Tories making 'mockery' of Parliament by withholding Afghan documents: legal expert

[searay]

Whether it's the Afghan detainees, or Sidewinder, the MO is the same. DENy, RIDICULE, DESTROY CAREER.
There's some interesting stuff if you Google 'Project Sidewinder'

there's this.. from the Ottawa Citizen.

http://www.canada.com/ottawacitizen/news/story.html?id=0f6538ae-b5bb-43f6-9c0e-04b53aa35053

 

[Aardvark154]

And eventually..courts decide between the two opinions.

On this I agree with you OldJones. Not only do we both know that “the Devil may quote scripture for his own purposes”, but, for every expert one side can call, another can be called for the opposite viewpoint.

.

 

[oldjones]

There have been cases in our tradition when 'miscreants' have been summoned to the Bar of the House, and tried by Parliament. I wouldn't know whether the right and privilege of acting as a Court is one which our Parliament has forsworn, but it does speak to who is to be supreme in matters of law.

 

[Dandy_Dapper_Boy]

General interests
Jean Chretien prorogued Parliament four times during his time as Prime Minister. Canada needs to adapt the same political stance as Australia. They are one of the few democratic countries who are not dealing with a muslim infestation, and when it comes to terrorists, I agree with John Howard

Attach the positive terminal to the terrorists left ball, and the negitive terminal to the terrorists right ball. Oh yea, water helps.
Come on Canada, where are your gonads?

we are bringing our boys home in body bags, and we are concerned with Afghan torture why?

 

[fuji]

we are bringing our boys home in body bags, and we are concerned with Afghan torture why?

The Taliban are growing in force in Afghanistan by about 20% per year despite our killing large numbers of them. That's because every time we kill one, or torture one, his sons get pissed off and sign up. Worse, it turns out we've often killed or tortured the wrong people, innocent people who had nothing to do with the Taliban. We aren't going to win this war by killing or torturing a lot of people, eventually we'll have the whole country against us if we do that.

 

[oldjones]

General interests
Jean Chretien prorogued Parliament four times during his time as Prime Minister. Canada needs to adapt the same political stance as Australia. They are one of the few democratic countries who are not dealing with a muslim infestation, and when it comes to terrorists, I agree with John Howard

Attach the positive terminal to the terrorists left ball, and the negitive terminal to the terrorists right ball. Oh yea, water helps.
Come on Canada, where are your gonads?

we are bringing our boys home in body bags, and we are concerned with Afghan torture why?

Torture is the answer? You cannot be serious.

 

[landscaper]

I'm saying a Parliamentary order is the law.

Correct me if I am wrong but does a law not have to be passed by parliment , be reviewed by the senate and committees and go through three readings before being proclaimed into law by the Queens representative? Or has the parlimentary system in canada changed while I was away yesterday?

The other point is how does one law supercede another?

 

[landscaper]

i would just like to know what's so secret about handing over detainees to the Afghans? It already appears that we did it on at least one occasion, realized he was being swatted with a shoe, and we went and got him back.
I say, if the government calls the inquiry, then the onus is on them to provide the documents that the committee needs to complete it's work. To me, it smacks of guilt, and they are hiding something, I haven't yet heard on what basis the documents were declared ''secret''.

Don't shoot the messanger, produce the documents to show the where the truth is with respect to his allegations. To vilify him suggests that he had an alterior motive in trying to discredit his employer.

He was good enough to get this difficult posting, but now he's so low he can play handball against a curb. (The Cretien government did the same thing to our Hong Kong diplomat Brian McAdam and the Sidewinder report)

The last thing I wsh to say, is that the government's hasty and aggresive vilification of Richard Colvin, who after all, was posted there by this government to be the #2 diplomat in a war zone, smacks of something other than the truth being presented to the Canadian public by the government.

Whatever happened to the 'whistleblower' protection program???


This may be part of a larger effort to discourage other civil servants from coming forward.

That's troubling if true ...

The question of handing over the captives to teh Afghans is a long standing policy of this and previous governments. There is an agreement between the govt's that outlines how where and why the captives should be turned over, and it dictates how the Afghans should treat prisoners that we turn over.

The issue is that some of the prisoners were mistreated. That in some posters view is a war crime in spite of the adherance to the letter of the geneva conventions on this issue.

When it was discovered that prisoners were mistreated they were recovered from the Afghans and no further transfers were done until the situation was clarified, and then transfers were continued. That is in accordance with the conventions.

Mr Colvins testimony before committee had no first hand evidence of mistreatment , all his testimony was in effect hearsay. Is he wrong about mistreatment or torture , probably not, at the same time can he point to somebody who was tortured or msitreated and provide before and after pictures, documented medical reports or even first hand knowledge? No he can not.

The issue becomes what diod the government know and when , In some posters minds the MOND is complicit in war crimes, with no proof beyond hearsay evidence that a cop or soldier of another country violated the agreement between countries and beat a prisoner. The fact he is the minister and should have known a national gove would allow the violation of a treaty.

The classification of documents is a process that is regulated by a standard framework of requirements, teh classification is based on what the document is. For example personal files are typically " classified" that is to say the files are one step above the restricted level and below secret.

The requirement to access classified documents is based on two things

First the security clearance of the person viewing the documents and second the need to know. Just because you have the clearance does not mean that you can walk into revenue canada and demand to see the tax returns of person or company A .

Military files specifically operational files typically have a secret clearance level , the reason for that can very to what is in the file to what the people or units in the file are doing to teh equipment being used. There are literally hundreds of reasons for the clasification.

Most M.P.s do not have the required security clearance to view these files and even if they did they could not disclose the contents in open committee or in the House of Commons or Senate, as those are open forums .

The issue of classifing documents to keep them away form opposition MPs has come up and there is a solution a number of Judges have Secret and Most Secret clearances, specifically to deal with immigration matters that have secret componants. One of those judges could view the documents in camera and issue a statement regarding the classification and if in his opinion it is warranted. If he decides it should be reduced it then can be reduced.

As far as whistle blower protection Mr Colvin has not been fired or reduced in rank due to his actions, the govt is paying his legal fees, so at present he does not need the protection , his profile on the issue at present is his best protection.

 

[fuji]

Correct me if I am wrong but does a law not have to be passed by parliment , be reviewed by the senate and committees and go through three readings before being proclaimed into law by the Queens representative? Or has the parlimentary system in canada changed while I was away yesterday?

The other point is how does one law supercede another?

What's classified, and what's not classified, is an executive decision. Parliament ORDERED the executive to declassify it. The executive MUST obey. If it fails to, Parliament can, in theory, jail it until it does obey.

The executive cannot refuse to obey a Parliamentary order.

 

[fuji]

That in some posters view is a war crime in spite of the adherance to the letter of the geneva conventions on this issue.

No, the issue is that the governments actions were a violation of the letter and spirit of the Geneva convention on the issue. Specifically you cannot hand over a detainee to a party that lacks EITHER the will OR the ability to uphold the convention. There is nothing in the GC that says this requirement can be signed away via some trumped up agreement.

When it was discovered that prisoners were mistreated they were recovered from the Afghans and no further transfers were done until the situation was clarified, and then transfers were continued.

If that were true there would be no issue. It is precisely because that is NOT the case that there is a problem. The war crime is that the government did in fact continue the transfers even after they had reports of torture and abuse. That IS the issue.

Had the government done what you say, which I bolded, then yes they would be in full compliance with the GC. They did NOT do that.

Military files specifically operational files typically have a secret clearance level

Their classification is ultimately an executive decision. Parliament ORDERED them declassified.

As far as whistle blower protection Mr Colvin has not been fired or reduced in rank due to his actions, the govt is paying his legal fees, so at present he does not need the protection , his profile on the issue at present is his best protection.

Actually, no, the government stopped paying his legal fees. That is the substance of the claim that the government is persecuting him.

 

[Captain Fantastic]

Their classification is ultimately an executive decision. Parliament ORDERED them declassified.

On this point, I will strongly disagree with you. There is a reason for classifying documents: to protect the troops/operatives on the ground. That should take precedence over poltical grandstanding. If a politician doesn't have security clearance, then they should not be allowed to view documents that could compromise the safety of our troops. Maxime Bernier ring a bell?

And yes, I know that they can black out the details, but that invariably causes issues unto itself. Cries of cover-up and the like. So long as our Parliamentarians are mature enough to understand why they will be privy to very little information and keep their word not to share the documents, then in some cases, it MAY be okay to let them see the documents.

However, I for one do not want Parliament to have the ability to order whatever they want to make a political point. As I've stated in an unrelated thread, that is a slippery slope.

 

[fuji]

On this point, I will strongly disagree with you. There is a reason for classifying documents: to protect the troops/operatives on the ground.

That may well be. Nevertheless:

1. The classification given to various documents is an executive decision, it is within the power of the PM to declassify

2. The PM cannot refuse an order of Parliament

If you think the politicians we have elected are making bad decisions, if you think they are issuing inappropriate orders, then don't vote for them next time.

And yes, I know that they can black out the details, but that invariably causes issues unto itself.

Parliament has the authority to order that they be released WITHOUT any details blacked out. Whether that is a good idea or not we can debate (I know your view) but let's be clear: Parliament does have the authority to issue that order.

However, I for one do not want Parliament to have the ability to order whatever they want to make a political point.

The Prime Minister is an unelected appointee(*). Parliament is elected. It is important that supreme power rest with those who actually got voted into office.


(*) Often, but not always, chosen from among the elected MP's, but as PM, unelected. Several PM's have been nothing more than ordinary citizens when appointed to the office.

 

[oldjones]

Point is Captain Fantastic that the Harper blackout preceded the Parliamentary Committee. The Military Police Complaints Commissioner—an officer with top security clearance—was doing his proper job, investigating these complaints, and asked for documents he needed to do so. He was refused all such documents w/o any attempt to work out a way for him to do his job and keep the files secure, such as redacting sensitive passages. Just blanket refusal, in spite of his clearance and need to know. They then looked at the guys contract and saw if they stalled a few months, it would expire, and the nasty questions would go away.

Stupid and shortsighted as pretending to fix election dates. Or imagining that saying so would make deficits impossible.

It could could have been kept a minor administrative matter, and the kind of trouble one expects from a new and difficult mission if the government hadn't tried to stifle accountability. But shut down an Official Watchdog and the Parliamentary Committee (as in the House, as in the land, only one of three members is a Con) gets to smelling the blood in the water from the government's self-inflicted wounds.

Point is: They're our troops, they're supposed to behave a certain way, and we have guys like the Commissioner to ensure they do. IF they can't do it, then the ball gets kicked upstairs, and if the Government won't do the job (which would be the proper, efficient and desirable course) then Parliament will have to, clumsy though that invariably is. And like it or not, those documents are only as secret as Parliament says they are, because Parliament is supreme.

If they aren't, please name the Dictator. I missed the ceremony.

 

[landscaper]

Unfortunatly Fuji you can not rewrite laws so that they conform to what you want.

The GC specifically says that prisoners can not be handed over unless the captors are convinced that they will be treated as per the relavent accords.

Your contention is that an agreement between two govts is not acceptable. The is blatant bullshit . The agreement encompasses the letter and the spirit of the GC. The Canadian govt has lived by both the letter of the law and the spirit of the law. Your constaint attempts to make the laws say what suits your political agenda is getting a little worn around the edges.


If that were true there would be no issue. It is precisely because that is NOT the case that there is a problem. The war crime is that the government did in fact continue the transfers even after they had reports of torture and abuse. That IS the issue.

Had the government done what you say, which I bolded, then yes they would be in full compliance with the GC. They did NOT do that.

So instances where problems were noted and transferes stopped people recovered from the govt are not acceptable to you even though that is exactly what the GC calls for is not acceptable practice?

Your contention is that the govt of canada is guilty of war crimes because a low level afghan police officer or soldier mistreated a prisoner despite the agreement between the two govts. For it to be a war crime the two govts would have to have signed the agreement knowing that the afghans were going to violate it.

The classification of documents is not an executive decision in canada it is bound by the requirements and policies of the ministry involved. If the documents were classified to keep them away from prying eyes there is a remedy for that , the judge I spoke of earlier.

The concept that you propose , ie., that parliment can order the government to break the law is farsical on its face, if parliment does order the government ot break the law who gets charged criminally for the violation?

The fact that MP's are generally only cleared to the classified level for security clearances means that most if not all of the opposition MP's can not look at Secret level documents to let them do so breaks the law. Forcing somebody to do so also breaks the law. Ordering the declasification of the documents would have the same result.

Consider the worst case, the parliment orders the declassification of documents and reads them into the hansard during session. There is information in there that leads to an ambush or IED explosion that kills somebody. Who is responsible?

 

[fuji]

The GC specifically says that prisoners can not be handed over unless the captors are convinced that they will be treated as per the relavent accords.

Agreed.

Your contention is that an agreement between two govts is not acceptable.

No, my contention is that once Canada knew the agreement wasn't being upheld further transfers were unacceptable. You had it right above, the government needs to be convinced the agreement will be upheld. When it is convinced the agreement is NOT being upheld it cannot continue transferring prisoners.

So instances where problems were noted and transferes stopped people recovered from the govt are not acceptable to you even though that is exactly what the GC calls for is not acceptable practice?

That's fine, that's not the problem. The problem is that Canada continued handing over prisoners even after there were good reasons to believe the agreement wasn't being upheld.

For it to be a war crime the two govts would have to have signed the agreement knowing that the afghans were going to violate it.

False. For it to be a war crime the government would have to hand over further prisoners even after they knew the agreement was being violated. That is in fact what they did.

The classification of documents is not an executive decision in canada it is bound by the requirements and policies of the ministry involved.

Reread what you just wrote. Who do you think makes up the requirements and policies in a Ministry?

Hint: The Minister.

Guess who the Minister is responsible to?

The Minister has the power to declassify documents, and Parliament has the power to order the Minister to do so.

The fact that MP's are generally only cleared to the classified level for security clearances...

...is irrelevant. Individual MP's do not have any particular power other than a right to vote on motions in Parliament. 50% plus 1 MP's in Parliament, on the other hand, can issue orders that MUST be obeyed.

The whole question of "breaking the law" is actually irrelevant here: The Minister in fact has the legal authority to declassify documents.

 

[Anbarandy]

The Taliban are growing in force in Afghanistan by about 20% per year despite our killing large numbers of them. That's because every time we kill one, or torture one, his sons get pissed off and sign up. Worse, it turns out we've often killed or tortured the wrong people, innocent people who had nothing to do with the Taliban. We aren't going to win this war by killing or torturing a lot of people, eventually we'll have the whole country against us if we do that.

Ah yes, the 'innocent farmer' syndrome.
Ah yes, the 'tomahawked inncoent farmer's orphaned son' syndrome.
Ah yes, the 'hot oil masage, manicure and haristyle' detainee syndrome.

The invader's are butchering innocent Taleban!

 

[oldjones]

…edit…

Consider the worst case, the parliment orders the declassification of documents and reads them into the hansard during session. There is information in there that leads to an ambush or IED explosion that kills somebody. Who is responsible?

Pretty much the worst case considering the documents refused deal with specific cases quite some time ago.

What is the worst case is that the Government of Canada so mistrusts its own appointed enquiry commissioner and the Parliament of Canada that they can think of no way to balance security and the need to investigate, so they dismiss Parliament rather than try. What poverty of intellect!

The only recent pol I can imagine admiring their dictatorial impulses qould be Jean Chretien, who was skilled enoughat politics he never needed to resort to such brute tactics. Certainly it betrays every democratic principle of the REform Party.

 

[fuji]

Ah yes, the 'innocent farmer' syndrome.
Ah yes, the 'tomahawked inncoent farmer's orphaned son' syndrome.
Ah yes, the 'hot oil scalding flesh' detainee syndrome.

The invader's are butchering innocent Afghans!

I fixed your post.

 

[landscaper]

The only recent pol I can imagine admiring their dictatorial impulses qould be Jean Chretien, who was skilled enoughat politics he never needed to resort to such brute tactics. Certainly it betrays every democratic principle of the REform Party.

This would be the same PM who shut down a judicial inquiry because it was getting to close to the govt .

Documents that refer to operations and operational paterns and deployments do not have a best before, or do you think having to reorganize the operational status of a brigade while in operations is a good idea?

Did I miss somethin g diod the government strike an inquiry on this subject while I was having my hair done?
Not trusting the parliment of canada to keep its mouths shut about secured information when there are political points to be made is a good thing. They cvould not resist the oportunty to score points .

 

[fuji]

This would be the same PM who shut down a judicial inquiry because it was getting to close to the govt .

Any party, if left in power long enough, starts to feel entitled to be there, and starts to abuse the power that has been given to it. This is why it is so important that we uphold basic democratic principles, regardless of politics. If it were a Liberal government of an NDP government refusing to obey an order of Parliament I would be just as angry. To me it's a sign that Harper has been in power so long that he is now taking Parliament and voters for granted.

At this point Harper seems to see Parliament as some sort of electoral college, and considers all power to be vested in himself personally. That's dangerous.

Documents that refer to operations and operational paterns and deployments do not have a best before

Parliament decided that they should be released, and Parliament has the power to make that decision. That order of Parliament declassifies the material. If you think it's a bad decision, if you think it should have remained classified, then don't vote for these guys in the future, just as if you think your elected representaitves pass bad laws you ought not to vote for them again.

It is not just some dude somewhere arguing that it should be released, it's an order authorized by a majority of the elected representatives of the Canadian people.

We elect these guys exactly so that they will make these sorts of decisions on our behalf.