Closed Trials and Open Wounds

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.

Nicholas Mulder is a graduate student in the history of economic thought and political economy at King's College, Cambridge.