Liberal MP Bob Rae holds blacked-out detainee-related pages released by the government.
The Globe and Mail has obtained a late-stage version of the Harper government's pact with opposition MPs to share previously secret records on Afghan prisoners.
The Liberals are privately insisting the version obtained by The Globe is not the final version - but is in fact a draft from when the NDP quit negotiations. Liberal staff say there have been changes made by refuse to detail them or provide the latest version of the deal.
The six-page draft also lays bare the reasons why the NDP has walked away from the table and continues to insist that the deal shields the most crucial detainee information from scrutiny.
The NDP, now boycotting this inquiry, accused the Liberals of caving to the Tory government and said the deal as it stands will not allow the most secret deliberations over the handling of detainees to be laid before MPs. It still wants a public inquiry.
The Tories and Liberals refused to release a copy of the agreement Tuesday - saying it wasn't ready to be tabled in Parliament - but acknowledged the deal stipulates there are two categories of documents that will be withheld from MPs.
These disclosure loopholes include records that the Harper government declares to be matters of cabinet confidentiality - advice for cabinet, briefs, memos or records of cabinet discussions - as well as any legal advice provided by Justice Department lawyers.
"The things you need to know - What did the government know? When did they know it? What advice were they given? Did they follow it? - that's the stuff we will never see," NDP defence critic Jack Harris said.
Keeping legal advice secret could be a major exemption given that the legality of what Canada was doing - and whether it could be in violation of the Geneva Conventions - is a crucial question in the detainee controversy. The Geneva Convention makes it a war crime to transfer detainees to those who would abuse them and obliges the detaining power to recover transferred prisoners if they are being maltreated.
University of Ottawa professor Amir Attaran, an advocate for greater disclosure on detainees, calls the deal a failure.
"It is an own-goal for the opposition if they sign this agreement, surpassing any fumble seen in the World Cup," Professor Attaran said.
Prof. Attaran laid out six criticisms of this version of the deal:
"1. It pretends that Cabinet confidences are impenetrable by Parliament. There is no law to say that this need be the case, and it was not something that the Speaker said was the case. On the contrary, the Speaker said that the power of Parliament to require documents is absolute.
2. It also pretends that solicitor-client privileged opinions of government lawyers are impenetrable by Parliament. This is wrong, for the reason already stated, but it also gravely misapprehends the entire notion of "solicitor-client privilege" in a simpleminded way that I am surprised duped the opposition. Pause to think, "Who is the client of a Government of Canada lawyer?" and you can only conclude that the client is the Government of Canada. ... There is no legitimate solicitor-client privilege claim.
3. The agreement at para 6 allows any member of the review committee-any ONE member-to refer a disputed document to the panel of arbiters. With 20,000+ pages of documents expected, that could be abused to refer all the pages-every single one-totally swamping the review committee.
4. The review committee, further, is quite at variance with the terms of the Speaker's order, which said that it was up to the members of the House to decide what documents would be released: if, when, and how. Yet now the proposed agreement puts that decision in the hands of a review committee of retired judges, who are not Parliamentarians. One hopes the Speaker rejects the agreement on this basis.
5. The referral of documents to a review committee of ex-judges is also worse than referring the same to sitting judge. At least sitting judges, in a real court, have rules that they follow, and there is a (mostly) open process where submissions can be made - by the public, by the press, and so forth. Nothing of the kind exists here, so actually, it would be better if this agreement not be signed. We don't even know who the ex-judges are ...
6.This draft agreement shows nothing if not that the opposition parties in the House failed to bring the same quality of thinking to the problem that the Speaker did. It's an own-goal. One might think they agreed because they don't want an election now, but there are various ways they could have solved this conundrum without provoking an election."
The accord between the Conservatives, the Liberals and Bloc Québécois will see three MPs - one from each party - start scrutinizing uncensored records on Canada's record in Afghanistan as early as July. The first opportunity to make public any discoveries should be the third week in August, based on Commons rules that restrict when information can be released via Parliament during the summer holidays.
Mr. Harris said this deal doesn't fit with the spirit of a historic ruling in April where Commons Speaker Peter Milliken declared that Parliament had an absolute authority to demand un-redacted versions of the detainee documents.The record exemptions protect more than just the Tories, who only inherited the war in Afghanistan when they took power in 2006.
A panel of arbiters - likely former judges - to be chosen jointly by the Tories, Liberals and Bloc will scrutinize any documents that MPs want to make public to ensure their release doesn't risk national security. Arbiters will also double-check any records that the government claims should be exempted as cabinet confidences or legal advice.
Michel Drapeau, a retired Forces colonel and a professor of military law, said he thinks it's important to keep secret memos for cabinet and deliberations by ministers in order to protect the power to give "unvarnished advice" to government.
But he said he thinks the panel of MPs should be allowed to see legal advice from government lawyers. The George W. Bush adminstration, he noted, waived the solicitor-client privilege to allow the release of controversial memos that advised what maltreatment was legally acceptable.
Mr. Harris alleged the Liberals - a party currently divided over Michael Ignatieff's leadership - don't want to risk a showdown that could trigger a trip to the polls.
"The Liberals were looking for a deal as far as I could see. They're not prepared to take this to the point of confrontation that could result in an election," Mr. Harris said.
Tuesday's deal -- which put flesh on the bones of a May 14 agreement in principle -- caps seven months of fractious debate that included an unscheduled shuttering of Parliament and threats to trigger an election. Opposition MPs have demanded access to uncensored government records to test repeat allegations that Canada knowingly handed over prisoners captured in Afghanistan to torture by local interrogators.
Steven Chase