A recent committee that didn’t leak secrets

How the House Afghanistan committee can avoid becoming a “leaky sieve”

by John Geddes

As all-party talks get rolling into how the House Afghanistan committee might see sensitive documents but also keep state secrets, MPs should look back at the experience of the 2000 Sub-Committee on Organized Crime of the Standing Committee on Justice and Human Rights.

That sub-committee was created in the spring of 2000 and reported back to the House in the fall. It was chaired by former Liberal MP Paul Devillers, and only a couple of its former members still sit in Parliament—Liberal John McKay and, interestingly enough, Conservative Peter MacKay, now the defence minister. (The surname similarity is a bit confusing, so I’ll used first and last names throughout.)

John McKay tells me that the sub-committee decided when it undertook the study that it could not report usefully without educating itself on how police really investigate organized crime. That meant not only hearing police witnesses in closed sessions, under strict confidence rules, but also traveling to key sites like porous border crossings, docks where illegal smuggling occurs, and locked rooms where police evidence is stored.

These informative field trips and in-camera committee sessions were accomplished after MPs from all parties agreed to be bound by a solemn undertaking not to reveal what they learned. John McKay recalls that at the outset Peter MacKay voiced strong misgivings based on his previous experience as a Crown attorney in Nova Scotia.

“He had some serious reservations about whether the confidences that are necessary would be kept,” said John McKay. “And I think his concern, while valid on the face of it, turned out to be unjustified.”

Unjustified because the committee didn’t end up being a “leaky sieve” (as Ned Franks has put it).

Along with relying on the honour of honourable Members, a number of special steps were taken. Only one transcript of the sub-committee’s in-camera sessions was kept, for example, and it was stored in the committee clerk’s office. The number of miscellaneous House officials who heard what MPs were hearing was held to a minimum; for instance, the committee used only one console operator, the technician who handed recording its sessions, throughout its work.

And when the sub-committee finally issued a report, only its recommendations were included—not the usual explanatory text and lists of witnesses. Overall, a promising case study in confidential committee work on a highly sensitive subject.




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A recent committee that didn’t leak secrets

  1. I see no reason why an opposition MP poses a greater security risk than a cabinet minister, once properly cleared and sworn. it's kind of a given that elected representatives will honour the terms of whatever roles they take on, and I don't seriously believe any MP would put security at risk.

    However, the comparison between this case and the Organized Crime sub-committee can only be taken so far, in that the purpose of examining classified material was not to investigate government wrongdoing in the instance of the latter.

    No matter what agreement may be reached, I'm still wondering if there won't be opposition MPs ultimately left knowing information they cannot use, if the government is careful enough to connect it all to ostensibly unshareable files.

    Does anyone know if there's a formal code dicatating what counts as 'national security' interests, as it relates to keeping things secret? Or is it something that is judged 'on the fly' by military and government leadership?

    • Sean, the first sentence in your post prompts me to caution you not to be naive. The current dispute is by now so politically radioactive in the current poisonous atmosphere in federal politics that I can imagine more than one opposition MP using irregular ways of getting a conservative-condemnatory message into the public realm. I'm sorry if this seems harsh, but

    • Wouldn't it be a lot easier to take a vote in parliament; "Stephen Harper lied to the house when he denied knowledge of torture and, allowed torture to continue by doing nothing".
      all in favor??????????
      (otherwise, nothing will come out of this Harper controlled process.)

  2. Presumably, determining what is a state secret and what's not is the prerogative of parliament. Isn't that what the speaker ruled? In that case, an all-party committee charged with reviewing the files would decide–rather than the PMO.

  3. I'm trying to envision how a committee – with some built in antagonism and competing interests – could wade through hundreds of thousands (I assume) of pages in a reasonably expedient and productive manner. It's not like they can step out of the room and provide examples of the other side being obstinate, given that the examples couldn't be provided until the committee has agreed they are fair game.

    I expect it's fairly easy to cast most anything as a matter of security, if you're broad enough in the definition. Likewise, one can argue many things to be benign.

  4. This will not work for the Afghan committee because if there's anything even the slightest bit damaging, the opposition will find ways to hint at in a dark mysterious manner and let the media run with their own stories. I can see columnists quoting unnamed sources to describe contents of certain blacked out documents, for example.

    But most importantly, if the decision to redact is made by committee, you can be assured that that process will fall apart pretty quickly.

    This is a no-win for Harper, on all counts.

    • Anon 001, right on!

  5. Hokay, so after going around in circles a little bit, I managed to find two things:

    Canada's National Security Policy Circa 2004 (for those who are paying attention, Paul Martin's government brought this into play.)

    Canada Evidence Act, S.38, the interpretation of which is used to redact stuff, according to The Hill Times.

  6. Er – isn't the purpose of this focus of the committee to ensure that no Geneva Convention rules were broken – and – if they were – to ascertain whether the doers (presumably non-commissioned and lower rank officers) were directed – explicitly or implicitly – by senior ranks and / or political levels who were aware of the risks and took them knowingly?
    Frankly, if such things occured, whatever team may have perpetrated these acts should be held accountable – and not be permitted to sweep such things under the carpet!
    This is not a gotcha game – at least from my perspective!

  7. BTW – a digression – Paul Devillers – former MP for Simcoe-North – who chaired the referenced Committee – was a highly respected and honest, hardworking parliamentarian who was screwed by the Martinites in much the same manner as Sheila Copps – but had the courage to read the writing on the wall – and elected not to fight it!

  8. You are right to be concerned.

    With the potential volume of material in the tens of thousands of pages, any review by MPs would literally take months even without allowance for wrangling over security issues. Almost without a doubt, such a review would exceed the remaining life of this government. Moreover, the government would naturally remain in control of the pace at which documents were "found" and released to the review group.

    I expect any review of the type that appears to be under discussion will end up exactly like the vaunted "EI Study Group" of summer 2009: an sham exercise intended to buy time for the government.

    Where Mr. Geddes' comparison breaks is in the different underlying motivations of the governments of the day. This government fundamentally does not want to play nice with the House and so we must expect it will not.

    Moreover, if the document review is assigned to a Parliamentary committee, then proroguation or dissolution stops the work dead in its tracks.

    It seems to me that only a public inquiry can ensure Canadians finally know what has really happened.

  9. "This will not work for the Afghan committee because if there's anything even the slightest bit damaging, the opposition will find ways to hint at in a dark mysterious manner and let the media run with their own stories. I can see columnists quoting unnamed sources to describe contents of certain blacked out documents, for example."

    I just don't see this happening. It basically allows the Conservatives to say that they knew the opposition couldn't be trusted with sensitive information that may put the lives of our soldiers at risk and gives the Conservatives the opportunity to go on the attack over the judgement and trustworthiness of the opposition. Why would they give them that opportunity?

    • Good point. But given that the Canadian CDS has stated that he has no objections to the release of documents, that particular Conservative talking point won't work.

  10. "Moreover, if the document review is assigned to a Parliamentary committee, then proroguation or dissolution stops the work dead in its tracks."

    Too true. Under any other prime minister, I'd say, "Surely not…"–but not with this one.

  11. Which, I believe, is why Miliken said it is up to Parliament to decide what is and is not needed for security purposes.

  12. I think people are distinguishing between opposition MPs finding information that is damaging to the conservatives, and finding information that actually presents a risk to national security. I think they are quite different things.

    Also, surely an MP slipping up and disclosing information about organized crime poses a far more actual risk to Canada than some random information about procedures in Afghanistan? I mean, the chain of events that have to happen for the information to be disclosed in Canada, get reported in Afghanistan in its own press, get passed on to someone who could make use of it–that's a lot more steps than the fact that organized crime in Canada pays a lot of attention to things in Canada.

  13. There is an implicit assumption that the only path to address the possible issues is through public disclosure. The MP committee not only lacks the time, they lack the resources and expertise to really go through the material they will (eventually) end up having access to. There job is simply to determine if there is the equivalent of "probable cause" for a proper inquiry.

    It is true that there is no way for all of this to be accomplished before the next election, which also means the next election campaign will be a mess. (All sides making allusions to what is really in secret documents) Oh well, democracy is messy.

  14. Maybe I'm naive about these sorts of things, but I'd be more comfortable if there were some sort of known standard to guide them.

  15. I was against our military involvement in Afghanistan from the very start, and my fear of this very sort of clusterf**k was amongst my concerns (a firm belief that military engagement wouldn't acheive our goals was primary). Not that I predicted this particular turn of events, but the reality is that war requires fairly broad license to be given to the government of the day, which ultimately doesn't square well with democratic institutions and public transparency.

  16. "I think people are distinguishing between opposition MPs finding information that is damaging to the conservatives, and finding information that actually presents a risk to national security."

    I'm pretty sure that Harper's most recent utterances about not 'breaking the law' with regard to disclosure make it certain that anything potentially damaging to his government will be forcefully argued as a matter of national security. You don't need to be too creative to argue that any knowledge of our troops' activities, discussions, or favourite snacks might be useful (in some ill-defined manner) to the enemy. I don't believe that to be the case, but truth and reason rarely play a role in these things.

  17. Again, it's a valid concern, but addressing these issues happens all the time. MPs on committees, and all-party commissions like SIRC, address sensitive and classified materials concerning foreign affairs, intelligence, law enforcement and organized crime, military affairs, etc. frequently. Parliament ruled that the Committee — not the entire House — has a right to see unredacted documents so that it can do its business. Precedent and law lead the Speaker to rule in agreement.

    It's not dissimilar to the arguments against the secret courts used in security certificate cases. Opponents of special courts point out that Canada has tried organized crime groups, Biker Gangs and terrorists in the criminal courts — successfully. They have heard from intelligence sources, informants, viewed classified material, etc. It can, indeed, be done. There is no need to set up a parallel system to achieve justice.

    In the detainee documents case, there is no reason to prevent the Committee from reviewing documents and interviewing witnesses while also protecting the national interest.

    Harper was a stubborn fool. He should have said, "We inherited this prisoner transfer system and it proved wanting. We tried to improve it, but clearly, there are still problems. Lets strike a special all-party committee, swear 'em in, and find out if the transfer system can be fixed and, if not, what our other options might be. Then we'll present those options — stripped of the most sensitive information — which the all-party committee has already reviewed — to the House as a whole and vote on it."

    Had he taken this path, he would have cleared himself of this controversy, shown he was capable of leading a divided House, protected the reputation of the military and classified information, and put the onus on the opposition to help forge a solution. In other words, he would have been a LEADER. But he's not up to the job.

  18. How the Conservatives will handle this depends directly on the issue of whether or not they have anything to hide.

    If they have nothing to hide – and their stubbornness to release the documents was just that – something will be worked out. If they do have something to hide, a compromise won't be found.

    Read more at http://battlelight.blogspot.com

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