Secret Justice - an oxymoron

[Jan Klimkowski]

The redacted and unredacted documents can be seen here.

Secret justice.

An oxymoron.

Richard Stein, of Leigh Day & Co, who represented Serdar Mohammed, said: "There was nothing remotely sensitive for national security about this. It was just politically embarrassing."

Torture claim redactions 'show dangers of secret courts'

Documents show how politically embarrassing evidence can be concealed under veil of protecting national security, critics claim


Owen Bowcott, legal affairs correspondent
guardian.co.uk, Thursday 10 January 2013 14.29 GMT
Jump to comments (127)

Ken Clarke said: 'Clearly, any suggestion that these closed hearings would make anything secret that is in the public domain now is emphatically wrong.' Photograph: Peter Macdiarmid/Getty Images

Two versions of a highly sensitive military witness statement initially substantially withheld, then later revealed illustrate the dangers of government plans to expand secret courts, according to campaigners.

The partially suppressed version cuts out crucial details about torture allegedly being inflicted on an Afghan detainee who had been arrested by British forces. The man claimed Afghan forces he was handed over to had beaten him on his feet and legs with metal rods until he was unable to stand.

Lawyers who fought the case claim the two versions demonstrate how politically embarrassing evidence can be concealed under the veil of protecting national security. The documents variations on a witness statement from a senior Ministry of Defence official labelled "secret UK eyes only" have been passed to the Guardian.

The high court's treatment of the evidence, it is claimed, also challenges repeated assurances by the Cabinet Office minister without portfolio, Ken Clarke, that the justice and security bill will not result in anything that is currently disclosed being withheld in future. The Cabinet Office disputes the significance of the disparities between the two versions of the documents, pointing out that security sensitivities change over time.

The redactions were made under a legal device that was subsequently outlawed by the supreme court. It is in response to this ban that the government has brought in fresh "secret court" legislation. The controversial bill is about to enter its committee stage in the House of Commons after peers defeated the government in the upper house and imposed additional safeguards on the legislation. Clarke has yet to decide whether to accept those amendments.

The two documents have emerged from a highly unusual sequence of litigation triggered by a case brought by the peace activist Maya Evans in 2010. She was concerned about the transfer of UK-captured detainees to Afghan authorities.

She alleged there was a real risk of detainees being tortured if they were handed over to Afghan security officers. She failed to persuade the court despite the fact that the judge saw the full text of the MoD statement which reported the suspect's claim of being "beaten several times with steel rods to the areas of his legs and feet" while in Afghan detention, which reportedly left him unable to stand. British forces took photographs of the man's injuries but the pictures have not been released.

The court did, however, impose extra monitoring and accepted that it would not be safe to transfer Taliban suspects to the Afghan national directorate of security (NDS) in the capital, Kabul.

Shortly afterwards another detainee, Serdar Mohammed, who had been captured by British soldiers, was transferred to an NDS prison in Lashkar Gah and then moved on to the Afghan security forces headquarters in Kabul.

Mohammed also reported being tortured, having his testicles twisted until they bled. His transfer initiated a second round of legal challenges during which virtually the full text of the MoD official's witness statement was released.

Comparisons between the two versions shows that seven crucial paragraphs were withheld from the original open court case. The 2010 case was one of the few examples of a secret hearing, known as a closed material procedure (CMP), being used in the civil courts.

CMP hearings were subsequently outlawed by a supreme court judgment in another case, that known as the Al Rawi case. It was that effective ban which the government says has forced it to introduce the justice and security bill, which will expand the use of CMPs into civil courts.

CMPs, also known as secret courts, enable the authorities to introduce sensitive information in a trial that can only be seen by the judge and security-cleared "special advocates" who represent the interest of an individual claimant.

The special advocate may not, however, give his or her client precise details of the evidence and can only provide a "gist" or loose summary. The claimant may not therefore be aware of all the allegations being made. Critics say this results in parties to a legal dispute no longer being on an equal footing, tilting the advantage in the government's favour.

In the MoD statements, information withheld from open court proceedings included the fact that the head of the Afghan NDS was reluctant to allow visits by British forces to his detention facilities because they might "disrupt the carefully controlled environment" developed to question "insurgent suspects".

Those opposed to the transfers were also not informed about the alleged beatings with steel rods, claims of further abuse following the first visit by a Royal Military police staff sergeant and other British officials or the fact that UK soldiers feared "the inclusion of a medical doctor in the next visit party [might] alert the NDS to the possibility that allegations had been made".

Richard Stein, of Leigh Day & Co, who represented Serdar Mohammed, said: "There was nothing remotely sensitive for national security about this. It was just politically embarrassing.

"The full text of the document shows that this detainee complained about torture and that there were strong physical signs of torture. Under closed material procedures there's no requirement to balance the interests of national security with other human rights concerns.

"Under a CMP, no one would have known that this man had been tortured. It also shows that the public and litigants will find out less than previously when cases were held using public interest immunity (PII) certificates."

Jo Shaw, a Liberal Democrat parliamentary candidate and former lawyer who has led opposition to secret courts in the party, highlighted the significance of the document. "The two statements shockingly demonstrate exactly what many … have been worried about: coverups made possible by secret courts in the illiberal, unnecessary and unfair justice and security bill," she said.

"What was being kept from the public eye in this case was not information which would threaten the life of security services personnel, or the security of the UK. It was information which was embarrassing to the security services and to the government, because it showed the knowledge of UK officers about torture in Afghanistan gaols run by our allies.

"Covering up difficult or embarrassing facts about complicity in torture or rendition helps no one. To ensure there is no UK involvement with such wrongdoing in future we need open justice, not secret courts. It is equally appalling that Ken Clarke has refused to rule out using secret courts in claims brought by injured service personnel, or in claims for habeas corpus."

In an article for the Guardian last year, Ken Clarke wrote: "Clearly, any suggestion that these closed hearings would make anything secret that is in the public domain now is emphatically wrong."

A Cabinet Office spokesperson said: "These lawyers have utterly failed to take into account the fact that the sensitivity of material can change over time. The court ruled that there were legitimate public interest reasons not to disclose this material in 2010.

"By 2012 the circumstances had changed meaning the material could be safely disclosed. Far from revealing any sort of coverup this information underlines the government's commitment to disclose as much information as is safely possible in all these cases."

[Jan Klimkowski]

Secret Justice is being expanded in the UK:

Dinah Rose quits Liberal Democrats in protest at secret courts

Nick Clegg accused by human rights barrister of betrayal of principles over support for justice and security bill

Mark Townsend and Daniel Boffey
The Observer, Saturday 9 March 2013 20.30 GMT
Jump to comments (182)

Dinah Rose QC
Dinah Rose: 'I just cannot see what purpose is served by the party, if it is prepared to support the bill. I have therefore decided, with great regret, to resign my party membership'

One of the country's leading human rights barristers is to resign her membership of the Liberal Democrats to express her outrage over the coalition government's backing for secret courts.

Dinah Rose QC successfully represented the British-resident Guantánamo detainee, Binyam Mohamed, in his battle to establish that British intelligence services were complicit in his "cruel and inhuman" treatment by the United States.

Citing her experience of secret hearings, she described Nick Clegg's support for the government's justice and security bill as a betrayal of the party's guiding principles.

Rose said her decision to resign had not been "taken lightly or without great sadness". She told the Observer: "The very first sentence of the Liberal Democrats' constitution states that they exist to build a 'fair, free, and open society'. The vote in favour of secret courts is an attack on the heart and soul of the party."

In her resignation statement, Rose said: "The right to a fair hearing, and the right to open justice, are among the most fundamental of all our basic constitutional rights. I just cannot see what purpose is served by the party, if it is prepared to support the bill. I have therefore decided, with great regret, to resign my party membership."

The Lib Dem leadership's decision to back plans to extend the use of secret hearings in civil courts, where matters of national security are at stake, has divided the party. In last week's Commons vote on the security and justice bill, in which Lib Dem leader and deputy prime minister Clegg ordered his MPs to back the controversial measures, party president Tim Farron and deputy leader Simon Hughes were among those who voted in favour of Labour amendments, which included the introduction of a public interest test for secret courts.

Ministers eventually defeated two attempts by Labour and coalition rebels to introduce extra safeguards into plans to allow civil courts to sit in secret, a move critics warn threatens the rule of law and could allow the security services to cover up involvement in abuse and torture.

Fury over the controversial measures will take centre stage at the Lib Dems' spring conference in Brighton, where Clegg will face a full-throttled attack after opponents within his party won the right to a debate on the issue.

The deputy prime minister attempted to reason with his critics, who claim Clegg has "betrayed" the founding principles of the party. He told a stormy question-and-answer session that he was unable to block the legislation for secret courts and that he believed his parliamentary party had dealt with the worst excesses of the bill going through parliament.

Clegg said: "Please don't allege that this government, with Liberal Democrats in it, is doing something abhorrently illiberal, which we are not."

Jo Shaw, a member of the party and a lawyer who has been leading opposition to the secret courts legislation, said Clegg had failed to reassure his party colleagues and she expected the conference to vote against the leadership on Sundaytoday.

She said: "These measures go against the fundamentals beliefs of Liberal Democrats." Julian Huppert MP, one of the Lib Dems who voted against the bill in the Commons last week, said his party's leadership had worked to improve the legislation but that it was still "not enough".

The failure of most Lib Dem MPs to ignore the party conference's overwhelming opposition to the plans has infuriated Lib Dem members. The Observer understands that several more high-profile supporters are considering resigning from the party.

Shami Chakrabarti, director of pressure group Liberty said: "When one of the pre-eminent human rights' QCs in the country resigns from the ranks, a leader would be wise to reflect on his direction."

She added: "Most Liberal Democrats are rightly horrified by the secret courts bill and astonished that the party that once made civil liberties its USP is now exchanging Mill for Kafka."

Rose has extensive experience of the Special Immigration Appeals Commission (SIAC), which deals with deportation cases that affect issues of national security and constitutes the most secret court in the English legal system. Pivotal cases Rose has been involved in include that of Bisher al-Rawi and other Guantánamo detainees in which they alleged ill-treatment during their detention.

The case led to a supreme court judgment banning secret hearings, known as closed material procedures (CMPs). That ban led the government to introduce the justice and security bill, which will expand the use of CMPs into civil courts.

Rose's resignation note added: "I believe that I am the only person who has acted in SIAC for the home secretary, as a special advocate, and for appellants.

"My conclusion, in common with the overwhelming majority of those who have acted as special advocates, is that CMPs cannot be fairly operated."

[Danny Jarman]

Nick Clegg and his party have betrayed all their principles again in their lust for power.

At least with the tories, you know what you're going to get.

May they burn in hell

[Jan Klimkowski]

Hmm - it seemed business as usual for the military-intelligence-multinational complex whilst Sands was gatekeeper.

What's going down?

Philippe Sands quits Lib Dems in protest at support for secret courts

Prominent lawyer says bill 'will be used to shield governmental wrongdoing from public and judicial scrutiny'


Owen Bowcott, legal affairs correspondent
The Guardian, Monday 11 March 2013 21.55 GMT

The prominent international lawyer Prof Philippe Sands QC has resigned from the Liberal Democrats in protest at the leadership's support for expanding the use of secret courts.

His decision, explained in an article for the Guardian, is the third high-profile departure from the party in the last three days. At the weekend, Dinah Rose QC and Jo Shaw, a former parliamentary candidate who led the campaign within the party opposing the justice and security bill, both quit.

Sands, 52, is professor of international law at University College London. His book Lawless World highlighted the means by which George Bush and Tony Blair damaged the rule of international law in the run-up to the Iraq conflict.

In his article, Sands says: "If adopted, the [justice and security] bill will put British judges in the invidious position of adjudging certain civil claims under conditions in which one party will not be entitled to see the evidence on which the opposing party relies.

" I accept too that there may be times when the country faces a threat of such gravity and imminence that the exceptional measure of closed material proceedings [secret courts] might be needed.

"This is not such a time, and the bill is not such a measure. Under conditions prevailing today, this part of the bill is not pragmatic or proportionate. It is wrong in principle, and will not deliver justice. It will be used to shield governmental wrongdoing from public and judicial scrutiny under conditions that are fair and just. The bill threatens greater corrosion of the rights of the individual in the UK, in the name of 'national security'."

Sands said he had resigned "with regret" and hoped that the views of the party membership might yet prevail, before the bill passes into law.

"If it does not," he added, "the Liberal Democrats will find themselves in a different place, having lost integrity on one issue that has truly distinguished them from other parties, and on which they can rightly claim to have made a real difference."

The Lib Dems have twice voted at their conferences to reject proposals in the justice and security bill that expand the use of so-called secret hearings into the main civil courts.

In a division on an amendment to impose further safeguards on the use of secret courts in the Commons last week, only seven out of 57 Lib Dem MPs rebelled against the coalition government.

The rebels were Simon Hughes, Tim Farron, John Hemming, Sarah Teather, Greg Mulholland, Mike Crockart and Dr Julian Huppert. The last two were both on the committee stage of the bill and therefore among those who examined the legislation most closely.

Commenting on Professor Sands's departure, Shami Chakrabarti, director of Liberty, said: "Philippe Sands is a leading expert in international law who famously exposed Bush-Blair abuses and joined the Liberal Democrats to fight for his values. When do you start listening to your conscience if not when it is echoed by the best and cleverest members of your own family?"

Opponents of the bill have accused the government of rushing the legislation through parliament. The next stage of the bill is expected to be considered in the House of Lords on 26 March.

Ministers in the coalition government believe they have given sufficient ground to the civil liberties lobby to render the measures palatable to most Lib Dem and Tory MPs.

But some of the key safeguards put into the bill when peers defeated the government last November have since been removed during committee stage in the House of Commons.

One of the main Lords amendments that disappeared was the so-called 'Wiley balance' a process of assessment that would have allowed judges to weigh the interests of national security against wider public interest in the fair and open administration of justice.

Kenneth Clarke, the minister without portfolio who is piloting the legislation through parliament, claimed its inclusion would have made the bill unworkable.

Another safeguard introduced by peers was the notion that secret court hearings, also known as closed material procedures (CMPs), should only be used as a last resort. That amendment was also reversed in the Commons because Clarke argued that it would have the effect of forcing a court to consider a full Public Interest Immunity hearing in every case a process deemed too cumbersome and time-consuming.

When the government was defeated on a number of key amendments last November, rebel peers had majorities of over 100 on several of the votes. Parliament's influential joint committee on human rights, which has called for extra safeguards on secret courts, is due to meet on Tuesday to consider its position in advance of the Lords' vote. Lord Pannick, who tabled a number of those subsequently reversed amendments, told the Guardian: "There's still strong feelings in the Lords. It's a great shame the government hasn't listened. What was striking was that Ken Clarke failed to address the fact that a closed material procedure is fundamentally unfair."

The two key changes required are reintroducing the balancing principle for judges and the safeguard that CMPs will only be used as a matter of last resort. "Those amendments are very important," said Pannick, who is a crossbench peer. "I hope the opposition will put those before the House and that the [Lords] will reverse the Commons."

Jo Shaw, the Liberal Democrat campaigner and former parliamentary candidate who resigned from the party at the weekend over secret courts, said: "This bill is being rushed through. Liberal Democrats in the Lords have to examine their consciences very carefully and think very carefully what the Liberal Democrat party is all about. There's sufficient backing in the Lords to stop this [bill]."