Thursday, 4 March 2010

Time to remove the shroud caused by secret evidence

It was encouraging recently to see the courts at last start to question the abuse of British citizen’s most basic human rights with the decision to force the government to publish material that confirmed complicity in torture.The individual tortured was Binyam Mohammed who was moved around a number of bases in Pakistan, Morocco and finally Guantanamo Bay. A judge in a US court of spoke recently as to how the "trauma lasted for two long years. During that time he was ­physically and psychologically tortured. His ­genitals were mutilated ... Captors held him in stress positions for days."In the Appeal Court judgement, the Master of the Rolls Lord Neuberger declared that the security service MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee and had a “culture of suppression” of information.The Foreign Secretary David Miliband had previously been seeking to withold publication of material revealing the treatment of Mr Mohammed on the basis that it would damage the relationship with America regarding intelligence matters and preventing terrorism.The conduct of this case has revealed just how dominant the culture of secrecy is in Whitehall. It also shows just how little regard there is in this Labour Government for human rights and international law. It has been good to see the courts rolling back at least some aspects of the pervasive secret state whose tentacles have stretched out ever further over the past decade under the aegis of the fight against terrorism.Prior to the most recent expose on torture, the courts ruled there must be disclosure as to why control orders were made. The government response thus far has been to drop control orders as they come up for renewal and seek to choreograph acceptance of a new watered down version of this form of detention. Its “independent” terrorism reviewer Lord Carlile has been central to this process, declaring his dislike for control orders but approving them none the less though with added provisos such as time limitations.
The courts need to go further in unravelling the morass of secret evidence. The whole process set up following the attacks on America of 11 September 2001 aimed at detaining people without trial is based on secret evidence, provided by the same agencies against whom Lord Neuberger delivered his withering judgement.A number of individuals first picked up in 2001 following the passing of the Anti-terror crime and security Act remain in a complete state of limbo. They are either detained in prison or held under house arrest style detention with their families. The state would like to deport them but is unable to do so because most fled their home countries, like Algeria, in fear for their lives. Returning home, would mean at best incarceration for a number of years and probable torture. The process of detaining these individuals has been undertaken under the immigration court system overseen by the Special Immigration Appeals Commission (SIAC). The SIAC court represents a Kafkaesque setting where neither the accused or their lawyers are allowed to see the material on which the detention is based. Only the judges and special advocates appointed for the men have been able to see this material. The men claim to have never been interviewed about what it is they are supposed to have done or might do. The situation was best summarised by Dinah Rose QC, who has acted as a special advocate in the past. She recalled how a man in a bail hearing asked the judge: “why are you sending me to prison?” to which the judge replied: “I cannot tell you that”. Ms Rose added, “They simply took him to jail, without any explanation at all.” It is this process of using secret evidence via the immigration court system to detain people indeterminately that needs to be removed. It is the British version of Guantanamo style justice, working in the shadows, unknown to most people. The reality is, as lawyer Gareth Peirce has highlighted, that these systems of detention based on secret evidence- sometimes it would now seem obtained by torture-are experiments by government to see just how far it can go in the denial of liberties. Hopefully the recent decisions of the courts over the Binyam Mohammed case and against control orders mark a watershed. Next, all of those men who have been detained for so long on the basis of secret evidence should be either brought before a court of law to answer charges or set free. Then just maybe Britain can start to raise its head again in the world of international law and human rights.

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