There is a great op-ed piece in the Ottawa Citizen co-written by Amir Attaran, a professor in the faculties of law and medicine at the University of Ottawa and Gar Pardy, a retired Canadian diplomat. These two men come to the aid of Richard Colvin as he is being smeared by our government.
Colvin is just doing his job
Contrary to the whistle-blower hype, the embattled diplomat is merely carrying out -- with honour -- his duty to the Crown and people of Canada
By Amir Attaran and Gar Pardy, Citizen Special
November 28, 2009
Poor Richard Colvin. Swiftboated by Defence Minister Peter MacKay as "not credible" and a mouthpiece of the Taliban, now the Attorney General of Canada is on his back, threatening prosecution if he dares to answer a parliamentary committee's request to see documents he wrote about detainee abuse and torture in Afghanistan.
The character assassination and bullying are nonsense of course -- the same government that slandered Colvin also promoted him to an intelligence job with top-secret clearance in Canada's Washington embassy -- but if one can set aside the revulsion, what does the Colvin affair teach about the duties of public servants to tell the truth? As a law professor and retired diplomat (who once held Colvin's job in Washington), there are four lessons we think every civil servant in Ottawa should know.
One lesson is that the conventional wisdom -- that Colvin is a whistleblower, who is now being punished -- is an attractive Hollywood story, but a distant relative of the truth. Colvin was sent to Afghanistan with a job to do, which was to gather observations on political issues related to Canada's mission. His notes are the focus of everyone's interest not because he did his job poorly, but because he did it well. He also did well when, sensing imminent government interference because he was summoned as a witness before the Military Police Complaints Commission, he invoked a Treasury Board policy that entitles civil servants to an independent lawyer on request.
Nor did he transgress his job by accepting Parliament's invitation to testify last week, even if it infuriated the Harper government and sycophantic civil servants above him. For like all civil servants, Colvin owes a duty of loyalty to the Government of Canada -- including Parliament.
That explains why, for all their loathing of Colvin, Peter MacKay and other cabinet ministers mutter he won't be fired -- because he can't be. Since they can't fire, they bully; it's all they have.
The second lesson is that many, perhaps most, civil servants do not truly understand the duty of loyalty upon them. Ignorance suits the Harper government; it relishes control, and the uninformed err safely on the side of excess loyalty. Too much loyalty, however, means too little innovation or constructive criticism at best, or exploitation and job dissatisfaction at worst. It is better, for Canada and for civil servants themselves, to know truly where the limits of loyalty lie.
The Supreme Court of Canada wrote the final word on the duty of loyalty in 1985:
"The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability."
Note what the Supreme Court's analysis does not require. Civil servants owe loyalty to the government of Canada -- the Crown, if you will -- but not the governing party. In public, no civil servant need agree with party policy. Civil servants can dissent from Government of Canada policy in public, within limits, such as when the government is "engaged in illegal acts, or if its policies jeopardized the life, health or safety of ... others."
Seen that way -- the legally correct way, because the Supreme Court says so -- Colvin did not violate his duty of loyalty to the government of Canada. Complicity in torture is highly illegal -- a war crime. Government policies or mistakes that lead to torture are ruinous to life, health or safety. Colvin was not just legally correct, but supremely ethical, to disclose about torture and the detainee transfer policy, no matter what political aftershocks. That he did so with dignity in Parliament, after notifying his superiors, gives him additional protections under the Public Servants Disclosure Protection Act.
The third lesson is that dissent has to be done carefully. Going directly to the media with a counterpunch or leaked document is not as safe as it should be. That is not because journalists are dishonourable -- only the rarest scoundrels don't protect sources -- but because the lower courts seem resistant to the Supreme Court's direction when disclosures are journalistic. The lower courts are probably wrong, but their error is reality.
The best way for would-be disclosers is to see a lawyer. This is because confidential information and instructions given to a lawyer are protected by the iron rule of solicitor-client privilege. The information normally cannot be forcibly discovered, not even by police, and is inadmissible in court. Whether the information is unprotected or top secret is immaterial, and the privilege exists to foster free, frank discussion with the lawyer.
Thus Colvin disclosed to his lawyer, and his lawyer cleverly arranged disclosing to the world. The lawyer proved her worth by picking a path through hazards both real and imagined -- for a favourite government tactic is to intimidate civil servants into secrecy without actually having a legal basis. Section 38 of the Canada Evidence Act, which the Attorney General overuses to gag persons who possess national security or international relations information, is one such questionable threat, because the law does not provide any criminal penalty for ignoring section 38 secrecy per se. The government also exaggerates the Security of Information Act: much of that law was struck down as unconstitutional by the courts three years ago.
In short, the tigers the government uses to enforce secrecy often are toothless, or can be safely defanged by a lawyer, particularly if he or she is an expert in public law.
Technology also makes safe disclosure possible without a lawyer. Wikileaks (wikileaks.org) is an ultra-secure, totally anonymous website that accepts documents from around the world. No source has ever been exposed through Wikileaks, though it has been used over a million times. Think of it as the web's brown envelope, which not even China's notorious Internet spies have cracked.
The final lesson is of course one of ethics. When Peter MacKay taunted and laughed at reporters questioning how retired general Rick Hillier saw secret documents ahead of testifying in Parliament -- the very same secret documents that the government has threatened Colvin not to let Parliament see -- he demonstrated reprehensible ethics (search for it at cbc.ca/video).
Making ethical disclosure means never personally sinking to his level; it means lifting the full weight of Canada's democracy above it. The Canadians who lost their lives in Afghanistan, and the many more maimed, sacrificed in defence of ideals -- including transparency and parliamentary democracy. Civil servants let them down when assisting a government that, confronted with its responsibilities under Canadian and international law such as to avoid torture, ducks, bobs, weaves and shoots messengers in its tortuous path.
They even let down their fellow civil servants, like Colvin. Of the many bureaucrats he copied on his reports, not one has disclosed those documents, so Canadians might independently decide whether Colvin or the government is the more truthful. They have left him undefended -- even when as just explained, disclosure can be lawful, safe and ethical. It is a course, frankly, chosen of fear and ignorance.
We recommend this course: Civil servants and diplomats are privileged to be some of the best educated Canadians, and have an ethical responsibility to help other Canadians understand government's complexity. Techniques exist to disclose safely, without becoming an unemployed martyr. Our government's involvement in Afghanistan is tremendously complex, and the civic interest depends on Canadians understanding it, even -- perhaps especially -- when the truth is hard, such as torture. The same is true for other complex subjects ringed in secrecy when the Supreme Court's criteria come into play: the H1N1 flu, for example.
If civil servants comport themselves with such honour in Canada, as is more often done in America (think Daniel Ellsberg) or Britain (think Katharine Gun), Canada will be a stronger country. Never doubt it.
(Amir Attaran is professor in the faculties of law and medicine at the University of Ottawa. Gar Pardy is a retired Canadian diplomat.)