Has Parliament's law clerk caught pro-Taliban fever?
Like most Canadians, I wish the opposition parties and the media would care as much about our Canadian Forces in Afghanistan as they care about the terrorists our Canadian Forces are fighting over there.
I think Richard Fadden, the boss of CSIS, had it right when he said that there is a “loose partnership of single-issue NGOs, advocacy journalists and lawyers" who have rechristened terrorists as "folk heroes". I'd add to that list opposition MPs, especially the NDP and the NDP wing of the Liberals, such as Ujjal Dosanjh and Bob Rae.
Canadian troops are operating in Afghanistan, an imperfect country to be sure, but a sovereign country nonetheless. By definition, a strong, liberal democracy wouldn't need Canadian Forces to help them.
When our soldiers capture Taliban terrorists, they hand them over to the Afghans. Needless to say, Afghan jails are not comfortable, liberal places. I'm not sure what the practical alternative is, though: should we build Canadian-style prisons in Kandahar, and fly in Canadian prison guards, cooks, nurses, librarians and other Canadian-standard prison staff? (If so, get ready for a lot of normal Afghans to beg to become prisoners, simply to get Canadian-level health care, meals and other prison luxuries.) Or should we bring the terrorist flotsam and jetsam back from Afghanistan to the Kingston Penitentiary -- and start building several more? Perhaps we could even set up an Immigration Review Board right there in Kandahar, for Taliban terrorists to apply for refugee status in Canada. It's surely true that they face "persecution" by the Afghans they're trying to enslave.
These are the sort of practical questions I have asked of critics who oppose the historical judicial approach of summary trials in the theatre of combat for captured terrorists and pirates. The Ottawa Citizen's Dan Gardner excoriated me for my appalling lack of liberalism, but declined my invitation to give me a practical alternative. Maybe he has time now.
I think that there is an elite sympathy for terrorists that is a twisted manifestation of anti-military, anti-Western views. It's a mutation of anti-war sentiment; the Liberals are stuck publicly "supporting" the Afghan mission that they convened when they were in power. Many -- especially in the Dosanjh-Rae wing of the party -- hated that. So while they are politically boxed in and thus unable to denounce the war directly, they can all but denounce the war by effectively cheering for our enemies. And that is exactly what they do -- supported by a chorus in the media.
I think most Canadians share my unease with the media-opposition chorus cheering for our enemies. But I don't think most Canadians are following the hour-by-hour political games in Parliament this week over terrorists we catch in Afghanistan.
Today's micro-inside-baseball story was a procedural battle. A Parliamentary committee -- dominated as they are in this minority Parliament by the opposition parties -- has demanded to see all government documents on the subject of the Afghan detainees, without the censor's pen crossing anything out.
The government has insisted that there are official secrets that ought not to be disclosed; and they have argued that it is the executive branch of government that makes those decisions, not the legislative branch.
The separation of powers is not the only argument; another is that there are statutory prohibitions on publishing such secrets, such as the Security of Information Act (formerly part of the Official Secrets Act). That law is pretty clear: if you have a state secret, you can never tell it, even if Ujjal Dosanjh asks you.
There has been an interesting exchange between a lawyer for the House of Commons demanding the unredacted documents and a lawyer for the government refusing. You can see the exchange here. I don't recommend you click the links to the original letters unless you are a lawyer or enjoy dense legalese, and in either case that you have plenty of time on your hands. But I will call your attention to one paragraph in one of the letters.
It's from Robert Walsh, the Parliamentary lawyer who has given his opinion that any Parliamentary committee may demand to see any document, whether it's secret or not, and whether the Official Secrets Act or any other law forbids that secret from being told. See page 3 of his letter, here, under the heading "Government officials'.
Walsh argues that no matter what any law says, if a Parliamentary committee tells a civil servant, military intelligence officer, diplomat, or anyone else (presumably including the Prime Minister himself) to tell that committee a secret, they have to do so.
Walsh is proposing something quite extraordinary here: that Parliamentary committees are exempt from any and every law in Canada that they, in their own opinion at any given moment, want to be exempt from. Actually, it's more than that: he's proposing that a Parliamentary Committee has the power to force anyone who falls within their grasp to violate any law. He's arguing that since Parliament makes the laws -- the Evidence Act, the Security of Information Act, presumably even the Criminal Code -- that a committee of a dozen MPs can, on any given afternoon, just tell a soldier/diplomat/civil servant/Prime Minister to give them any state secret, any confidential fact, any privileged document, no matter what the law says.
That's just insane.
Walsh is arguing that a dozen MPs can unilaterally carve out an exemption from a law written by all of Parliament -- that is, all MPs in three votes, followed by all Senators in three votes, followed by the Governor General's proclamation. Walsh is arguing that a dozen MPs can change a law on a whim that 308 MPs and 105 Senators took months to finely craft.
And the weirdest thing is that Walsh is using the doctrine of Parliamentary privilege to make his case. He's pretending he's invoking Parliamentary privilege on behalf of a small committee of MPs against the executive power of the government, but he's actually invoking Parliamentary privilege on behalf of a small committee of MPs against all other MPs. That just doesn't make sense.
If Parliament, properly constituted, chose in its wisdom to write an exception to all of these laws -- and to others, including the Privacy Act -- that expressly permitted a Parliamentary Committee to compel anyone to violate an oath of secrecy or betray the national interest, that would be one thing. Obviously, such a bizarre loophole would never be passed by a sober Parliament -- it's only being demanded, on the fly, by an opposition that places a one-day media splash ahead of the long-term security interests of the country. Those interests include being able to communicate confidentially with other countries' politicians, diplomats, military and security services without the fear of having secret messages splashed in public to the delight of the press but to the detriment of the nation.
Parliamentary privilege is an ancient power designed as a shield -- to protect Parliament from interference from other forces, such as a vindictive king. It was meant to protect MPs and their staff from violations and harassments. It was not intended as a sword, through which MPs could themselves violate and harass other branches of government.
Robert Walsh is obviously caught up in the excitement of a good Parliamentary cut-and-thrust. But his proposal -- that a committee of Parliament can distort any statute written by the whole of Parliament, and that Parliamentary privilege can be used as an offensive sword rather than a defensive shield -- is a profound threat to the integrity of all Canadian foreign affairs and military efforts and indeed to any other government department, foreign or domestic. I think that, once this detainee issue recedes in the political rear-view mirror, any serious Parliamentarian in the opposition benches will realize that Walsh's proposal not only commits a grievous blow to the integrity of the government, but also radically undermines the rule of law. It would turn any Parliamentary committee into a Star Chamber, where politics trumps legal precedent.
I think that's hard for some journalists to see, because they're caught up in the excitement of the hunt and, frankly, writing about national secrets is just too much of a temptation for many journalists to pass up in the name of security.
The mainstream media's general antipathy to anything military set the table for this fight; the Parliamentary Press Gallery's general opposition to Harper makes them eager to side with any antagonist, be they Taliban or indiscreet diplomat; and their self-interest as journalists is just the icing on the cake.
That's called a perfect storm on Parliament Hill; but I don't think most Canadians are as engrossed, and those that are watching it don't share the press gallery's sympathies.
Once this story fades -- likely over Christmas -- it will be interesting to see if the opposition, with Walsh's encouragement, tries to subpoena other witnesses, and press them into breaking their statutory oaths on other matters, too. As Walsh says, nothing is exempt. Presumably that would apply to citizens' criminal records, tax returns or even health records, too.