Saturday, May 01, 2010

Afstan: The true nature of up and at 'em Attaran/Speaker Milliken's ruling is right

It's not about detainees at all; it's about forcing an end to the CF's combat mission, the sooner the better. Read the excerpts below from a piece of his in the Ottawa Citizen and draw your own conclusions. And note the persistent prof's political participation--and his exquisitely selective reading of the 2008 House of Commons' motion on our Afghan mission:
Don't back down
A useful compromise is possible on the issue of the Afghan detainee documents -- but the opposition must be willing to risk an election

Four years ago in this newspaper, I introduced Canadians to a problem about Afghan detainees. I warned that Canada's military had "signed a treaty with Afghanistan that dangerously -- and illegally -- compromises Canadian soldiers and our country's taboo on torture." In transferring often innocent detainees to unsafe Afghan prisons, I wrote, the Harper government and the Canadian Forces' commanders recklessly "(risked) that Canadian soldiers will be prosecuted as parties to torture [that will happen when the Brits and Dutch are so prosecuted also, i.e. never]."..

...When, in December, the opposition passed a motion in Parliament ordering the government to deliver documents on the detainees, it appeared unlikely that the government would spurn its constitutional obligations and risk being in contempt of Parliament. That was not an outcome I imagined possible when I helped all opposition parties with that motion...

...what if the Harper government rejects both of these options? Simple: the opposition should bring a motion holding it in contempt of Parliament and Canada's Constitution. Since that could trigger an election, the opposition needs to design its contempt motion to benefit at the polls, while communicating the government's untrustworthiness and incompetence in the war itself.

In March 2008, Harper sought Parliament's conditional consent to extend the Afghanistan combat mission to 2011. Parliament gave consent, but only because Harper's motion contained a requirement that "the government must commit to a policy of greater transparency with respect to its policy on ... detainees."

Now, with Harper breaking his own condition and hiding the detainee documents from Parliament, he is inviting Parliament to place the combat mission back on the table. Thus when the opposition introduces a motion finding the government in contempt, that should also recall Harper's March 2008 motion, and revoke Parliament's consent to the combat mission extending through 2011...

Done this way, Harper will fear making the contempt motion a confidence matter, because if he precipitated an election, the Conservatives would be isolated as the only party backing an unpopular war. This they cannot afford: over half of Canadians polled oppose the war. And more will soon oppose it, once the summer fighting resumes, bloodier this year because of more aggressive American tactics in Kandahar...

Amir Attaran is a professor in the faculties of law and medicine at the University of Ottawa.
The prof. professes that...
Parliament gave consent, but only because Harper's motion contained a requirement that "the government must commit to a policy of greater transparency with respect to its policy on ... detainees."
That "only" is misleading nonsense that is excruciatingly economical with the truth. The 2008 motion (by the Commons alone, not by "Parliament" as Mr Attaran maintains, the motion's text is here) contains at least 16 requirements; I challenge Mr Attaran to show that all of them have been met. If not, then surely by his logic any other one not met equally demands putting "...the combat mission back on the table."

For example, one condition in the motion was...
that Canada should assert a stronger and more disciplined diplomatic position regarding Afghanistan and the regional players, including support for the naming of a special envoy to the region...
No such envoy has been named. And more to the point given political developments the motion requires...
that the House of Commons should strike a special parliamentary committee on Afghanistan which would meet regularly with the Ministers of Foreign Affairs, International Cooperation and National Defence and senior officials, and that the House should authorize travel by the special committee to Afghanistan and the surrounding region so that the special committee can make frequent recommendations on the conduct and progress of our efforts in Afghanistan...
That committee has never gone to Afstan or anywhere else in the area. And, truly excruciating in view of its mandate to "make frequent recommendations on the conduct and progress of our efforts in Afghanistan", this is the stark reality concerning the committees' work to fulfill that main mandate:
Study: Canadian Mission in Afghanistan

Study/Activity Home
Currently there are no available publications for this Study/Activity. The publications for this Study/Activity will appear in this section as they become available.
Zip. Rien de flipping tout. Nada. Nichts. Ništa. So, in no inconsiderable measure because of the committee's complete failure to do its main job, the debate on the Afghan mission has been essentially reduced to all detainees all the time. A situation for which the government itself also bears much responsibility since for many months it has refused to speak clearly about what it plans for post-2011--or indeed about what is happening now.

More on Mr Attaran, and on detainees, at this post. By the way the title of this previous post of mine is wrong, and the question I raised is irrelevant to constitutional reality:
Afghan detainee docs decision: When the law is no longer applicable‏‏
From a brilliant piece by Andrew Coyne of Maclean's magazine:

What’s a Prime Minister to do? Parliament has passed legislation, notably the Canada Evidence Act, forbidding the government or its employees from disclosing certain documents. And yet here is one of the Houses of that same Parliament, the Commons, backed by its Speaker, demanding that he should disclose those same documents. What could be more reasonable than to seek some way to balance those competing demands?

Except the whole argument’s bogus. No one is asking the Prime Minister to break the law. The conflict of which he complains exists only in his head. This was a key point in the Speaker’s ruling: a law may impose a general prohibition on the release of certain documents, but unless it expressly states that the ban applies to Parliament, it doesn’t. The presumption, that is, is in favour of parliamentary privilege.

I quote from page 20 of the Speaker’s ruling, where he cites House of Commons Procedure and Practice, pp. 978-9:

No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.

The same point is made in the letter from the Commons Law Clerk, Rob Walsh, to the Commons special committee on Afghanistan last December. The committee, he wrote

is at all times to be seen as carrying out its constitutional function of holding the Government to account. This is fundamental to responsible government and more particularly to the relationship between the Government and the House and its committees… The law of parliamentary privilege provides that this relationship operates unencumbered by legal constraints that might otherwise seem applicable…

This is not an exception to the law; it is the law. It does not mean the House of Commons is above the law, or that members may break the law with impunity. It means statute law does not trump the law of parliamentary privilege, which is of constitutional weight.

Moreover, Walsh argues, even if parliamentary privilege did not apply, Crown privilege — the “long-standing legal presumption that a statute does not apply against the Crown unless this is provided expressly in the statute” — does. The Canada Evidence Act, in particular, may forbid others from releasing certain types of information, but it does not prevent the government from doing so. Quite the contrary: two provisions of the Act expressly permit government this discretion...


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