Gestapo Courts

Pub­lished in The Huff­ing­ton Post UK, 30 Septem­ber 2012

Pub­lished in The Real News Net­work, 30 Septem­ber 2012

A lot of sound and fury has been expen­ded in the Brit­ish media over the last few months about the Coali­tion government’s pro­posal to enact secret courts via the pro­posed Justice and Secur­ity Bill — purely for ter­ror­ist cases, you under­stand. Which, of course, is OK as we all know ter­ror­ists are by defin­i­tion the Baddies.

Except we need to drill down into the detail of the pro­pos­als, have a look at some his­tory, and think through the future implications.

The concept of secret courts emerged from the offi­cial UK spook sec­tor — MI5 and MI6 have been lob­by­ing hard for such pro­tec­tion over recent years.  Their argu­ment revolves around a num­ber of civil cases, where Brit­ish vic­tims of extraordin­ary rendi­tion and sub­sequent tor­ture have sued the pants off the spies through civil courts and received some recom­pense for their years of suffering.

The most notori­ous case was that of Binyam Mohamed, who was repeatedly tor­tured in a black prison in Morocco, with Brit­ish spies allegedly con­trib­ut­ing to his ques­tion­ing. And we’re not talk­ing about a few stress pos­i­tions, awful as they are. Mohamed was strung up and had his penis repeatedly slashed with a razor.

MI5 and MI6 are aggrieved because they could not defend them­selves in the res­ult­ant civil actions brought against them, and they (and their former polit­ical mas­ter Jack Straw) are par­tic­u­larly wor­ried about future cases around the MI6-organised Libyan rendi­tions exposed last year.  The spies’ argu­ment is that hav­ing to pro­duce evid­ence in their own defence would dam­age that ever-flexible but curi­ously vague concept of “national security”.

Well, they would say that, wouldn’t they?

The spooks have tra­di­tion­ally used the “national secur­ity” argu­ment as the ulti­mate get-out-of-jail-free card.  It has never been leg­ally defined, but it is unfail­ingly effect­ive with judges and politicians.

We saw sim­ilar argu­ments dur­ing the post-9/11 secur­ity flap, when many ter­ror­ist sus­pects were scooped up and interned in high secur­ity Brit­ish pris­ons such as Bel­marsh on the say-so of face­less intel­li­gence officers. No evid­ence needed to be adduced, nor could it be chal­lenged. The sub­sequent con­trol order sys­tem was equally Kafkaesque.

That’s not to say that cer­tain interned indi­vidu­als might not have been an act­ive threat to the UK.  How­ever, in the “good” old days (god, I sound ancient), sus­pects would have had evid­ence gathered against them, been tried by a jury, con­victed and imprisoned. The sys­tem was never per­fect and evid­ence could be egre­giously with­held, but at least appeals were pos­sible, most not­ably in the case of the Birm­ing­ham Six.

Since 9/11 even breath­ing the word “ter­ror­ist” has meant that all these his­toric com­mon law prin­ciples seem to have been jet­tisoned.  Even before the pro­posed enshrine­ment of “secret courts” in the new Bill, they are already being used in the UK — the Spe­cial Immig­ra­tion Appeal Com­mis­sion (SIAC) tribunals hear secret evid­ence and the defendant’s chosen law­yer is not allowed to attend. Instead a spe­cial, government-approved advoc­ate is appoin­ted to “rep­res­ent the interests” of the defend­ant who is not allowed to know what his accusers have to say. And there was no appeal.

But all this is so unne­ces­sary.  The powers are already in place to be used (and abused) to shroud our notion­ally open court pro­cess in secrecy.  Judges can exclude the press and the pub­lic from court rooms by declar­ing the ses­sion in cam­era for all or part of the pro­ceed­ings.  Plus, in national secur­ity cases, gov­ern­ment min­is­ters can also issue Pub­lic Interest Immunity Cer­ti­fic­ates (PIIs) that not only bar the press from report­ing the pro­ceed­ings, but can also ban them from report­ing they are gagged — the gov­ern­mental super-injunction.

So the powers already exist to pro­tect “national secur­ity”.  No, the real point of the new secret courts is to ensure that the defend­ant and, par­tic­u­larly in my view, their chosen law­yers can­not hear the alleg­a­tions if based on intel­li­gence of any kind. Yet even the spies them­selves agree that the only type of intel­li­gence that really needs to be kept secret involves ongo­ing oper­a­tions, agent names, and sens­it­ive oper­a­tional techniques.

 And as for the right to be tried by a jury of your peers — for­get it.  Of course jur­ies will have no place in such secret courts.  The only time we have seen such dra­conian judi­cial meas­ures in the UK out­side a time of offi­cial war was dur­ing the Troubles in North­ern Ire­land — the infam­ous Dip­lock Courts — begin­ning in the 1970s and which incred­ibly were still in use this year.

I am not an apo­lo­gist of ter­ror­ism although I can under­stand the social injustice that can lead to it.  How­ever, I’m also very aware that the threat can be arti­fi­cially ramped up and manip­u­lated to achieve pre­con­ceived polit­ical goals.

I would sug­gest that the concept of secret courts will prove fatally dan­ger­ous to our demo­cracy.  It may start with the concept of get­ting the Big Bad Ter­ror­ist, but in more polit­ic­ally unstable or strin­gent eco­nomic times this concept is wide open to mis­sion creep.

We are already see­ing a slide towards expand­ing the defin­i­tion of “ter­ror­ist” to include “domestic extrem­ists”, act­iv­ists, single issue cam­paign­ers et al, as I have writ­ten before. And just recently inform­a­tion was leaked about a new public-private EU ini­ti­at­ive, Clean IT, that pro­poses ever more invas­ive and dra­conian poli­cing powers to hunt down “ter­ror­ists” on the inter­net. This pro­posal fails to define ter­ror­ism, but does provide for endemic elec­tronic sur­veil­lance of the EU. Pure cor­por­at­ism.

Allow­ing secret courts to try people on the say-so of a shad­owy, unac­count­able and bur­geon­ing spy com­munity lands us straight back in the pages of his­tory: La Ter­reur of revolu­tion­ary France, the creepy sur­veil­lance of the Stasi, or the dis­ap­pear­ances and tor­ture of the Gestapo.

Have we learned nothing?

Interview for the Release newsletter, “TalkingDrugs”

An inter­view I did on behalf of LEAP this week for the news­let­ter of the UK cam­paign, Release.

Release, run by the indefatig­able Niamh East­wood, does excel­lent work provid­ing legal advice about drug issues, and cam­paign­ing for fairer and more com­pas­sion­ate drug laws.

The inter­view appeared in the campaign’s news­let­ter, “Talk­ing­Drugs”.

Here’s the link, and here’s the text:

Q1 What led you into think­ing that cur­rent drug policies on illi­cit drugs were failing?

My jour­ney began when I was work­ing as an intel­li­gence officer for MI5 in the 1990s.  One of my roles was invest­ig­at­ing ter­ror­ist logist­ics and work­ing closely with UK Cus­toms.  I learned then that try­ing to stop the flow of illi­cit mater­ial into the UK (whether drugs, weapons, or people) is like look­ing for a needle in the pro­ver­bial hay­stack.  Plus there is a huge over­lap between the fund­ing of organ­ised crime and ter­ror­ist groups.

Over the last dec­ade I have become a writer, com­ment­ator and pub­lic speaker on a vari­ety of inter-connected issues around intel­li­gence, the war on ter­ror, whis­tleblowers, poli­cing, and civil liber­ties.  To me, the war on drugs meshes very closely with all these top­ics.  Three years ago I was approached by LEAP to become a speaker, and then in March this year I became a mem­ber of the inter­na­tional board and also the Dir­ector of LEAP Europe in order to con­sol­id­ate the organisation’s work here.

Q2 Do you think that there are bar­ri­ers to police officers being hon­est about the effect­ive­ness of their actions to com­bat the trade in illi­cit drugs and is the greater dis­quiet amongst those involved in law enforce­ment about cur­rent policies than is pop­ularly perceived ?

Yes, abso­lutely, and it’s not just amongst the police but also the wider law enforce­ment community.

LEAP sup­port­ers, approach­ing 100,000 in over 90 coun­tries around the world, include judges, law­yers, prison gov­ernors, cus­toms and intel­li­gence officers, and former drug czars.  Within all these pro­fes­sions there is a tacit under­stand­ing that you toe the con­ven­tional line.  In my exper­i­ence, most people go into this type of work hop­ing not only to have an inter­est­ing job, but also to do some good and make a dif­fer­ence.  Many then see the social fall-out, or that friends, fam­ily or com­munity are affected by the drug wars, and many serving offi­cials do ques­tion what it is all about and what it is really achieving.

How­ever, they are there to do a job, which is uphold­ing and apply­ing the law.  The cul­tural pres­sure within such groups can make it extremely dif­fi­cult on many levels for them to speak out.

Any change to the inter­na­tional and national drug laws will have to come from the politi­cians within the UN and nation­ally.  LEAP increas­ingly con­trib­utes to the polit­ical debate and is build­ing a groundswell of sup­port inter­na­tion­ally.   Most people today will know someone who has at least tried a cur­rently illegal drug.  They also instinct­ively know this is mere social exper­i­ment­a­tion, relax­a­tion or, at worst, a health prob­lem.  And pen­al­isa­tion, impris­on­ment and a crim­inal record exacer­bates rather than helps the situation.

Q3 Does the poli­cing of drug pos­ses­sion impact the effect­ive­ness of poli­cing gen­er­ally and what bene­fits do you think could stem from ceas­ing to use law enforce­ment to attempt to dis­cour­age drug use?

There are mul­tiple strands to this issue: the diver­sion of police resources, the addi­tional crime caused by pro­hib­i­tion that is not dealt with suc­cess­fully, the diver­sion of resources from harm reduc­tion pro­grammes, the crim­in­al­isa­tion of what are essen­tially health issues, and the dis­rep­ute that res­ults for law enforcement.

The poli­cing of drug pos­ses­sion takes away vast resources from invest­ig­at­ing other crimes such as burg­lary, rape and murder.  Yet it is largely point­less – those with a drug depend­ency need health inter­ven­tions, and there will always be replace­ments for any low-level deal­ers who are arres­ted and imprisoned.  If you arrest and con­vict a rap­ist, he will not be on the streets com­mit­ting more rapes; but if you catch a drug dealer, you just cre­ate a job vacancy for which many will com­pete in ever more viol­ent ways for a slice of an incred­ibly luc­rat­ive market.

The UK anti-prohibition advocacy group, Trans­form, estim­ates that even if just can­nabis were leg­al­ised in the UK, an addi­tional $1.6 bil­lion would flow into the Brit­ish eco­nomy every year.  While tax raised on a con­trolled and reg­u­lated can­nabis trade is pre­dicted to provide the bulk of this ($1.2 bil­lion), $170 mil­lion would be saved from law enforce­ment, $155 mil­lion from the justice sys­tem, and $135 mil­lion from the prison system.

In the cur­rent eco­nomic situ­ation, can the UK afford not to con­sider altern­at­ives to the cur­rent drug war?

Also, as we have seen since the decrim­in­al­is­tion laws in Por­tugal since 2001 and Switzer­land since 1994, the “peace dividend” by end­ing the war on drugs would not only see a drop in prop­erty crimes (about 50% of which are com­mit­ted to fund drug depend­en­cies), it could also be used to fin­ance and extend harm reduc­tion pro­grammes.  As we have seen in the case of tobacco across the West, we do not need to ban a sub­stance to reduce its use; edu­ca­tion and treat­ment are far more effective.

Finally, illegal drugs are avail­able to any­one who wants to buy them on the streets of the UK.  The increas­ing mil­it­ar­isa­tion of the police to fight the war on drugs, the break­down of civil liber­ties for the same reason (mir­ror­ing the war on ter­ror), and the wide­spread flag­rant flout­ing of the drug laws by large num­bers of the pop­u­la­tion, thereby “mak­ing an ass of the law”, has led to a break­down of trust and respect between the police and the policed. One of LEAP’s aims is to rebuild this trust, this social contract.

Q4 The impact on the safety of law enforce­ment per­son­nel of the ‘war on drugs’ should be an issue for other mem­ber­ship organ­isa­tions rep­res­ent­ing the sec­tor, will you be reach­ing out to them to encour­age cam­paign­ing on the issue?

Safety is cer­tainly an issue, although we have been more for­tu­nate in Europe than our col­leagues in the USA, where the more pre­val­ent gun cul­ture leads to many more law enforce­ment deaths.  That said, gang viol­ence is on the rise across Europe where organ­ised crime gangs fight increas­ingly viol­ent turf battles.

Mex­ico has been one of the worst hit coun­tries in the world.  Since the ramp­ing up of the war on drugs  almost six years ago, over 62,000 men women and chil­dren have been tor­tured and murdered in that coun­try, and many of them had no involve­ment what­so­ever in the drugs trade.  In fact, LEAP USA has just suc­cess­fully par­ti­cip­ated in the Mex­ican Cara­van for Peace, a group of act­iv­ists and fam­il­ies high­light­ing the tragedy, that toured across the USA for a month to raise aware­ness and fin­ished with a rally in Wash­ing­ton last week.

The increas­ing viol­ence of the drugs trade and the mil­it­ar­isa­tion of the response should be of con­cern to all law enfor­cers, mem­ber­ship organ­isa­tions and allied groups work­ing in the drugs sec­tor.  We need to think urgently about how to avoid a sim­ilar spiral of viol­ence in Europe.   LEAP is happy to reach out to such organ­isa­tions to develop a more humane solution.

Q5 How would you like to see LEAP in Europe develop and will you be look­ing to lobby European policy makers in Brussels?

There are already LEAP speak­ers across most European coun­tries.  We in LEAP see the organisation’s primary goal as edu­ca­tional.  We shall be work­ing to build up speak­ing engage­ments for a wide vari­ety of groups and audi­ences, includ­ing the polit­ical sec­tor, as well as strength­en­ing our media expos­ure.  We recog­nise the valu­able work Release and other NGOs and advocacy groups are already doing across Europe, and hope that you will see that we offer a unique voice and pool of expert­ise that can be used to strengthen your work.

It is won­der­ful that so many organ­isa­tions and indeed gov­ern­ments around the world (par­tic­u­larly in Europe and Latin Amer­ica) are now focus­ing on explor­ing altern­at­ives such as decrim­in­al­is­tion and harm reduc­tion pro­grammes.  Based on our pro­fes­sional exper­i­ence, LEAP argues that we need, at very least, to con­sider the next logical step in the chain: con­trolled reg­u­la­tion of the drug mar­ket as we cur­rently do with alco­hol and tobacco.

Decrim­in­al­isa­tion may help to reduce the harm for the drug users, but leaves the drug trade in the hands of increas­ingly viol­ent global organ­ised crime net­works.  Only by remov­ing the profit motive from this illi­cit trade can we end the involve­ment of the crim­inal ele­ment and all the attend­ant viol­ence, and work to make the world safer for all.