Why is Iacobucci playing along?

Iacobucci was hired to ‘review’ the detainee documents

Why is Iacobucci playing along?

Photograph by Adrian Wyld/ CP

As the Watergate scandal deepened, the U.S. Senate struck a committee to investigate. Headed by Sen. Sam Ervin, it had broad powers to subpoena documents and compel evidence, together with a staff of investigators and legal counsel.

On July 13, 1973, Alexander Butterfield, Richard Nixon’s deputy assistant, told committee staff that discussions in the Oval Office were routinely tape-recorded. Before long, judge John J. Sirica had launched proceedings to force the president to hand over the tapes. Nixon refused, citing executive privilege, but in the end complied with a Supreme Court ruling ordering their release, with consequences that are well known.

But suppose the U.S. Congress functioned like Canada’s Parliament, and Nixon had the powers, not of a president, but of a prime minister of Canada. The committee, uncertain of its jurisdiction and with little in the way of staff or resources, would very likely never have learned of the tapes’ existence. Had it persisted with its inquiries, Nixon could have shut down the committee, and the Congress with it. And, rather than defend his case in court, Nixon could have hired a former Supreme Court judge to “advise” him on whether to release the tapes. And that would more or less be that.

I don’t mean to imply the situations are directly comparable. But you will agree that the issues involved in the Afghan detainee affair—whether Canadian forces were directed to transfer prisoners to Afghan jails, either with reckless disregard for the likelihood they would be tortured, or in the certain knowledge that they would—are of the most serious kind. Perhaps you will also agree, therefore, that the handling of the case to date shows, yet again, how weak is our capacity to hold governments to account in this country. No, this isn’t Watergate. But if it were, how would we know?

It is now four months since Richard Colvin’s explosive testimony before the Commons special committee on Afghanistan. It is three months since Parliament demanded, by formal vote, that the government hand over all documents related to his testimony, in full, without redactions. It is more than two months since the government prorogued Parliament rather than comply, and two weeks since Parliament returned. And we are no closer to seeing the documents than we were before. Frankly, that is now the more pressing issue: whether the government is answerable to Parliament, or not.

The latest instalment in this saga, the hiring of retired Supreme Court judge Frank Iacobucci as an “independent adviser” to the government, is in some ways the most troubling. It is as if, rather than openly defy the norms and institutions of democratic accountability, the government has now chosen to parody them. Though he is, according to his terms of reference, to “review” those parts of the documents that are “proposed to be withheld from release,” and to “make recommendations” as to which of these might be “disclosed,” Iacobucci may see only those documents the government chooses to provide him. He has no powers to subpoena any others, nor is the government under any compulsion to follow his recommendations.

So nothing has really changed. The government is still reserving to itself the right to decide whether and on what terms it will be accountable to Parliament. Only now it has hired some high-priced legal talent to advise it. To make this credible, it is relying on public confusion on a couple of key points.

The first involves just who the information is to be “disclosed” to. The terms of reference suggest the issue is whether it should be released to the general public and the wider world, with whatever implications this might have for national security or international relations. But no one is proposing it should be released to the public: only to Parliament. And everyone agrees that sensitive information would be reviewed only in camera, by MPs sworn to secrecy.

Second, it hopes to obscure the difference between advice and adjudication. Iacobucci is not conducting a judicial inquiry, and has none of its powers. Yet he may give the appearance of doing so, and for one reason: because he once sat on the Supreme Court. He wasn’t just hired for his legal expertise. The government hopes to acquire the legitimacy of a Supreme Court ruling in support of its defiance of Parliament, without actually having to go to court to get one.

And they’re getting away with it! Rather than enforce its own resolution, the opposition has been busying itself with a new demand, that Iacobucci be asked to conduct a full-blown public inquiry into the Afghan detainees affair. But that is a diversion from the broader issue of responsibility to Parliament. More than that, it’s a confession of impotence: in any self-respecting Westminster democracy, Parliament has all the powers it needs to investigate such matters itself.

Well, perhaps that’s to be expected; it at least has the virtue of honesty. What I cannot understand is why Iacobucci would allow himself to be used in this way. He has placed himself in the middle of a nasty power struggle between the legislative and the executive branches, only not in the position of independent arbitrator, as on the court of which he was once a member, but as a paid adviser to one side. And he has potentially placed the existing members of the court, should it come to that, in the position of having to rule against one of their own. It is a surprising error of judgment.