Friday, May 14, 2010

Final and unreviewable

Kady has the terms of the tentative deal on Afghanistan torture documents. And while there are a few points which seem somewhat positive, on the whole the outcome looks to be something less than the opposition parties should have accepted.

The good news beyond what should have been expected already (i.e. full opposition MP access to unredacted documents) is that the documents will be accompanied by the ability to seek further information from government officials. We'll see whether or not the Cons instruct those officials to stonewall (and no, "(a)ssuming good all one can do" isn't a reasonable standard when Stephen Harper is involved), but there's at least some prospect that the opposition has secured some cooperation which will help them to get to the bottom of the documents.

On the surface, it's also a plus that relevance will be tested solely by the MPs involved. But that step itself looks to be a superfluous one which effectively undercuts the meaning of Parliament's previous order. In effect, the agreement suggests we're starting at square one as to what documents are "necessary" to enable the opposition to hold the government to account - and each document will have to be reviewed individually in a process which the Cons can stall in order to have it declared relevant and necessary.

But it's the next step in the process that's most problematic. Even after the MPs have decided that a document is relevant and necessary, a "Panel of Arbiters" will make its own "final and unreviewable" determination as to what will actually be released, with an implication that the rule will be summaries or redactions rather than full disclosure of anything. It remains to be seen who will be on the panel, and it's possible that the right panelists could result in reasonably broad disclosure - but there's little reason for confidence at this point, particularly with the same government that's fought tooth and nail to avoid disclosing anything having to agree to all panel members.

And it can't be ignored that the agreed process actually requires that all documents be reviewed and evaluated twice before they're disclosed - ensuring at least some delay, though again the amount remains to be seen.

In sum, then, while the agreement could have been worse, there are still far more ways for the process to go off the rails than the opposition should have been willing to accept. Which means that it's far too likely that those declaring victory now (and unfortunately the NDP was quick to do so) will end up having to eat their words.

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