Of nervous excuses and rogue government

"But that was in another country. And besides, the wench is dead."

Damian Brooks of The Torch is wearying of Torturegate. So is the unrepentant and discredited Christie Blatchford. And throw in--why not?--a couple of former ambassadors (against the 111 who have at this point protested the government's demonization of Richard Colvin).

I don't blame them for their evident Angst. The hawkish side of the Afghanistan debate has been taking heavy shelling over the past few days. The possible implication of our military and civilian leaders in war crimes is serious business.

Move along, they say, with evident discomfort. Little to see here. No big deal. Can't we please talk about something else? Like winning the damn war? As for Colvin, well, maybe the government used overly-large brush-strokes, but he's not above criticism. Is he?

Back to these commentators and their arguments in a moment.

The media have buried the lede this morning in their coverage of yesterday's House of Commons motion to compel the government to hand over unredacted documents relating to Torturegate. They have noted that Harper's regime is defying Parliament, but they aren't really putting it that way, and their concerns are muted.

This, for example, is the very last graf in the National Post story:

The government's refusal to comply with the uncensored documents motion, approved by all three opposition parties in a 145-143 vote Thursday, was condemned as "an affront to our system of government" by Liberal MP Bryon Wilfert, vice-chairman of the special Commons committee on the Canadian mission in Afghanistan.

The Toronto Star gets it, but only sort of:

Prime Minister Stephen Harper's government has put itself on a collision course with the will of Parliament, refusing an order to produce all documents related to Afghan detainees and Canadian knowledge about their potential torture.

The refusal sets the stage for a potential parliamentary crisis, not unlike the one that gripped the country one year ago, with Harper's minority government in a standoff with the three opposition parties.

And so does the Canadian Press, again sort of:

It all leaves the country potentially in the grips of another constitutional melee over which body should reign supreme: Parliament or the government.

One NDP source said the Commons might be forced to rule the government in contempt of Parliament, which would eventually entail a confidence vote.

A Liberal official dismissed that possibility, but suggested Defence Minister Peter MacKay could be called to the "bar" in Parliament to answer questions, and be removed of his seat if deemed in contempt.

But the coverage is almost diffident. "Parliamentary crisis?" Certainly. But what of the implications? And "which body should reign supreme: Parliament or the government" presents the matter as a simple political contest of wills, sidestepping the fact that no such contest should even be taking place.

Any Civics 101 student can answer the Canadian Press' implicit question: Parliament is supreme, both constitutionally and by the conventions that shape the Westminster system of government, and in particular the very Canadian concept of "responsible government." It is not absolutely so, because it is reined in by the Canadian Charter of Rights and freedoms, and by the realities of a federal system with provincial legislatures; but the executive branch is accountable to the legislative branch, and is constitutionally bound to bow to its will. That's what "responsible government" means.

Don't take my word for it. The Law Clerk of Parliament is very clear indeed on the matter:

In keeping with the principles of responsible government, no part of the Government’s responsibilities can by law be categorically excluded or removed from its constitutional accountability to the House and its committees, otherwise it would soon become only partial accountability and perhaps after some years no accountability at all.

In other words, Harper's continued defiance of Parliament strikes at the very heart of our democracy. The House of Commons should not fall back on a vote on non-confidence. It should use its powers, which in this area are considerable, to force Harper and his ministers to the bar, and, if they remain in contempt, to impose the appropriate penalties.

And here is Section 18 of the Constitution Act:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

Effectively, at least in the short term, the government has exceeded its authority. Put more bluntly, it has unlawfully wrested power from Parliament, and it must be quickly brought to account.

This is, in fact, an escalation of a trend that began with the erratic behaviour of ministers like Lawrence Cannon (who argued that his decision to keep Canadian citizen Abousfian Abdelrazik out of Canada could not be reviewed by a court), and Gary Goodyear and Jason Kenney (who, contrary to well-established principles of administrative law*, interfered with independent granting authorities, in the one case threatening the SSHRC and in the other, cancelling a grant out of personal spite).

There is a slippery slope here, down which the government would happily toboggan further if permitted.

But back to the issue over which this increasingly rogue government is willing to violate the Constitution, as well as to Keen the independent chair of the Military Police Complaints Commission Paul Tinsley (who, like RCMP watchdog Paul Kennedy, is not going down without a parting shot or two).

After Gen. Walter Natyncyk's revelation that he had been badly briefed (while his predecessor, who left him holding the bag, has moused out), there is indeed consternation in the ranks. But the excuses are by now so worn-out that one senses that the alibiers are a little embarrassed, apart from Blatchford, apparently overcome by a fog of military pheromones.

Damian Brooks doesn't rationalize the government's blundering and heavy-handed actions, and he concedes that there is substance in the critics' claims--he's no simple-minded Conservative propagandist. But he takes a swipe or two at Colvin almost reflexively before he moves on. The gunshot residue test that is supposed to separate the civilian wheat from the Taliban chaff tended to ensure that the detainees were the latter, he says (but it doesn't), and he dismisses out of hand the large number of detainees released by Afghan authorities, in a less than convincing manner, not even mentioning that they actually complained to the Canadians about it.

His bottom line:

But the brutal and unfair truth is that the more we focus on detainees, the less we focus on something else. What else should drop off the table to accomodate our fixation on detainees? Because, like it or not, there's an opportunity cost to everything we do over there.

His heart is in The Mission, and he would like all this torture stuff just to go away so we can keep our eyes on the prize. I feel his pain.

Then there's that Globe and Mail columnist, at it again today. Shorter Christie Blatchford: well, sure, the government isn't above criticism, but the critics have just produced one detainee, and he wasn't very tortured. Besides, what can you expect from a "culture is demonstrably punitive, physical and primitive," to whom the Liberals decided we would hand over our detainees way back when?

Finally, the former ambassadors, swimming determinedly upstream, one of whom simply parrots Conservative government talking-points (with the now-obligatory mild criticism of its handling of the affair), and the other, on the basis of no apparent evidence whatsoever, accuses Colvin of having a personal agenda.

All rearguard action at this point, and I use the metaphor advisedly.

Two near-inextricable stories, one increasingly complex narrative:

When all is said and done, we can observe an increasingly fragile "yes, but" approach from the embattled war-boosters at the moment: it hasn't been a good few days for them. They're now finding it necessary, in fact, to distance themselves, if only in a nuanced fashion, from the blundering, bull-in-a-china-shop approach of the Harper government--which is a hopeful sign.**

But meanwhile, that government is becoming ever more dangerous. The Afghan detainee question, in this respect, is almost irrelevant: it just happens to be the particular ditch the government is willing to die in. But when the Conservatives are demonstrably willing to act in defiance of Parliament and the Constitution, no matter what issue is at hand, it's about time the alarms were sounded. And so far, those sounds are worryingly faint.

UPDATE: Great minds think alike.

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*Both Goodyear and Kenney need to remind themselves of the principles laid out in Roncarelli:

In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. ..."Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted.

**Damian Brooks reminds me that he has been consistent on the government's handling of the detainee issue since 2007.