Winnipeg Free Press

Winnipeg Free Press (Newspaper) - June 29, 2012, Winnipeg, Manitoba C M Y K PAGE A12 EDITORIALS WINNIPEG FREE PRESS, FRIDAY, JUNE 29, 2012 Freedom of Trade Liberty of Religion Equality of Civil Rights A 12 COMMENT EDITOR: Gerald Flood 697- 7269 gerald. flood@ freepress. mb. ca winnipegfreepress. com EDITORIAL EDITORIAL D EFENCE Minister Peter MacKay took great solace, and told the country as much, in a report by the Military Police Complaints Commission, which on Wednesday cleared eight senior police officers of allegations they didn't fulfil their duties to protect Afghan detainees in 2007 and 2008 from risk of torture. Mr. MacKay is twisting the commission's findings to suit his needs, ignoring the fact it pointed a damning finger instead at military senior commanders. Amnesty International and the British Columbia Civil Liberties Association complained the military police by 2007 and 2008 had reason, and a duty, to investigate military commanders who were directing the transfers, given what was known about abuse, rights violations and torture of prisoners Canada transferred to Afghan authorities. All the violations are contrary to the UN conventions of war, which demand countries protect detainees' rights. The commission's four- year inquiry concluded senior military brass " siloed" the military police, marginalized it and kept it out of the loop on information, allegations and evidence of abuses. Further, senior command of the Canadian Forces ensured MPs had no involvement in post- transfer issues. Until late 2007, Canada could not make site visits to detention facilities and jails run by the Afghans, post- transfer of detainees. Those visits began only after a series of news articles in the Globe and Mail and La Presse exposed the torture claims of detainees. But prior to that, the commission found, there was sufficient warning in the international community, such that senior defence officials ought to have had suspicions. Even after The Globe stories ran, those officials failed to properly investigate. Mr. MacKay should have known enough, or asked the right questions, to have acted earlier on protecting the health and rights of Canada's detainees. Other countries put safeguards, such as site visits, into their agreements. But the transgression of duty didn't stop there. The commission had harsh criticism for the conduct of the government in obstructing its inquiry into the allegations of wrongdoing. The government mounted repeat legal challenges of the MPCC's authority, through obstinate refusal - 21 months in one protracted span - to release documents requested. Its exercise of the Canada Evidence Act's provisions to prevent release of information potentially injurious to national security was approaching hostility. And it restricted the commission's access to critical witnesses. The commission noted its experience is hauntingly similar to the obstructionism that marred an inquiry's investigation into the 1993 beating death of a Somalia teenager by Canadian soldiers. That inquiry triggered the formation of MPCC. But on Wednesday, the government indicated it is unwilling to beef up the authority of the commission to help prevent such obstructionism in the future. It is cool to the idea of giving the MPCC greater access to its records, as was recommended. That will give sanctuary, in the future, should governments again have something to hide. Critics have rightly reflected Canada, then, is likely to see a repeat of the futility of the Somalia and Afghanistan investigations. That shame, Mr. MacKay, lands squarely on your shoulders. M ANITOBA Hydro should not force unionization on contractors bidding for work on the Bipole III transmission line. The line, to be built on the $ 1 billion more expensive western route by edict of the provincial government, is already a sinkhole of cash. The expansion of the Red River Floodway holds important lessons about the risks in making deals with labour councils promising to deliver construction projects on time and on budget. The floodway was done pretty much on time, but it blew its budget. This despite a master agreement, signed in 2005 between the Floodway Authority and the Manitoba Building and Construction Trades Council, which was pursued to ensure the projects costs would be contained, while guaranteeing no work stoppage by workers. Originally set to cost $ 660 million, rising labour costs added $ 135 million to the budget. Rather than overspend, the then Doer administration scaled back, scrapping plans to replace numerous bridges over the floodway. All firms who won contract work had to agree to pay union- set wages and benefits. Workers, in turn, had to pay union service fees for the representation they received from the council. The master agreement was said to have increased costs by an estimated $ 60 million. Manitoba Hydro is insisting on unionization of labour, as it has done in the construction of its generating stations, but it is getting a bit of blowback this time around. Five workers and a contractors association are fighting Hydro's stipulation on the bipole construction project in court, arguing it tramples their right to work without being forced to join a designated trade union. The argument bears a hearing. Construction associations that opposed the floodway's master agreement essentially argued the same case and a mediator convinced the government back down. Rather than force unionization, it imposed uniform work conditions and fees upon the non- unionized. That is not legal precedent, but it is cautionary and instructive to Hydro. A court battle will add costs to Bipole III, a project starting $ 1 billion over cost because the NDP government shifted it from the logical site east of Lake Winnipeg. Manitoba Hydro's capital plans are steeped in controversy already as the utility's revenue projections tumble and costs soar. The floodway experience shows forced unionization can prevent work stoppages, but it naturally inflates costs and gives no guarantee of containing budget overruns. I F the Supreme Court had wanted to make history, it could have: Striking down the individual mandate in the health- care law would have been the most weighty Supreme Court ruling since Franklin Roosevelt's first New Deal was ruled unconstitutional three- quarters of a century ago. By upholding the individual mandate - after honestly acknowledging that making people buy insurance is a tax - the court chose the more cautious course. In the spirit of Justices Oliver Wendell Holmes and Felix Frankfurter, the court adopted the strategy of judicial restraint. The man most responsible for this comes as a surprise: Chief Justice John Roberts, a tried- and- true conservative appointed by George W. Bush to the nearuniversal plaudits of the right. Roberts said in his confirmation hearings he believed in judicial restraint. That has become a clich�, repeated by every would- be judge raising a right hand before a Senate committee. When the chips were down, Roberts did exactly what he had sworn to do under oath. He stayed the court's hand and rejected activism. The court's explanations were sufficiently complex that CNN briefly reported the mandate had been struck down. But the core logic of the holding was a model of analytic clarity. To require people to buy insurance or else pay a penalty is a tax. The Constitution gives Congress the power to tax in order to accomplish its legitimate goals. Calling the mandate what it in fact is makes this result crystal clear. These words sent a direct message to Democratic politicians who refused to call the mandate a tax: You should have told us the truth in the first place. Had the mandate been called a tax from the beginning, all this legal wrangling might never have occurred. It would have been essentially impossible to argue the mandate was unconstitutional if the bill had directly relied upon the taxing power. Of course, politicians are unlikely to take this object lesson seriously. Calling the mandate a tax might have stopped it from passing. Now, the mandate has been upheld. The Democrats' game of bait- and- switch worked - after a fashion. Now the drama of the last several months and the serious worry about the court striking down the president's signature domestic- policy achievement can be conveniently forgotten. What is most shocking about the outcome is who brought it about: Roberts, not Justice Anthony Kennedy, cast the deciding fifth vote to uphold the law. When Roberts was up for confirmation, many liberal insiders to the world of the Supreme Court bar were optimistic he would be a reasonable and evenhanded chief: a conservative, of course, but one who played by the rules. He had little written record to go on, so no detail was too small to escape comment. While still a lawyer, Roberts had occasionally participated alongside liberals in the private, informal moot courts that are part of the preparation for a Supreme Court argument. Once he became chief justice, however, Roberts seemed to many liberals to have reverted to his origins as a clerk for former Chief Justice William Rehnquist and a longtime supporter of the Federalist Society, a powerful conservative legal organization. His decisions have for the most part been consistent with those of Justices Samuel Alito, Antonin Scalia and Clarence Thomas - the conservative bloc. Together these four conservatives have won when Kennedy joined them and lost when he defected to the liberal side. In the health- care case, Kennedy joined the conservative dissent. This is itself worthy of comment, because Kennedy has become a historically important liberal justice through his opinions on gay rights and on habeas corpus rights for detainees at Guantanamo Bay. But Kennedy has remained a conservative on issues of the government's power to regulate and in the end, after all the guessing about his views, he stuck with that position here. One can only speculate on what Kennedy might have done had Roberts not given him the option of joining the conservatives in dissent. Roberts did wave the conservative standard on the question of Congress's power to regulate commerce, squarely stating the regulation of inaction would have been too great an extension of the Commerce Clause power. Yet he balked at stopping Congress from imposing a tax. Conservatives who want to make the health- care plan into a central campaign issue can take some small solace in that the court has called the individual mandate a tax. But there will surely be major shock among those who counted on Roberts to toe the party line, as there is shock among those liberals who had given up on the vision of Roberts as a lawyer's lawyer. What explains this result? One possibility is John Roberts, former law clerk, former high- powered Supreme Court litigator and now chief justice, loves the Supreme Court more than he loves political conservatism. A student of the history of the court - and as a participant in history - Roberts knew the consequences of striking down the individual mandate: He would have been attacked by the president and the news media as the chief of the most activist conservative court since the 1930s. For " the Roberts Court" to become a title of infamy would have been a sadly negative culmination of a highly successful career. Then there is that most old- fashioned of motivations: principle. Frankfurter, who did more than anyone to popularize the idea of judicial restraint, was a liberal New Dealer who became a judicial conservative because he stuck with the principle of restraint even when liberals had five votes. Roberts now enters the pantheon of true judicial conservatives, judges who hold back from activist results no matter how it affects presidential politics. By helping the court avoid making history, Roberts's place in history is assured. Noah Feldman, a Harvard law professor and the author of Scorpions: The Battles and Triumphs of FDRAs Great Supreme Court Justices, is a Bloomberg View columnist. - Bloomberg News Obamacare survives on ' principle' By Noah Feldman Shame falls to MacKay Chief Justice John Roberts Jr. Do not further inflate Bipole III A_ 14_ Jun- 29- 12_ FP_ 01. indd A12 6/ 28/ 12 8: 22: 13 PM ;