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?