Those of us who have been aware that the principles of open justice in the UK are being threatened in an unprecedented manner have, to date, focused largely on the use of secret evidence in cases related to terrorism — widely ignored by the general public, and by much of the media — and on the use of “super-injunctions,” which recently broke into the mainstream with the Twitter-storm over the Trafigura case.
The use of secret evidence in cases related to terrorism involves prisoners held on control orders (a form of house arrest), or imprisoned on deportation bail, who are assigned special advocates to speak on their behalf in closed sessions of the Special Immigrations Appeal Court (SIAC), but who are then prohibited from speaking to the special advocates about what took place in these closed sessions. This regime is now under threat, after the Law Lords ruled in June that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”
Yesterday, however, a new front in the assault on open justice opened up when Mr. Justice Silber ruled, in the cases of seven former Guantánamo prisoners who are suing the government for damages, related to claims that agents of the intelligence services were involved in unlawful acts and conspiracy, that, for the first time ever in a civil case, MI5, MI6 and the police will be able to withhold evidence from defendants and their lawyers on the basis of national security.
The seven men in question are Bisher al-Rawi, Moazzam Begg, Richard Belmar, Omar Deghayes, Jamil El-Banna, Binyam Mohamed and Martin Mubanga, and they anticipated that their challenge would involve wrangling over the use of Public Interest Immunity certificates, designed to prevent the use of evidence in cases where the government asserts that disclosure would reveal intelligence sources or pose a threat to national security. The use of PII certificates has plagued the disclosure of documents in the long-running case of Binyam Mohamed, the British resident who was subjected to “extraordinary rendition” and torture by the US government, with the complicity of the British intelligence services, but no one anticipated that, in this particular case, a judge would authorize the use of the same system of special advocates used by SIAC.
Mr. Justice Silber acknowledged that the case raised what he called a “stark question of law,” and added that he agreed with the claimants that an appeal “should be expedited.”
It is to be hoped that the Court of Appeals will recognize that Mr. Justice Silber’s ruling must be overturned, but in the meantime Louise Christian, the solicitor for some of the former Guantánamo prisoners, captured the full, horrific implications of the ruling when she explained:
The judge has sanctioned what would be a constitutional outrage, allowing government to rely on secret evidence in the ordinary civil courts. [He has done this] by treating the issue as if it was a purely technical legal matter, not a question of overturning the whole history of the common law and the fundamental principle that both sides must be on an equal footing. By giving the government such an advantage in civil litigation, the court would overthrow the very essence of the rule of law.
She added that she was “confident that the court of appeal will not allow such a massive erosion of the rights of the individual to hold government to account, particularly on the all-important issue of complicity in torture,” and we must all hope that her analysis is correct. As with the case of Binyam Mohamed, it appears that justice is being undermined, with issues of national security being invoked not to protect national security, but to prevent the government and its agents either from embarrassment or, more gravely, from being held accountable for complicity in the systematic torture and abuse at the heart of the Bush administration’s “War on Terror.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (launched in October 2009), and, if you appreciate my work, feel free to make a donation.
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