Here's an idea

Sujit Choudhry, the esteemed University of Toronto professor of constitutional law, sends along the following. It likely would not wholly satisfy those who are intent on asserting the supremacy of Parliament, but there is plenty here worth considering, perhaps as something that might be part of a broader solution. SIRC is the Security Intelligence Review Committee, which you can read about here.

Anyway, without further ado, Mr. Choudhry’s idea.

The House of Commons should appoint a 5 member ad hoc panel of former members of SIRC, all of whom have the requisite expertise and security clearance to review the documents.  The list of 5 should be agreed to by all the political parties, and would be presented to the House of Commons as a slate, to be voted up or down on a motion.  The five would among them select a chair.  Preferably, the panel should be drawn from across the political spectrum.  A perusal of the list of former SIRC members suggests this should not be a problem.

The task of the ad hoc panel would be to review all the relevant documents related to the detainee affair.  The panel would screen the documents on the basis of national security, adapting the criteria set out in s. 38.06 of the Canada Evidence Act.

In short, the panel would (a) determine with respect to each document if disclosure would be injurious to international relations, national defence or national security – if disclosure did not raise this concern, then the document must be disclosed; (b) determine in cases where disclosure would raise these concerns, if those concerns are outweighed by the public interest in disclosure; (c) if the public interest in disclosure outweighs these concerns, release the document, or a part or summary of it, in order to minimize the injury to international relations or national defence or national security arising from disclosure.

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