We cannot yet fully understand the first issue because of the second issue. The second issue remains cloudy because the Conservatives have denied, attacked, and generally misdirected any attempts to understand the first issue, and now we know that they’ve done so in breach of parliamentary privilege. So to get to the bottom of the first issue, we’ve got to start by resolving the third. Fortunately, yesterday’s (28 April 2010) ruling by Commons Speaker, Peter Milliken¹ finally gets things moving.

Some background:

Since at least 2007, groups like the Canadian Military Police Complaints Commission, Amnesty International and the B.C. Civil Liberties Association have been attempting to uncover what may be an improper way in which detainees in Afghanistan were handled. They uncovered a fair amount of information to raise serious red flags. Sworn testimonies from senior officers that countered Conservative, Peter MacKay’s comments attempting to dismiss the allegations.

Back in 2007, we also started learning how the Conservatives’ orchestrated themselves to disrupt parliament. The Conservatives censored documents that they knew would prevent parliament from further investigating the Afghan detainee potential problem. But that was 2007. Things only got worse (from the perspective of accountability, transparency, and democratic governing) as the Conservatives launched a vicious attack on the respected whistle-blower Richard Colvin, then boycotted a special parliamentary committee that was supposed to look into the detainee abuse allegations. The Globe and Mail² has a timeline of some of the events that transpired between 2007 and 2010.

“November, 2009: The Commons committee reports to the House what it considered to be a breach of its privileges in relation to its requests for documents from the government.

December, 2009: It is revealed that the government has blacked out large sections of relevant files handed over to the MPCC inquiry. The Commons committee’s efforts to obtain information, including the unredacted reports of Mr. Colvin, are similarly stymied.”

The great problem is the third point that I mentioned at the beginning. The Conservatives repeatedly censored or otherwise blocked parliament from seeing the information they had. Often they reported that they had to do this in the interest of security. But that’s not a believable statement. It’s unlcear how it can be ok for your own party to see the documents but not others in the House of Commons elected by the Canadian people. It’s never been clear why non-Conservatives operating with all kinds of other sensitive issues to run the country could be considered a security risk–and as I’ll point out below from Milliken’s ruling, it’s also contrary to how our form of government is supposed to work.

Fortunately, after significant and careful consideration, Speaker Peter Milliken ruled on the issue. The CBC³ reported (26 April 2010)

“The federal government breached parliamentary privilege with its refusal to produce uncensored documents related to the treatment of Afghan detainees and must provide the material to MPs within two weeks, Speaker Peter Milliken has ruled.”

And this all goes toward the title of this post… a dose of democracy. Harper’s Conservative government hasn’t been operating within our democratic framework. Milliken’s ruling re-sets our expectations–it is simply not acceptable to abuse our democratic institutions. Milliken remarks in his ruling on the gravity of what he had to determine:

“As Speaker, one of my principal duties is to safeguard the rights and privileges of Members and of the House. In doing so, the Chair is always mindful of the established precedents, usages, traditions and practices of the House and of the role of the Chair in their ongoing evolution. It is no exaggeration to say that it is a rare event for the Speaker to be seized of a matter as complex and as heavy with consequence as the matter before us now.”

Referring to parliament’s power to have access to the documents, Milliken said

“In the arguments presented, the Chair has heard this power described as ―unabridged, ―unconditional, ―unqualified, ―absolute and, furthermore, one which is limited only by the discretion of the House itself. But this view is not shared by all and so it is a privilege whose limits have now been called into question.”

Who was calling those limits into question? Harper’s Conservative Government, by refusing to deliver upon the Hosue of Common’s request. Milliken’s logic on this is quite clear. After he enumerates previously established expert insight on parliamentary power and procedure, all of which support the point that parliament has unlimited power to request the documents in question, he discusses the Conservative government’s position.

“With regard to the extent of the right, the Chair would like to address the contention of the Minister of Justice, made on March 31, that the Order of the House of December 10 is a breach of the constitutional separation of powers between the executive and the legislature. Having noted that the three branches of government must respect the legitimate sphere of activity of the others, the Minister argued that the Order of the House was tantamount to an unlawful extension of the House’s privileges. This can only be true if one agrees with the notion that the House’s power to order the production of documents is not absolute. The question would then be whether this interpretation subjugates the legislature to the executive.”

In other words, the Conservatives (wrongly) tried to make parliament subservient while at the same time (rightly) reaffirming that the branches of government had to respect the “legitimate sphere and activity of the others.” It turns out the House hadn’t made an unlawful extension of its privileges. Thus the Conservative government must obey the House’s request.

“No exceptions are made for any category of Government documents, even those related to national security. Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question. Bearing in mind that the fundamental role of Parliament is to hold the Government to account. . .”

To finish things off Milliken gave the Conservative government two weeks to work with parliament to comply with the document requests. According to an article in the Toronto Star⁴ (27 April 2010)

“If they don’t, the Conservative government could stand charged with contempt of Parliament and the supreme law of the land.”

We’ll have to wait and see if the Conservatives take the ruling to heart and decide to operate in accord with our democratic institutions, rather than obstruct them.

(PS, here’s a link explaining the relevant parlimentary procedure)

“According to the 2006 report of the Afghanistan Independent Human Rights Commission, the country is suffering from the absence of the rule of law, a culture of impunity and abuse of power by government officials, a weak judicial system, slow progress on legal cases and lack of reforms in the judicial and social system.”

The article reports on Amnesty International and BC Civil Liberties Assoc’s legal process noting that “Amnesty International has written a letter to the federal government asking it to put an end to any transfers until the application is heard in court”

Radio Canada International² reported (12 March 2007) about then Conservative defence minister, Gordon O’Connor being unable “to meet with Abdul Noorzai of the Afghanistan Independent Human Rights Commission.” It explains

“Canada has signed an agreement with the commission to monitor the treatment of prisoners handed over to the Afghan government. Mr. O’Connor wanted the Monday meeting to ensure the commission is capable of the job. The leader of Canada’s opposition New Democratic Party wants established human rights organizations to oversee and report on the c[o]ndition of prisoners. Jack Layton [NDP] says Canada has a legal and moral obligation to ensure that its actions do not lead to torture.”

As the torture allegations build momentum against the Conservatives, a Reuters³ (23 April 2007) story reviews a Globe and Mail story about their interviews with 30 men who had been tortured in custody. It raises the issue of the Geneva convention:

Professor Michael Byers of the University of British Columbia, a leading expert in international relations, said if the allegations proved true, Canada had broken a United Nations treaty against torture and the Geneva Convention on the treatment of prisoners of war.

‘”I hope the Canadian people realize just how terrible a day this is. If this report is accurate, Canadians have engaged in war crimes,’ he told reporters.”

This was followed by Stéphane Dion [Liberal] asking whether Conservative Prime Minister Steven Harper demand defence minister Gordon O’Connor’s resignation. Harper responded that his government would take the allegations seriously. Strange he didn’t take it more seriously when it was discovered earlier that O’Connor had falsely told “legislators the International Committee of the Red Cross would inform Canada if detainees were being mistreated.”

Eventually we would indeed lose Gordon O’Connor and instead Peter MacKay would take over. Which has played out as anything but an improvement.Two years later and the Conservatives have done nothing to investigate or rectify the situation.

The Globe and Mail⁴ reported (20 November 2009) on the Conservatives’ approach to the testimony of whistleblower, Richard Colvin. Rather than take the issue seriously and respectful investigate the matter to ensure any wrongdoing was corrected, it launched into a vicious smear campaign.

“The Harper government devoted the day to a public-relations counteroffensive against Mr. Colvin through phone calls and e-mails to reporters, as well as Mr. MacKay’s attacks. It painted the career diplomat’s testimony as groundless and ‘ridiculous’ and suggested his reports of torture ultimately stem from Taliban propaganda.”

Then the Globe and Mail⁵ reported (6 December 2009) on MacKay’s many comments, they list at least six instances, countering the notion that Canada had transferred even a single prisoner to Afghan custody with the knowledge that the prisoner would be tortured.

Finally (6, 7 December 2009) the Globe and Mail⁶ uncovered sworn testimony⁷(PDF) from senior officers that went against Peter MacKay’s assertions. The testimony comes from the legal action of Amnesty International and the B.C. Civil Liberties Association. For example,

“There was one incident in which the CF took custody of detainee who had ” been turned’ over to the local ANP by the CF In “this case, the CF “learned that the detainee had been beaten by the local ANP. When they learned of this, they approached “the local ANP and reqested that the detainee be given to them. “The ANP complied. and the” “CF  subsequently transferred the detainee to the Provincial ANP.”

And that wasn’t the only instance reported. Will the Conservatives simply cycle through another minister and delay action once again, continuing to allow Canada to break the Geneva Convention?