Briefly, there are a couple of things. Number one is certainly access to all the file that the government has, not just the information that the court is given. Number two, the ability to have that interplay with the person who's subject to the certificate is going to be critical in a way—and their advocate, their own lawyer—that can help to provide information, to provide evidence, so that indeed a special advocate could be able to call, perhaps, witnesses, and provide other documentary evidence that could really challenge and contradict the government's position.
I want to quickly make this point, though, and this goes to pages 301 and 302 of the Arar inquiry report. I just want to quote this, because it goes to the tendency of government--and it was certainly clear under the Arar inquiry--to over-claim national security confidentiality. I'll say this. This is Justice O'Connor:
However, the public hearing part of the Inquiry could have been more comprehensive than it turned out to be, if the Government had not, for over a year, asserted NSC claims over a good deal of information that eventually was made public, either as a result of the Government’s decision to reredact certain documents beginning in June 2005, or through this report. Throughout the in camera hearings that ended in April 2005 and during the first month of the public hearings in May 2005, the Government continued to claim NSC over information that it has since recognized may be disclosed publicly. This “overclaiming” occurred despite the Government’s assurance at the outset of the Inquiry that its initial NSC claims would reflect its “considered” position and would be directed at maximizing public disclosure. The Government’s initial NSC claims were not supposed to be an opening bargaining position.
As a matter of fact it's always going to be the case that the government, in its claims for NSC confidentiality, is probably going to overstate the case. It's going to be conservative. I don't necessarily say there's anything nefarious about that.