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?