First impressions

For the most part, I agree with Amir Attaran's comments on the now-released Afghan detainee document deal. But I'll add a couple of differences in interpretation, while emphasizing some of the implications that go far beyond the deal itself.

First off, there's one pleasant surprise worth noting, as I'm not sure that the deal actually does withhold any documentation from the review committee.

Article 7, which provides for the application of solicitor-client privilege and cabinet confidences allows the government to seek a declaration from the panel of jurists that information "should not be disclosed". But that language makes for exactly the same wording used in Article 6 for the withheld records generally, and similarly provides for the release of redacted or summarized documents "to Members of Parliament and the public".

In contrast, the section dealing with the committee members (Article 2) uses "access" language to describe the review process. So it looks like there's a distinction between "disclosure" outside the committee and "access" within it - with the latter applying to all of the records falling under the order of Parliament.

But while the process seems to allow for the committee members to see everything, it also seems designed to slow the release of any documentation to the public as much as possible. And it's even worse on that point than would be suggested by Attaran's concern about a single committee member referring documents to the panel of experts for review.

Under Article 6, the process for every single document found to be "relevant and necessary" by the committee is the same as the process applied in case of a dispute as to how to handle a particular record. In effect, absolutely nothing can be released beyond the committee without the panel reviewing it first - so even if none of the members go out of their way to gum up the works, the process is designed to minimize the flow of informaton to the public.

So in substance, the deal is surprisingly reasonable in making records available to the committee, while delaying any release of information to anybody who isn't bound by an oath of secrecy. Which on its face makes for about as palatable a compromise as could be expected between the opposition's desire to see the truth and the Cons' desire to stonewall against any accountability.

But there's a serious problem when one looks at the long-term effects of the deal. Part of the preamble includes the Libs and the Bloc agreeing to the following:

Recognizing that Cabinet confidences and information subject to solicitor-client privilege are classes of information that the Parliament of Canada has long recognized are not necessary or appropriate for the purposes of holding the Government to account.

Now, one could say that it hardly matters whether the opposition parties give their sanction to a particular theory given the Cons' propensity for inventing THREE HUNDRED YEARS OF PARLIAMENTARY TRADITION!1!!eleven!!! out of whole cloth where it suits their purposes. But the fact that Ignatieff and Duceppe are apparently willing to sign onto the theory that classes of information are "not necessary or appropriate for the purposes of holding the Government to account" is bound to weaken the opposition's hand in seeking to hold the Cons to account on other matters. And that win for arbitrary secrecy in the long game may be why the Cons were willing to sign onto the actual deal rather than dragging out this part of the process any further.

Update: Apparently the Libs have released a draft which softens the language about the effect of Cabinet confidences and solicitor-client privilege. Which surely increases everybody's degree of faith in the process.