flowed through the military chain of command, and the military top brass kept it from the Minister of Defence, that the Minister of Defence is blameless.

            That could be the case, but it seems unlikely at this point because, according to the government, it is the Department of Justice alone that has the responsibility to redact documents. Doesn't mean there isn't a person in collusion with the military responsible for the redacting, of course.

          • There's a criminal investigation into soldiers' actions and a parallel MPCC process into the same complaints. But everybody asserts that soldiers are blameless in this and acts as if suggesting otherwise is poisonous.

            Tactically, the opposition have made themselves the parties of parliamentary supremacy fighting the "support our troops" Tories. That seems misguided. If they instead emphasized their support for the MPCC and the military's own oversight mechanisms, they might be further ahead. I'd rather see those strengthened than see a debate over parliamentary tradition. Wouldn't that do more to maintain trust in the military?

            In terms of a cover-up, we now know that the CDS was not receiving reports of abuse that were filed in field reports. And redaction is most likely done by the military, then submitted to Justice for approval – that's approximately how access to information works.

          • I'm much more about what is good for the country rather than what is politically expedient, so you may be right but I don't care. However, the opposition members were sticking up for the MPCC–it just wasn't a big story then so as usual got almost no coverage. They probably could have been more vociferous about it, but then there'd be the old 'picking another scandal' feedback.. You really have to pay close attention, I find, if you want to know anything about anything that isn't the controversy of the day in the media's collective mind. MacLean's does well in this regard and I'm glad we have such a weekly newsmagazine.

            I did not know that was how redaction works. Probably because that is not what Minister MacKay told me, meaning us, meaning Canadians.

    • Duh.

  8. Once the blanket privilege issue is decided, the issue of harm to the troops is easy. ONe lawyer from each side discusses each document with a judge, the judge rules on each one individually.

  9. That's not the spin you put on it an hour ago.

  10. "He said it couldn't happen because “parliament is supreme”. End of story.He said it couldn't happen because “parliament is supreme”. End of story."

    It is ok if dippers claim this because they have not held power. Libs claiming that parliament is supreme, however, should have thought harder about this concept when Lib leaders ignored confidence votes in Feb '68 and May '05 for a start.

    • No convention was trampled..at least in '05.

      There was no confidence vote. There was a vote to send a report back to be amended. That vote was in fact honored but an election came about before the report could be amended and tabled before the house again. If the amended report had been accepted by the house, that would have been the confidence matter.

      In this situation, there was a specific vote to release the documents.
      Individual ministries refusing to do so is showing contempt of parliament.

      • However, Prof. Heard is not in an agreement with Prime Minister Paul Martin's decision to ignore the May 10 passage of a Conservative motion recommending his government resign.

        Martin waited nine days before having a vote on two budget bills that passed second reading by the narrowest of margins after he was able to have an opposition MP, Belinda Stronach, defect to his party.

        "This is part of the problem," Prof Heard said. "Constitutional conventions are based on precedents and he's kind of pushed the envelope of what we've seen in the past. And he pushed it in a very large way by refusing to accept that first defeat on May 10 as an actual vote of confidence.

        "In my own view it was a clear test of confidence. He was able to kind of bafflegab his way out of it and that is probably the more problematic precedent rather than the nine-day delay he had."

        http://www.politicswatch.com/house-may25-2005.htm

        • The reason the Martin government was able to properly ignore the purported confidence motion of the other parties in 2005 has been explained on this board before, and to you specifically, if I am not mistaken.

          Please take a moment to learn it before you post on the matter again.

          • I don't remember that discussion. I am less than shocked, however, that I ignored a bunch of liberal partisans explaining why it was ok for Martin/Libs to ignore conventions and precedents to remain in power.

          • Then you have no conception of what a precedent and a convention is.

            I'm somewhat sorry if I sound condescending but iit's one of those things where the "it was a confidence motion" side is simply wrong, and to have a reasonable discussion everybody has to be on that page. It really gets under my skin. Rules is rules, the rules weren't followed = no confidence motion. Sure all the other parties wanted one, and when they had the first legitimate opportunity they took it.

          • Who do you think I find more persuasive? You certainly sound something but condescending is not the word I would have chosen.

            ———————

            "I'm somewhat sorry if I sound condescending but iit's one of those things where the "it was a confidence motion" side is simply wrong, and to have a reasonable discussion everybody has to be on that page. It really gets under my skin. Rules is rules, the rules weren't followed = no confidence motion.

            Mike T
            ————————

            "This is part of the problem," Prof Heard said. "Constitutional conventions are based on precedents and he's kind of pushed the envelope of what we've seen in the past. And he pushed it in a very large way by refusing to accept that first defeat on May 10 as an actual vote of confidence.

            "In my own view it was a clear test of confidence. He was able to kind of bafflegab his way out of it and that is probably the more problematic precedent rather than the nine-day delay he had."

            Prof Heard

            Prof. Heard's publications on constitutional conventions include the book Canadian Constitutional Conventions: The Marriage of Law and Politics, Toronto: Oxford University Press, 1991 and several articles: "Recognizing the Variety Among Constitutional Conventions", (1989) 22 Canadian Journal of Political Science 63; "Constitutional Conventions and Election Campaigns," (1995) 18 Canadian Parliamentary Review (3) 8; "Constitutional Conventions and Parliament,"(2005)

          • Wait a minute. I wasn't in on that discussion and I really have no idea how Martin managed it, but Joylon, are you honestly arguing against,/i> governing in accordance with the strict letter of the rules? Because, there's the how to make a committee dysfunctional manual, the in-and-out scheme, the proroguing before a vote can be held, the pass a meaningless law and then break it, and probably a number of other examples of how Harper lives by the ability to destroy the intent while staying within the letter of the rules.

            If he learned all that from Martin, I will never forgive Martin for it. Somehow, I doubt that is the case, because he hasn't seemed like a good learner in recent days.

          • You have just made a list of things that bother you. I could do same/similar list for Libs. My point was that Libs have been abusing the rules for years so I am not at all surprised that Cons are doing same thing.

            Some time around the end of Mulroney era or beginning of Chretien admin, MPs stopped taking Parliament rules/conventions/precedents seriously. No one is responsible for anything anymore. It has been anything goes for 15-20 years and Con behaviour is just continuation.

            I want all parties following Parliament procedures, not just Cons.

          • Hey, that's fair. While we're at it, can we get MPs to concern themselves more with what their constituents think, and what is good for the country, and less about what their leader thinks? This thing with the party whips on almost every single vote bothers me most of all.

            My list was of things that bothered me where skating up to the letter of the law blew well past the spirit of the law. I left off the tenpercenters because I think those come right up against the spirit of the law but not really past it. Another thing that bothers me is the new media centre where nobody ever goes. But that's well within the rules, just a waste of money and a show of power. I mean to say, there are a lot more things that bother me that I think Conservatives have every right to do, I wasn't just listing out my personal objections.

            But I totally agree that once a rule has been pushed out like this, it never goes back.

          • "My list was of things that bothered me where skating up to the letter of the law blew well past the spirit of the law."

            Expecting people to do the right thing is naive, that's why we have laws. When Martin ignored confidence vote, bribed one of Harper's MPs to cross the floor and then held another confidence vote 10 days later when numbers were more favourable, was he following the spirit of the law?

            And what lessons do you think Harper learned while watching Martin conduct his coup with little blowback from msm or Canadians in general.

          • Precisely why I said that if Martin taught Harper this, I would never forgive Martin. Now I've said it twice!

            I would like to discuss Stronach for a second. I liked her, even when she was a Conservative, probably because she should never have been a Conservative. She was never going to move up in that crowd and the only thing she had going for her as a Conservative was MacKay. If she decided, for whatever reason, that it wouldn't last, even that was lost to her. Politically, it was very smart of her to go to the Liberals when they were prepared to offer her something (I particularly despise that kind of "smartness") but I imagine she'd have ended up with the Liberals eventually anyway. I liked her, but I did not like how she wanted to lead right out of the gate–none of this put in your time, learn the ropes stuff. None of that changes your point, of course, just a different perspective.

    • awesome we are back to <s>we are going to do things differently</s> two wrongs make a right…

    • awesome we are back to <del>we are going to do things differently</del> two wrongs make a right…

      • two wrongs don't make a right. I assume we are in agreement.

        However, holding separate parties to entirely different standards is not right either. Libs have ignored Parliamentary rules for long time and so I am not at all surprised that Harper is going to try same thing. If it works for Libs, why wouldn't Cons try it.

        • in that case I assume we are also in agreement that the Cons should now respect the will of Parliament?

          • you have not answered joylon…

          • "I assume we are also in agreement that the Cons should now respect the will of Parliament?"

            Yes, I agree. But I am certain we have two entirely different ideas of what 'respect the will of Parliament' means and what should happen next.

          • i think the motion was pretty clear as to what the will of parliament was, no?

        • If it works for Libs, why wouldn't Cons try it.

          Because it is wrong.

  11. "He said it couldnt happen because parliament is supreme. End of story.He said it couldnt happen because parliament is supreme. End of story."

    • It is great to watch Libs talk about previously top secret documents on national tv while trying to convince us that this has nothing to do with politics. I have no idea why Lib party lets WK anywhere near their organization.

      I also find it interesting that few, if any, in the msm are asking about 'ethics' of this.

      • Previously to secret…are you nuts? This is precisely what's wrong with the system…secret my ass!

  12. Last time I checked the Constitution, the Senate was still part of "Parliament", and so it's difficult for me to see why a mere motion passed in one house should somehow outweigh legislation like the Security Offences Act and Canada Evidence Act, which were passed by both houses and which received Royal Assent.

    Repeating "Parliament is Supreme" over and over again doesn't really resolve this issue, now does it?

    • Actually, it does. Since Parliament adjusts legislation and motions all the time, it stands to reason that the most recent pronouncement of Parliament is the one that should be heeded.

      • Well, as I say, once Parliament (the House and the Senate) 'pronounces', these issue will all be clarified.

        I'm sure that will happen first thing after January 25th…unless of course we've all moved on to another issue by that time.

        • Meh. We disagree.

          I don't think the Senate has anything to add to this issue, just as they don't have anything to add to votes of non-confidence.

    • Last time I checked the Constitution, the Senate was still part of "Parliament",

      That's like saying that Federal Court rulings have no authority because they haven't been confirmed by the Supreme Court.

      • I'm off to Christmas party.

        Anyone else want to explain the difference?

          • Jack, with all do respect, it's not that simple. Parliament is still bound by the rule of law, until it amends the law, which would require the following normal process, including passage by the Senate. In this case, the House and its Committees are bound by statutes passed by previous Parliaments. These laws include the Canada Evidence Act and the Security of Information Act. Parliament can amend these laws, but the motion passed only by the House of Commons on Thursday was not such an amendment:

            "The Parliament of Canada has the constitutional authority not only to regulate its internal proceedings and establish its rules of procedure, but also to enact a large number of procedurally important statutory provisions, many of which are found in the Parliament of Canada Act.

            Of procedural significance for the House of Commons are provisions in the Act relating to the following:

            the power of the House and its committees to administer oaths to witnesses appearing either at the Bar of the House or before a committee;
            procedures to be followed when Members resign or when seats are otherwise vacated;
            conflict of interest rules applicable to Members;
            a Deputy Speaker's ability to act in the Speaker's absence;
            the existence and remuneration of parliamentary secretaries;
            the remuneration of Members of Parliament;
            the existence and management of the Library of Parliament; and
            the establishment of the Board of Internal Economy to act on all financial and administrative matters respecting the House.

            In addition to the Parliament of Canada Act, there are dozens of other statutes that oblige the House to undertake some action or which regulate some aspect of the proceedings of the House. These include, for example the:

            Access to Information Act;
            Canada Elections Act ;
            Electoral Boundaries Readjustment Act ; and the
            Referendum Act .

            Only Parliament as a whole (the Senate, the House of Commons and the Crown) may enact or amend laws which affect House of Commons procedure."

            http://www.parl.gc.ca/compendium/web-content/c_g_

  13. "dim Walter Bagehot-era reading of the constitution"

    On what grounds do you call it dim, Andrew? It seems like a perfectly accurate reading to me, of the version of the Constitution that Canadian soldiers have been dying to defend for a few generations now.

    You know, the version where the majority of elected representatives of the people get to represent the people in lawmaking and oversight, not the version where one MP chosen a bunch of partisans gets to come up with a new excuse each week to withhold the public's documents from the public's representatives.

  14. Andrew,
    The answer is simple. The oppo want a copy of the documents.
    The goverment says no they are a state secret. Releasing them gives info to the Taliban at the risk to our soldiers.
    Harper should go on TV, explain to Canadians the situation and request the oppo to cease debate on this issue. If the oppo refuses, then dissolve parliment and have an election. If the oppo wins then they can release the documents. If they don't, then they will be be crucified for generations.
    Personally , I think this is politics at its worst especially when Canada is at war and we should be supporting our troops in every way.

    • "we should be supporting our troops in every way."

      forget to read friend?

      "The Tories looked bad in Parliament these past weeks, lobbing ridiculous accusations at the opposition"

    • The opposition is best served by the continued non-production of unredacted documents. They get to pose in front of the lights that way.

      If there is nothing incriminating, and national security is the only motive, the opposition can posture all they like at the expense of the national interest, should they ever prevail.

      If there IS anything incriminating, the opposition can posture all they like at the expense of the national interest, the political fortunes of current Tories and current-and-former Liberals, and possibly the legal interests of men and women we sent into harm's way, should they ever prevail.

      • Cute…but nevertheless wrong.

        • Care to provide any supporting argument? Things work better down here when it is treated like a discussion forum, rather than a "because I say so!" forum.

  15. Blatchford has another story today on the detainee issue. Apparently it's hidden way inside in the print edition, but available on Nat. Newswatch. She says, "it seems clear that whether officially or through leaks, many of these documents over the coming weeks and months will one way or another be making a public appearance." There well may be leaks, but I will suspect that they come from Harper & Co., who will then point at the opposition parties, and say we told you so.

  16. So when we say "stand beside our troops" we really mean "stand beside Hillier and/or O'Connor/MacKay" ?? Look, it appears somebody did something bad here. We are all convinced it isn't the soldier on the ground. I very much doubt any war crime charges will be forthcoming to anybody over this (nobody has charged the CIA or FBI interrogators yet, after all, and nobody is suggesting that any Canadian tortured anybody)

    But why you feel the soldier on the ground is to take the heat for his or her military or political masters is beyond me. And by not investigating this, that's what's happening.

  17. Oh, and while I take your point about my naivete, I am resolved to end my life expecting better of people. Yes, I will always be disappointed, but if nobody is out there challenging these people to be honest, fair, etc., there is no hope. I don't cheat on my taxes, either.

    • I seem to be doing opposite. I am 39 1/2 years old, and I will be getting even more specific about how old I am as the big day approaches, but I find that I am shocked by people's behaviour less and less. I don't seem to get bothered by anyone's behaviour except for murders, pedophiles and the like.

      Wasn't a fan of Stronach's. I thought she was too flighty to be taken seriously tho I agree, from Belinda's perspective, what she did made perfect sense. I was less than impressed by Martin's behaviour however.

      • Ten years makes all the difference (or we are completely different people, whatever). It is my hope that others' behaviour will again bother you, Joylon, because otherwise I find that very sad.

        I am becoming less of a fan of Martin (I never really was a fan of Martin) daily, it seems.

  18. Politically, a compromise might be best for the Opposition, but constitutionally they are on extremely firm ground. One must attempt to distinguish between "politically helpful" and "legitimate," as the anti-Coalition intellectuals, led by Mr. Potter, signally failed to do last December. The confusion between the two, of course, results from our populist instinct to view the latest poll as the Mandate of Heaven. It is vital to resist that temptation; it's a recipe for muddling the waters on our (very clear) constitution.

    The fact is that Parliament is supreme. It alone provides the legitimacy a Government needs. Its will, in confidence motions or in its power of subpoena, cannot be questioned by the very institutions that require its support, like the Government. Any other position effectively argues that the Government is not subordinate to Parliament and thus does not need its support. That is the form that tyranny would take in our system and it is absolutely intolerable. The only institution not subordinate to Parliament is the Crown, and if the Crown sides with an anti-Parliamentarian position we will, as in 1642, be forced to choose between them (perish the thought).

    • I thumbed up you, but that wasn't strong enough for me. Very well said.

      Here's hoping someone in the government is reading thatcomment.

      • I agree: Hear Hear, Jack. If you had a blog, I'd say that should be put up on a blogpost so we can all link to your fine article.

    • Can you imagine how Trudeau would have reacted to this argument if there'd been a Bloc, NDP and Conservative majority demanding documents from the October crisis?

      • Trudeau and many of his ministers did provide sensitive documents (and personal testimony) about secret RCMP activities targeting the FLQ, the PQ and other organisations during a notorious inquiry in 1977 that found widespread illegality in RCMP national security operations.

          • Ah, the classic Trudeau wit..

        • And after the commission, the Attorney General of Canada concluded that disclosure of available evidence would be damaging to national security � therefore the Attorney General of Canada pursued no further prosecutions.

    • very well stated Jack!! this is the exactly the essence of the matter. and while it would be nice to avoid similar brinkmanship as employed by Harper et al last year at this time, compromising our democratic system to do so is unacceptable.

  19. " [ More worrisome still is that, based on a dim Walter Bagehot-era reading of the constitution and a jumped-up sense of the Commons as the supreme court of the land, the opposition seems bent on pushing Parliament into another crisis not dissimilar to last fall's.]

    …There are not a lot of useful precedents for any of this, and a compromise seems in order. It is what the Speaker clearly wants, and what both sides should be working toward behind the scenes"

    Nice spin AP. While recognizing the opposition has an agenda, so does the govt. If we're headed for crisis it's primarily because the govt wouldn't accede to a legitimate request from parliament. The govt does have a legitimate reason[ duty] to question the scope and reach of this request [ it's their job] But it doesn't have the right to question the very supremacy of parliament

    .

  20. …so who "first" turned up the heat here? Who's turning this into another possible constitutional crisis in less than a year? To not point out the political agenda of the govt here is naive at best.
    As Jack points out above, the desire for a sensible compromise would undoubtably be helpful, but it should not trump the larger issue of the opposition's legitimate duty to assert that parliament is supreme

    • I completely agree. The ordinary compromise between security and accountability is called "Question Period." It's something of a Bagehot-era institution, so I don't know if it's valid in 2009 when we've all got Wii's and wear t-shirts, but the idea is that the Government will explain its actions and above all not mislead the House. That's the constitutional compromise.

      Of course, that compromise has been spectacularly shot to hell in the last few weeks — whence the Opposition's scheme to actually hold the Government to account in a get-tough kind of way. The Minister of Defense, the go-to guy on this issue, MISLED THE HOUSE. When that happens, and the Minister doesn't resign, and the Government continues to stonewall and give every possible indication that there's a huge coverup going on, the time for compromise is over.

  21. I wonder if we may not have learned anything from a year ago. [ or maybe Harper has…those polls, those marvelous polls ] Harper's govt precipitated a crisis by poking an unnecessary stick in the opposition's eye, and they respond by promptly overplaying their hand. I certainly hope the opposition have learned that there is a wider political arena out there…they may be on firm constitutional ground, but that is not a green light from the public to grap the steering wheel. Play it smart guys. By all means take a stand for parliament and our right to know what our govt's been up to on our behalf…but don't ever forget that Harper views everything through a poltical not a moral lense, and don't underestimate Harper's capacity to turn this issue on its head and frame it as the coalition redux.

    • I agree with your resoning above. In this case, I think the Canadian people are the final judge.

      • That's not entirely what i said. We have a representative parliamentary democracy, it's not a popularity contest.

    • I agree with you. Well said!

  22. What else to say to someone who's just been slam-dunked?

    • He would have used the Canada Evidence Act, though. Can you really not imagine Trudeau in this situation? The McDonald commission started seven years after the October crisis, while a Quebec inquiry was running. took four years to report out and withheld the evidence and forewent any prosecutions. And these are just the points I've gathered this afternoon – imagine what would I could argue if I followed all the Communist party links I keep coming across, or talked to an ardent sovereigntist. Come on, there's an interesting idea here – what if the minority Liberal government of 1972 were called on to hand over the documents? (Side bet – will it take Sir Francis more than five minutes to tell me it did?)

      • I can certainly imagne him fighting tooth and nail against disclosure, would he have defied Parliament if push came to shove? I find that hard to imagine. Anyway, if he had he'd be just as much a tyrant as anybody else who did so.

  23. Well, at no point (as far as I know) had the Attorney General or any member of Trudeau's government been discovered to have lied to the House of Commons. It's rather difficult to say "just trust us" after that's happened.

    • Sorry, there are so many accusations of lying that I'm not clear which one(s) you mean here. Could you clarify?

      • He said there was no evidence of a detainee of ours being abused after being transfered to Afghan authorities. He said it about a dozen times, categorically. About a week after he started saying it, it was shown to be absolutely false. So he is now totally without credibility; and as long as he speaks for the Government on this file, the Government itself is totally without credibility on this file.

  24. No, he's responsible. If he doesn't know, he has to say he doesn't know. He has to say, "I have not seen any evidence" not "There is no evidence." And even if he doesn't know, it's his responsibility to know, so if he doesn't know he's just as much at fault as if he did know. Either way, he misled the House.

  25. And after the commission…

    …the commission that had been struck at the insistence of the House, precisely the body Harper is obstructing…

    [T]he Attorney General of Canada concluded that disclosure of available evidence would be damaging to national security…

    after the commission had already seen and heard mountains of incriminating evidence and testimony, provided by the government

    [T]herefore the Attorney General of Canada pursued no further[!] prosecutions…

    …as he considered that there had already been enough prosecutions.

    So, let us adumbrate the Trudeau/Harper analogy. What commission of inquiry has Harper struck in response to the detainee fiasco? What personal testimony have his responsible ministers provided to that inquiry? And what prosecutions have taken place as a consequence of that inquiry?

    • Thanks, your input on this is very helpful – it's not something I know a great deal about and I certainly know more now thanks to you. How did the House insist on establishing the McDonald commission? Didn't the election of the PQ in Quebec and their decision to start an inquiry force Trudeau's hand?

      It seems the commission heard evidence from the government and senior officials, but the Government decided not to release this evidence or press charges against anyone. The Government of Quebec did press charges. How did those prosecutions turn out? Was the commission's evidence available to the investigators?

      In terms of the timeline, I quibble with the assertion that late 2005 is five years ago, and wonder if the adoption of the policy is the appropriate comparison. That seems a bit like dating the October crisis to the adoption of the War Measures Act, in 1914…

      • Didn't the election of the PQ in Quebec and their decision to start an inquiry force Trudeau's hand?

        Not really. It would have been easy for Trudeau to portray proceedings in Quebec as politically motivated witch hunts (as they partly were). Pressure in the House to strike a federal commission of inquiry became intense, especially from the NDP, who were crucial Liberal allies in those unstable late '70s years. Neither the House not the PQ in Québec had the power to "force" Trudeau's hand, but Trudeau knew enough to take the wisest course.

        …the Government decided not to release this evidence or press charges against anyone.

        The priority was allowing the commission to do its work. Full public disclosure was not necessary–any more than it would be necessary to deal with the detainee issue. The intent was to investigate systemic failures and provide recommendations to assure that they did not reoccur, which is the kind of process Harper should be initiating as well.

      • Prosecutions did take place after the commission, with only one resultant conviction–that of Chief Superintendent Alcide Yelle
        .
        I quibble with the assertion that late 2005 is five years ago…

        Quite rightly, too. I'm already in "2010" mode. Let's say the detainee issue began roughly four and a half years ago.

        That seems a bit like dating the October crisis to the adoption of the War Measures Act, in 1914…

        I'm not sure what you mean by that. Are you addressing one of Jack's points?

        I'm simply saying that the McDonald Commission's objects of inquiry were just as relevant and immediate (and dangerous to the government) as the details of the detainee question, and that it is justifiable to argue that Trudeau was ready and willing to open his government to an intensity of scrutiny that Harper is trying to evade.

        • Thanks for the link. These quotes seem pertinent: He (Yelle) was convicted after opting to face the court without the aid of top-secret RCMP files and federal government documents that perhaps could have helped exonerate him…During the McDonald Commission,.."we were in a structured, official unit doing stuff that was approved by the highest levels. They threw us to the wolves.”

          So, there seems to be some question about Trudeau's transparency.

          But the two situations have more parallels than I realised. Is there a book or resource you'd recommend for learning more about the commission and its context?

          • These quotes seem pertinent…

            Indeed. If Yelle had contested the charges, the court would have had to order the public disclosure of secret documents. Yelle fell on his sword, like a good solider, to spare the government that embarrassment. That kind of sacrifice is an institutional imperative in law enforcement (and in the military): one is expected to "take one for the team", and refusal to do so draws down a lifetime of ignominy upon the recusant.

            It's important to note that the documents that were spared publicity in this instance had been formally declared "Top Secret" by our national security establishment. The contentious documents currently being withheld by the Harper ministry have not, to my knowledge, been formally classified as "Top Secret" but have merely been declared "sensitive" by arbitrary fiat of the minister responsible.

            My knowledge of the events surrounding the McDonald Commission comes from my reading of the standard biographies and histories–nothing specialised. I would be grateful to anyone who can point us to more pertinent source material.

          • "Sensitive information" seems to be the technical term in the Canada Evidence Act for information that should not be disclosed – it would include top secret documents. There are apparently a range of classifications for the documents that have been redacted, from "Canadian Eyes Only" to top secret. Yelle seems to have been in the same situation as the soldiers currently under criminal investigation and subject to the MPCC process.

          • Frankly, I don't think the government's use of the word "sensitive" has been even that taxonomically accurate; it appears to be meant as an abstract adjective. Surely, if the documents were officially "Sensitive", Christie Blatchford would not have been allowed access to them–even in redacted form.

  26. By the way, the events involved in the current detainee imbroglio extend as far back as late 2005–five years ago. Trudeau's commission was truck in 1977–seven years after the October Crisis; thus the time-frame for both controversies is roughly equal. Furthermore, Trudeau's inquiry was broad. It also dealt with RCMP malfeasance against the Parti Québecois, which had just taken power in Québec a year earlier, giving the inquiry an extremely timely line of investigation and one with massively embarrassing implications for the ruling Liberals.

    The fact is that Trudeau had the balls to undergo that kind of investigative ordeal; Harper does not.

  27. I think he was enough of a scholar to know that if the trained seals threw off their training and started attacking, it was his responsibility to pay attention.

    "Defying Parliament" would not just mean ignoring orders, it would mean physically resisting the Officers of Parliament when they come to get you & your documents. That didn't happen with Trudeau because Parliament didn't take that step. We'll see what happens when / if Parliament does take that step now.

    • They wouldn't be throwing of their training, of course, they'd still be clapping on their leader's command. I think he was self-assured and disdainful enough to face the opposition down – including taunting them about their efforts to clap him in leg-irons for protecting Canada rather than playing their little games.

      • "Protecting Canada" is something of a stretch. How it protects Canada to have our name associated in Afghanistan with ANP brutality and around the world with indifference to the laws of war is anybody's guess.

        If the CPC had wanted this story buried, they would have come clean at once, faced a week of outrage, and been believed when they then promised to make sure it never happened again. As it is, they apparently thought they could exploit the scandal to the Opposition's disadvantage, by playing up American-style jingoism. Or, like Hillier, they were just too stubborn to admit their fault. Either way, this is now going to end with somebody in shackles — though ideally Mackay won't be beaten with electrical wire or "walled" too much.

        • Is it a question of acting "like Hillier" or of being so enamoured of him that they couldn't push him to admit his mistake? Their weird crush on the man (and the military) seems to have led to some lax oversight, and it isn't encouraging that the opposition seems similarly smitten.

          • Couldn't agree more. Afghanistan has produced some genuine heroes, both in the ranks and in command, so why they're all focusing on Hillier beats me. If it turns out that this whole schmozzle is due to his self-indulgent brashness, it will just be too much. I mean, I know he was a good strong lobbyist for the CF and all, but surely it's possible to do that without sounding (and acting?) like Don Cherry.

  28.  IntenseDebate Notification <DIV>LOL, I was thinking how remarkable it is that our opinions are so close. Slightly different I will grant you. </DIV> <DIV></DIV> <DIV>I thought a stronger MPCC, too, up until last week when Tinsley's mandate ended. Yet another example of how the Conservatives brought this on themselves since I think the MPCC is absolutely the venue made for this examination.There was every precedent for extending Tinsley's mandate, not that that was the only problem. But stalling, obstructing and stymieingthe commissioner who understood the seriousness of the charges and was willing to look into it until his mandate ran out, then appointing a new guy andsaying, “Oh, we'll let MPCC look into this now” does not inspire me with confidence that the new guy will be objective and independent. And remember, I was really rooting for MPCC.</DIV> <DIV></DIV> <DIV>That opportunity has passed us by. Nobody but the Conservatives are to blame for this.</DIV> <DIV></DIV> <DIV style=”FONT: 10pt arial”>

    • The opposition could offer to participate in the selection of Tinsley's replacement.

      • Wow, don't reply by email. But I see we're back up here (we weren't when I responded).

        Why? Why would they do that? Please remember that the members of the Afghan committee are actual human beings. If you have been spending as much time and effort as the members of the committee have, only to be misled, stonewalled, insulted, etc., questions asked left unanswered in favour of casting aspersions on your patriotism, how likely are you to want to give the Conservatives a do-over? But okay, perhaps they could somehow rise above the natural human emotions that would generate. Now we have three opposition parties, all thinking they have the perfect person in mind. Then we have another few months of negotiations, more bad blood stirred up, and still, not one ounce (as far as I can see with this scenario) of a change in attitude from the Conservatives that got us to this point in the first place.

        • The committee members can all take a punch, don't worry about them. The opposition could pass a motion giving Harper three names to choose from, along with a clear direction to the new chair to continue the process. That's not a do-over – it takes one of Harper's discretionary powers away from him, protects the MPCC from interference and switches the debate away from Parliament vs. the troops.

          • I do worry about them. As I worry about our soldiers, our diplomats, and everyone who works in our name.

            Fine, as soon as Harper agrees to release the unredacted documents and bows to the will of the House, I think that could be an excellent course to pursue. In fact, the more I think about it, the more I like it.

          • Isn't Harper an actual human being who works in our name too?

          • Yes, he is! And he wins, too, because he can protect the top secret information from the evil Bloc while being the one guy looking out for Canadians and avoiding an election, or however he wants to spin it. I'm liking this, Style! Of course it wouldn't work at all if the MPCC wasn't given access to the unredacted documents no matter who the commissioner is, so the will of Parliament (i.e., the release of the unredacted documents) is respected, while still not giving access to the loud-mouthed opposition members.

  29. "the two statements are equivalent."

    Not when you're responsible for being right. The Minister is responsible. If things go wrong and it's not his fault, it's his fault. If things go right and it's not his doing, he gets the credit. That's why we pay him a big fat salary and put his face on the front page of newspapers. He's responsible, full stop.

    • He's responsible, but he's not omniscient. You can say he should resign because he didn't find this evidence, but it's absurd to impugn him for lying because he said “there's no evidence” instead of “to date there's no evidence that I'm aware of”.

      • Well, you're right, I shouldn't have said he "lied." He "misled the House."

        But he's the second Minister of Defense in this Government to mislead the House on the same issue. Regardless of whether you take Mackay and O'Connor as incompetent or willfully deceptive, the Government's credibility on this stuff is zero. Which, I'd say, is why a House committee would be entirely justified in stepping in, or in calling Mackay before the bar, or in any other radical step you care to name. When the Government cannot be trusted with Canada's good name in the middle of a war, whether because of incompetence or (the jury's out) mendacity, it's the patriotic thing to do.

  30. MaggiesFarmboy, with all due respect, why would I take your word for it, rather than say, Rob Walsh, the Parliamentary Law Clerk or one his predecessors or constitutional scholars like Ned Franks, all of whom have made clear that parliament, including the House, and its committees have an unfettered right to demand the production of people and documents?

    • You mean the same Ned Franks who on Friday said that Parliament might lose if the matter is litigated, because Parliament might be ordered to follow its own secrecy laws?:

      http://www.theglobeandmail.com/news/politics/mps-

      Yes, I think that you should take his word for it. After all, I'm merely an anonymous commenter.

      As for Mr. Walsh, perhaps he should consult the Parliamentary website.

      • Uhm, if you appreciate what Professor Franks is saying, and what he said elsewhere (like the interview he did with CTV last week), you would understand that 1) there is a huge distinction between might lose and should lose and 2) that parliament, including the House, and its committees has an unfettered right to demand the production of people and documents?

  31. Sorry, Maggie's Farmboy, you're right. I was just stating the principle of the thing. Practically, of course, as you say & quote, Parliament is bound not only by law in general but by those particular laws.

    Nevertheless, if Parliament so votes, it could quickly amend those laws to provide itself access to whatever information it pleases. In fact we could take Parliament's willingness (or lack thereof) to do so as a test of whether the Opposition is seriously interested in exerting Parliamentary authority over the Cabinet. If they don't, it's just grandstanding; if they do, it will be a splendid reaffirmation of our democracy. But saying they want the documents without giving themselves the power to claim them is neither here nor there, a sign of unseriousness.

    • Completely agree.

      Unfortunately, I suspect another spell of unseriousness is in the wind.

      January 25th is a long way away, and in my view, neither the Canadian public, nor the media, have the attention span necessary to see this through.

      • I guess people like me get psyched at the prospect of something happening. It doesn't help that I read Macaulay's history of the Glorious Revolution (every page of it, bigod!) last summer. But your comment reminds me that it took an awful lot of tyranny on the part of James II to get the English public to even moan in its sleep. I mean, the guy was arresting Dissenters by the bushel, imprisoning C of E bishops, taking bribes from the King of France, etc. etc. etc. Rather more flavourful tyranny than this type of thing, yet even then most of England was indifferent to William of Orange when he appeared. And they didn't even have TV.

    • Whoa nellie. Liveblog of the century if they do open it up. Move over, Karlheinz.

      • I am starting to think that he will have some excuse asking for it to be put off until January, moving the ball back into the court of the opposition. I suspect the CPC thinks – for good reason – the opposition will eventually mishandle this to have it blown up in their own faces. The more they are in control, I suspect the thinking is, the more likely is a grievous error.

        Def miss Kady being here.

        • Maintaining discipline will probably be a challenge. There are probably some reactive anti-military mindsets in both caucuses and all it would take to send Harper into hyper-hypocrite mode would be one idiotic quote blaming the soldiers in the field for the Government's mistakes.

          A bigger challenge for them will be to keep the story alive in January.

          I don't know how comfortable I am with Parliament calling the CDS to testify on this hot topic. I would much rather see Mackay called before the bar, preferably in irons.

  32. oh, yes I definitely think that Rob Walsh should take advice on how he does his job/what he thinks from you.

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