Wednesday’s document dump of government files on Afghan prisoners captured by Canadian soldiers represents everything Ottawa is willing to divulge on the treatment of these detainees.
It will be several thousand pages – building on the 10,000 or so pages of records already made public on the handover of prisoners to Afghan jails widely known for torture and mistreatment.
But don’t bet on finding evidence that might settle the question of whether Canadian soldiers or government officials knowingly or deliberately turned over prisoners to abuse.
The Harper government, together with two opposition parties, set up the process back in 2010 for screening and filtering these documents in such a way that walled off from scrutiny the most confidential deliberations on the subject.
The 2010 inter-party deal on the release of documents, which Jack Layton’s New Democrats boycotted, stipulated that there were two categories of documents that would be withheld from MPs – and by extension, from the public.
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 to Ottawa by Justice Department lawyers.
The deal said: “Cabinet confidences and information subject to solicitor-client privilege are classes of information that the Parliament of Canada has long recognized are sensitive and may require protection from disclosure.”
The 2010 accord between the Conservatives, the Liberals and Bloc Québécois assigned MPs from each of these parties to scrutinize records on Canada’s record in Afghanistan.
A panel of three arbiters – former judges – vetted documents that Ottawa claimed were cabinet confidences or legal advice to ensure this censorship is justified.
A separate report from these jurists was be tabled in Parliament Wednesday along with the stacks of Afghan detainee records.
Keeping legal advice secret represents 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.
The record exemptions protect more than just the Tories, who only inherited the war in Afghanistan when they took power in 2006. It also protects cabinet decisions made by the former Liberal government in 2005.
Defenders of these loopholes say 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 critics have said the panel of MPs should have been allowed to see legal advice from government lawyers. The George W. Bush administration, for instance, waived the solicitor-client privilege to allow the release of controversial memos that advised what maltreatment was legally acceptable.
The Globe and Mail will be publishing the detainee documents as we receive them.
As the documents are made public at globeandmail.com, readers will be able to comb through the records and flag noteworthy passages. Follow our reporting on these documents at www.globeandmail.com/politics .