Closed trials and open wounds

Nicholas Mulder
March 12, 2013

The political repercussions of the proposed Justice and Security Bill rocked the Liberal Democrats’ spring conference in Brighton this weekend. Civil rights campaigner Jo Shaw resigned  after renouncing her support for Nick Clegg, declaring she could no  longer “uphold the values of fairness, freedom and openness inside the  Liberal Democrats under its current leadership—a leadership for whom the  privilege of power has meant the betrayal of liberal values.” This  followed the resignation on Saturday of prominent human rights lawyer Dinah Rose QC, whose longstanding opposition  to the practice of secret hearings stems from years of first-hand  experience in civil rights cases pertaining to national security and  terrorism.

Over the last few months the Conservative-Liberal Democrat coalition  has attempted to introduce secret trials in Britain. Initially secret  court proceedings only took place in special cases handled by the  Special Immigration Appeals Commission (SIAC). In these immigration  cases the authorities used so-called ‘closed material procedures’  (CMPs), in which evidence deemed ‘sensitive’ to national security was  presented to the ruling judges in secret, because doing so in public  would disclose information that the British government did not want to  share. CMPs were used by SIAC to decide whether or not to deport  immigrants who were suspected of ties to terrorist organisations or  posed a risk to national security. As early as 1997, in the case Chahal v. UK, the European Court of Human Rights ruled  that this practice contravened its Convention—specifically article 6 on  the right to a free trial—but that didn’t bother the British government  very much.

In July 2011, the British Supreme Court ruled  that the use of CMPs was illegal in the case of Bisher al-Rawi, an  Iraqi citizen and UK resident who was arrested during a business trip in  the Gambia in 2002 and transferred to Guantanamo Bay, where he was held  for four and a half years without trial and subjected to torture and  mistreatment. Upon his release al-Rawi and four fellow detainees filed a  lawsuit against the British government for involvement in their  extraordinary rendition. The British intelligence services requested  permission to present evidence supporting their actions in a CMP, but  this appeal was denied by the Supreme Court, which insisted that “the  open justice principle is not a mere procedural rule. It is a  fundamental principle of justice”. It seemed as though secret hearings  and undisclosed evidence were illegal, and would remain so.

But the government seems to have set its mind on making secret trials  a permanent feature of the British legal system. The proposed Justice  and Security Bill would allow CMPs not only in criminal but also in  civil lawsuits. In response to secret hearings being declared illegal in  immigration cases, the coalition parties have proposed a law that  enables the majority of lawsuits to have secret hearings whenever the  government invokes considerations of national security.

One reason for the bill is financial: so far, the unwillingness of  MI5 and MI6 to share the reasons for their role in extraordinary  rendition and torture has forced them to accept out-of-court settlements  with victims, which the government have alleged has cost them over £30  million (although no independent confirmation  of this figure can be given). Another reason the proponents of the  Justice and Security Bill give is that they want to protect the  intelligence services from baseless accusations. If the secret service  can’t defend itself without giving up vital intelligence, then people  might be tempted to blackmail the government and falsely accuse it in  the hope of getting money – money that belongs to honest taxpayers,  these proponents  are quick to add. The implicit suggestion is that lying opportunists  will indirectly steal from ordinary citizens because critics of the bill  are too principled in their attachment to open trials. Justice  Secretary Ken Clarke has even suggested that compensation for the  victims of misguided anti-terrorism policies amounts to taxpayers funding terrorism.

These arguments are absurd. The idea that any private individual  could force MI6 into revealing all its operations to the public assumes  that they know the nature and extent of the government’s covert  activities. But at the moment government intelligence operations are  already conducted under a thick veil of secrecy. Anyone who wanted to  blackmail the government into paying them extortionate amounts of money  would be stabbing in the dark. Anyone, that is, except those who have  actually experienced the power of British intelligence services  first-hand, and have been victims of its collusion with other countries’  torturers and secret prisons. And so far it has been these people, not  malevolent con artists, who have had their right to an open and fair  trial denied. In almost all of the cases in which CMPs have been  invoked, the government stands accused of assisting the arrest,  rendition, detention without trial, and in some cases, the torture of  both British citizens and foreign nationals. Secret trials, then, do  protect the government. But they protect it in the first place by  allowing misconduct to be covered up.

The figure of the opportunist who exploits openness is a straw man.  Such people wouldn’t stand a chance of making convincing accusations  unless they were actual victims. Thus far we have no reason to believe  that telling the truth about intelligence operations has cost a single  British life. How many successful terrorist attacks, or even threats to  national security, have been based on information leaked through court  trials? American civilian criminal courts have convicted over 500  individuals on terrorism charges in open trials  since 9/11; no planned or attempted attacks have been found to have  benefited from the evidence provided by the prosecution. There is no  evidence here to support CMPs, but only a convenient assumption, and one  which has proven unfounded.

In fact, the best evidence against the  openness-facilitates-extortion argument came last week. The Libyan Abdel  Hakim Belhaj, who was arrested together with his wife by the CIA in  Bangkok in 2004, then extradited to Tripoli and tortured there by  Gaddafi’s regime with the assistance and full knowledge of MI6, made a  remarkable declaration: he would accept a symbolic indemnification of £3  and an official apology from the British government. Belhaj did not  demand compensation, but merely recognition. In his letter to David Cameron  he said he desired “a public judgment, recognising the wrongs we have  suffered”. Openness does not facilitate extortion; it facilitates  justice and reconciliation. Apparently Libyan Islamists realise this,  though not the Justice Secretary of the United Kingdom.

If extortion by opportunists is both incoherent and vastly  improbable, then much of the case for CMPs seems to founder. In spite of  this, the Justice and Security Bill is not driven by political  expediency, but by a closeted ideological agenda. This is why the  British political establishment still seems to think that it is a  practical necessity. As I wrote  here last month, the politics of national security rest on this kind of  false pragmatism, invoking vague concepts and projecting imaginary  fears rather than real solutions. Britain’s most senior judge has  rightly warned that secret hearings will undermine democracy and justice, not save it.

It is especially telling that the political pressure to  institutionalise secret hearings is mounting now that the War on Terror  is so evidently turning out to be a dead end, a crusade against an  abstract foe, a campaign whose collateral damage outweighs the  pre-existing threats it targeted, and a strategy that has alienated and  antagonised more people around the world than it has aided or reassured.  The United Nations rapporteur on human rights and anti-terrorism has called  on the American and British governments to account for their mistakes.  But the reasoning of the Justice and Security Bill’s advocates still  rests on the discredited illusion of an invisible enemy, ready to strike  when we let our guard down. David Cameron might ask himself what he can  learn from Belhaj’s request, which demands nothing more than an  apology, an admission that a wrong was inflicted on him. If Britain  seeks to promote justice, it should do so by acceding to requests like  these, not by reverting to secret court hearings that break with the  tradition of constitutional accountability and leave the plaintiffs  unsatisfied.

The mentality of distrust and secrecy was instrumental in committing  so many of the blunders that blemish Western anti-terrorism efforts over  the last decade: cases of mistaken identity or plain innocence  resulting in lives ruined, families torn apart, rights denied and  complaints dismissed. The cruel irony of the current situation is that  this very mindset, responsible for so many major errors of judgment and  violations of human and civil rights, is now driving legislation that  would effectively shield the government officials and agencies  responsible for those errors. More than a decade on, we still haven’t  learned from our mistakes


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Nicholas Mulder