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Afghan Detainees Panel Letter - June 15 2011

Afghan Detainees Panel Letter - June 15 2011

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Published by: CBCPolitics on Jun 22, 2011
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06/22/2011

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PANEL OF ARBITERS
June
15, 2011
The Honourable Robert Douglas NicholsonMinister
of
Justice
and
Attorney General
of
Canada284 Wellington Street
4th
FloorOttawa, Ontario
KIA
oH8
Dear Minister:
Re: Afghan
Detainee Documents
We are writing to you in
our
capacity as members
of
the Panel
of
Arbiters established by theMemorandum
of
Understanding dated
June
15,
2010, signed by the Prime Minister
and the
thenLeader
of
the
Official Opposition and leader
of
the Bloc Quebecois.
In
light
of
the developmentsto which we will refer below, we have been asked to transmit to you for tabling in
the
House
of
Commons
our
report
and
the results
of
the work completed by
the
Panel to date. Beforedescribing the material that we are transmitting, we think it appropriate to set out the contextfor its transmission.On April
13,
2011,
following the dissolution of the
40th
Parliament, we wrote to the signatories
of
the
MOU
to
set out our
understanding
of
the Panel's role under the
MOU
and
the
consequences of the dissolution on its ability to carry out its mandate.
As
we explained, weunderstand that the role
of
the Panel under the
MOU
formed part
of
the mechanism adoptedfollo"ing the April 27, 2010 ruling
of
the then
Speaker of
the
House of Commons for makinggovernment documents related to the transfer
of
Afghan detainees from the Canadian Forces
to
Afghan authorities available
to
the House
of
Commons in response
to
the House's order forproduction, without compromising the security and confidentiality
of
the
information
that
thedocuments contain. The
MOU,
as we understand it, contemplated
that
the
Panel would reporton its work to the
Ad
Hoc Committee
of
Parliamentarians, comprising Members
of
Parliamentdesignated by
the
signatories, which like
the
Panel was established in accordance with
the
MOU.The
MOU
also provided
that the
documents
that the
Panel
has
reviewed would be tabled in
the
House as they became available following the Panel's review.The
MOU
called for regular consultation (which occurred) between
the
Panel
and the
Ad
HocCommittee
of
Parliamentarians. At the request
of
the Committee, the Panel
had
organized itswork so as
to
be in a position to provide to the Committee
on
or about April
15,
2011
a reportdescribing its mandate, work and methodology, together with the results
of
its review
of
aninitial set
of
documents, taken from
the
documents assigned priority
by
the Committee.Following
the
sudden passing
of
fellow Panel member Donald Brenner
on
March
12,
2011, wecarried on with
the
completion
of
this important task, and instructed
our
staff to continue
their
work in preparing further documents for the Panel's review, so
that
these documents could in
turn
be released once
the
Panel
had
made its determinations concerning
the
redactions
that
theycontain.
L
 
I.:;·.·
.. 
-2
Our April
13
letter also conveyed
our
understanding that, according to Parliamentary law,
the
dissolution
of
the
40th
Parliament by proclamation of the Governor General
on
March 26,
2011
meant
that
the House
that
adopted the order for production of Afghan detainee documentsceased to exist,
and
those who were members of the House no longer
had
the
status
of
Membersof Parliament.
As
a consequence
of
the dissolution, therefore, there was no longer
an
Ad HocCommittee of Parliamentarians to which
the
Panel could provide its report
and
the
results
of
itswork,
and
no documents could
be
tabled
in
the House.
We
noted
that
while
the
MOUcontemplated
that under
certain conditions it would survive the dissolution
of
Parliament,whether those conditions would be met could not be ascertained until
the
House reconvened.We went
on
to acknowledge the considerable time
and
effort
that had
been devoted to fulfilling
the
mandate
of
the
Panel
under the
MOU. We
indicated that, in these circumstances, weconsidered
that
it
would
not
be appropriate to cease
our
work before completing what
the
Panelundertook to
the
Ad Hoc Committee
of
Parliamentarians it would seek to complete by midApril. We advised
that
we
therefore intended to finalize
the
Panel's report
and
the
preparation
of
the
documents
that
were to accompany it by April
15
or
shortly afterwards. However, since therewas no longer a Committee in existence to which we could deliver it pursuant to
the
MOU
and
the
Panel's undertaking to
the
Committee, we would retain this material pending
the
summoning of a new Parliament
and
any further directions
that
might be provided to
the
Panel
at that
time. We indicated
that
we
had
also instructed
our
staff to continue their preparatorywork relating
to
other documents
the
Committee referred to the Panel, so
that the
Panel wouldbe in a position to make determinations concerning those documents should it ultimately
be
called
on
to do so. We indicated
that the
Panel would make no further determinations beyondthose reflected in its April report until its future role, if any, was clarified.With one modification, we have proceeded as we indicated we would proceed in
our
April
13
letter. We completed by mid-April a report describing the Panel's work
and
methodology. Wealso prepared by mid-April,
in
a form
that
could be tabled,
the
results
of
the
Panel's review
of an
initial set
of
documents, taken from the documents assigned priority by
the
Committee. Themodification is
that
we have also completed
our
review of,
and
determinations concerning,
the
remaining documents to which the Committee assigned priority. We considered it appropriate
that
we
be
in a position to communicate
the
results of
our
review
of
these additional documentsshould we be called upon to do so.
In
making
our
determinations concerning these documents,we continued to apply the methodology
and
approach set out in
our
April report. We did notundertake a review
of
the
Government's claims of Cabinet confidence, since we receivedconfirmation
of
these claims only shortly before Parliament was dissolved. Nor did we complete
our
review of all
of
the
Government's claims
of
solicitor-client privilege, though we were able toreview
and
make determinations concerning most
of
them.Following
the
opening
of
the 1st Session
of
the
41
st Parliament, we were advised by theGovernment that it is unlikely that the MOU will be renewed, but that the Government intends totable the Panel's
April20ll
report and all documents reviewed by the Panel
in
Parliament.
We
were asked to transmit to you for this purpose both the report and the documents that we havereviewed and in respect
of
which we have made determinations.We are accordingly transmitting to you with this letter the following material:
(1) 
the
Panel's April
2011
report, which describes
the
Panel's mandate, its work,
and the
methodology it
has
followed;
L

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