Monday, June 15, 2009

Law Lords Condemn UK’s Use of Secret Evidence-The Kafkaesque world of secret evidence and testing the reliability of intelligence Services

UK Courts courts finding:

" By nine votes to nil, they ruled that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

Report by Andy Worthington - June 13, 2009, published at:

Law Lords Condemn UK’s Use of Secret Evidence And Control Orders
Four years late, the Law Lords finally put the British government’s anti-terror policies under the spotlight on Wednesday by delivering a resounding repudiation of the government’s use of secret evidence to impose control orders on alleged terror suspects (the full judgment is here).

An unjustified stranglehold on liberty: the control orders

Introduced in March 2005 after the Law Lords ruled in December 2004 that the government’s previous policy of imprisoning suspects without charge or trial in Belmarsh prison (which had begun three years before) was in contravention of the Human Rights Act, the control order regime is effectively a form of house arrest. As I explained in an article for the Guardian in April,

[Control orders] keep suspects, for most hours of the day, confined to their houses. They are tagged, told to report to the authorities several times a day, and are subjected to unannounced house raids by Home Office officials to ensure they are not breaching the conditions of their confinement.

Visitors have to be vetted by the Home Office. If the detainee is a single man, he is unbearably isolated; if married with children, he is trapped, unable to work, pushed to mental collapse as his children are unable to have friends over to visit, and are denied access to a computer for their studies.

In the Belmarsh years, several of the prisoners held without charge or trial developed what Gareth Peirce, one of their lawyers, described as “florid psychosis,” and as Press TV reported two weeks ago in an exclusive interview with one of these men, Mahmoud Abu Rideh, a Palestinian who has spent the last seven years either in Belmarsh, Broadmoor psychiatric hospital, or at home under a control order, the practical difference between prison and house arrest is often minimal.

On May 25, Abu Rideh’s wife finally gave up the struggle and returned to Jordan with their children. As Cageprisoners explained, “They were prevented from taking many of their belongings with them since many of the children’s possessions had been seized by police as claimed breaches of their father’s control order.” Cageprisoners also noted that “Mr. Abu Rideh was denied the opportunity of bidding his family farewell at the airport,” and stated that “He now despairs at the thought of never seeing his family again, since he cannot leave the country and his family were told that they have no right to return to the UK, despite the fact that they are British nationals.”

In his interview with Press TV, which took place just a week before the death, reportedly by suicide, of Muhammad Salih, a prisoner at Guantánamo who was held for seven years without charge or trial, Abu Rideh stated that he was unable to bear the thought of living any longer:

I am already dead. My soul, my life, my heart — every part of me is dead. I am just like a machine walking, with no other feeling. I have nothing left — I cannot even sleep at night; I have nightmares of what they have done to me, to my wife, my children, my time in prison, the searches … this is enough. I’ve lost my senses, I’ve been driven insane, I can no longer take it. What is the point of living? I’ve lost everything, I’ve lost my wife, I might as well kill myself, that is better for me. I swear by God I have written to Gordon Brown saying that you have two weeks, if I am not helped in this period I will kill myself, whether that’s by throwing myself in front of a train, or slitting my wrists, or throwing myself from a high building, or taking an overdose, whatever it takes. Nobody has lived the life I have or what I’ve had to endure.

However, while the practical effects of control orders should be genuinely troubling to anyone who believes in open justice, and the ancient right not to have your liberty removed except through the verdict of a jury of your peers, the Lords’ rulingon Wednesday focused on the equally troubling context of how the decisions to impose control orders are made.

The Kafkaesque world of secret evidence

Primarily, this centres on an absurd situation whereby, in the Special Immigration Appeals Court (SIAC), which deals with these cases, special advocates are responsible for representing the accused in closed sessions involving the use of secret evidence, but are prevented from revealing anything about those sessions to the men they represent. This impenetrable barrier to transparency also works in the other direction, as suspects cannot brief the advocates effectively when they are kept in the dark regarding the details of the case against them.

In March, the full, horrific absurdity of this system was exposed by Dinah Rose QC in a Parliamentary meeting chaired by Diane Abbott MP, which was convened to canvas support for an Early Day Motion calling for an end to the use of secret evidence, and to discuss strategies for future campaigns. Uniquely, to my knowledge, Rose has direct experience of SIAC in three different roles — as instructed by the Home Office, as a representative of some of the detainees held on the basis of secret evidence, and as a special advocate — and her insight was, therefore, particularly powerful.

Talking about a case on which she had served as a special advocate, she explained, “The special advocates were told what the evidence was, but we were prohibited from discussing the material with the appellant or his lawyers. We were simply unable to offer any resistance at all to the application, in the absence of any instructions, which might have explained or cast a different light on the evidence.”

As a result, the judge revoked the man’s bail, and ordered him to be sent to Belmarsh. Remembering this ruling, Rose said, “I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: ‘I cannot tell you that.’ I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.”

She also explained that, “although SIAC looks and sounds like a court, and the judges and barristers behave with the courtesy and formalities that are used in court, it is in reality nothing of the kind. Often it feels to me like an elaborate charade, in which we are all playing the roles of barrister, solicitor, appellant and judge, but where the basic substance of a court hearing — the testing of evidence to establish where truth lies — is entirely missing.”

The detainees and the Law Lords’ ruling

In Wednesday’s ruling, following hearings in February and March, the Law Lords were deciding the cases of three men, a joint Libyan/British national, an Iraqi and a British national, who are identified only as AF, AE and AN. This anonymity is allegedly for their own protection — although it also conveniently dehumanizes them — but a few details about them are in the public domain.

AE, for example, who spoke to the BBC on Wednesday, is a Kurdish imam, who fled Iraq in 2002 after being imprisoned by the regime of Saddam Hussein in Abu Ghraib prison, and was given leave to remain in the UK. Seized from his house in May 2006, he says that he has no idea why he was placed on a control order, and has no way of responding to the vague claims that have been made publicly available, which indicate that the security services regard him as a radicalizing influence who supports the insurgency in Iraq. Speaking about when he was first seized, he told the BBC, “I said, ‘Why am I being put on a control order?’ The answer was that they did not have to tell me.”

AN, the British national, who was born in Derby, is apparently regarded as a link between extremists in the UK and the Middle East, and was placed on a control order after returning from a visit to Syria, and the joint Libyan/British national is AF, who was born in the UK to a Libyan father and a British mother. A banking graduate, he had intended to become an accountant, but was placed on a control order in June 2006, allegedly because the Home Secretary believed that he had connections to members of a group opposed to the regime of Colonel Gaddafi (who, lest we forget, was our own implacable enemy until six years ago, when he cannily signed up to support the “War on Terror”). Under the terms of his control order, he is now compelled to remain in his flat for 16 hours a day, cannot see anyone without permission, and is prohibited from using the Internet.

When the Lords made their ruling, they unanimously declared that they had had enough of the system as it currently stands, By nine votes to nil, they ruled that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

In the ruling, Lord Phillips of Worth Matravers, the senior Law Lord, wrote, “A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.”

His opinion was followed by that of Lord Hope of Craigshead, who declared, “The principle that the accused has the right to know what is being alleged against him has a long pedigree … The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case against him.”

Lord Hope also wrote, The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.”

Reinforcing these opinions, Lord Scott of Foscote wrote, “An essential requirement of a fair hearing is that a party against whom allegations are made is given the opportunity to rebut the allegations. That opportunity is absent if the party does not know what the allegations are. The degree of detail necessary to be given must, in my opinion, be sufficient to enable the opportunity to be a real one. The disclosure made to each of these appellants was insufficient to afford him a real opportunity for rebuttal. He did not, therefore, have a fair hearing for Article 6(1) purposes and these appeals must be allowed.

Opposition to control orders in the last two years

Since the control orders were introduced, the scope of their application has regularly been called into question not just by those whose job it is to work tirelessly against the State’s increasingly authoritarian impulses, but also by politicians, and, in particular, by Lord Carlile, the government’s “independent reviewer” of the control order regime.

Last March, a vote in the House of Commons to extend, for another year, the use of control orders — which were, at the time, in place against 15 alleged terror suspects — passed by 267 votes to 60, but, as I explained at the time, “Tory MPs were clearly not bowled over by a hyperbolic statement made by Security Minister Tony McNulty, who, as though infected by the ghosts of previous Labour hard men John Reid and David Blunkett, claimed, ‘The threat (of terrorism) is clearly real, serious and represents a threat unparalleled in our country’s history.’”

Speaking on behalf of his fellow MPs, the Tories’ shadow attorney general Dominic Grieve declared, “On balance, and with a considerable degree of reluctance, our view is we should allow renewal to take place this year.” Other notes of caution were sounded by Labour MPs. Andrew Dismore, the chairman of the joint Human Rights Committee, warned that the orders could create “Guantánamo-style martyrs” unless a maximum time limit was imposed, and Lord Carlile said that no control order should be extended beyond two years “save in genuinely exceptional circumstances.”

Similar scenes — involving Labour scaremongering, Tory “reluctance” and opposition from the Liberal Democrats — took place when the control orders were again renewed three months ago, but the most important dissent to note is Lord Carlile’s mantra, repeated every year in his annual reports (see here for the latest PDF), and just three weeks ago he repeated his call, backed up by peers and MPs on the Parliamentary Human Rights Committee.

Refuting claims by the Home Office that “A definite end-date would mean individuals on control orders could simply disengage from involvement in terrorism-related activity on the basis that they knew they could re-engage at the end of that time period,” Carlile reiterated his assertion that control orders lasting more than two years can only be justified “in a few exceptional cases,” telling the Committee, “After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted.”

Throughout this period, the Law Lords were critical, too, but not with the robustness with which they demolished the policy of imprisonment without charge or trial in December 2004. In November 2007, for example, when they were called upon to review the cases of six Iraqis held under control orders, they ruled that an 18-hour home curfew was in breach of the right to liberty, as guaranteed by the European Convention on Human Rights, and, moreover, ruled that the system of secret evidence must be changed to let the suspects know the case against them, and to give them the right to a fair hearing, even though the Home Secretary, Jacqui Smith, proceeded to ignore their ruling about secret evidence (leading, 19 months later, to Wednesday’s reiteration of terror suspects’ rights), and also showed little willingness to relax the curfews.

As I explained in an article at the time, there was some great rhetoric in the ruling. Lord Brown, memorably, said that the right to a fair hearing was “one of altogether too great importance to be sacrificed on the altar of terrorism control,” and Lord Hoffman declared, “Such is the revulsion against detention without charge or trial, such is this country’s attachment to habeas corpus, that the right to liberty ordinarily trumps even the interests of national security,” adding that such rights were simply “too precious to be sacrificed for any reason other than to safeguard the survival of the state.”

However, as I also noted at the time, it was apparent that, by refusing to condemn the control orders outright, the Lords “perpetuated a brazenly draconian system, which appears, dangerously, to be fuelled by anti-Muslim vindictiveness, even though the more prosaic truth is that it is driven by an anachronistic refusal to ‘compromise the security services’ by proceeding with trials using intercept evidence (despite the fact that most other western democracies have managed to do so without imperiling their ‘spooks’).”

Throughout this period, however, the most disturbing opinions came not from the Lords, but from the Court of Appeal, whose ruling in October 2008 — that there might be cases where “very little indeed” or nothing could be disclosed to people accused of being involved in terrorism, in spite of a dissenting judge’s alarm at a principle that might “move us back towards unbridled executive power over personal liberty” –- partly triggered the Law Lords’ latest review, and may, in its bald defense of intolerable secrecy, have contributed to a necessary backlash.

What next?

What happens next is not entirely clear. The Lords did not quash the control orders on Wednesday, but ordered the men’s cases to be heard again, and it is now up to the Home Office to decide whether to release more material to the men and their lawyers, or to rescind the control orders completely.

It is also unclear what effect the ruling will have on the other 14 men who are currently on control orders, or the 20 or so men in prison — or on deportation bail — whose cases are closely related, differentiated only by the government’s extremely dubious determination to deport them to their home countries, even though, as I reported in February, this involves politicians and judges being obliged to creatively reinterpret the anti-torture laws preventing the return of foreign nationals to countries where they face the risk of torture.

New to his job, Home Secretary Alan Johnson has not yet succumbed to the rabid paranoia that infects all Home Secretaries when confronted by the “terror threat.” In February, for example, Jacqui Smith actually declared war on the government’s own secret terror court, overruling decisions by a SIAC judge that met with her disapproval, and — in what can only be described as an act of executive fiat — unilaterally revoking the bail of five men on deportation bail, kidnapping them on their way home from the London courtroom (or in raids on their homes) and imprisoning them in Belmarsh until the judge reasserted his authority the following day.

Presumably reading from a script that was left for him by Smith, Johnson said on Wednesday that the judgment was “extremely disappointing,” but did not spontaneously combust, as Jacqui Smith may well have done. “Protecting the public is my top priority and this judgment makes that task harder,” he continued. “Nevertheless, the government will continue to take all steps we can to manage the threat presented by terrorism.”

He added, “All control orders will remain in force for the time being and we will continue to seek to uphold them in the courts. In the meantime, we will consider this judgment, and our options, carefully.” Explaining that control orders had been introduced to “limit the risk posed by suspected terrorists who could not be prosecuted or deported,” as the Guardian put it, he also said, “The government relies on sensitive intelligence material to support the imposition of a control order, which the courts have accepted would damage the public interest to disclose in open court. We take our obligations to human rights seriously and as such we have put strong measures in place to try to ensure that our reliance on sensitive material does not prejudice the right of individuals subject to control orders to a fair trial.”

This was standard government fare, though rather muted in its delivery, but if the new Home Secretary is seeking a “third way,” beyond releasing more sensitive material or rescinding the control orders, he might want to take some advice from Chris Huhne, the Liberal Democrat home affairs spokesman, who responded to the Lords’ ruling by saying that it “clearly states that control orders are a fundamental infringement of human rights and an affront to British justice. It is unacceptable to deny a person freedom without even telling them what they are suspected of.” Crucially, Huhne added, “We do not need to sacrifice the freedoms we have fought so hard for. We must not become what we are fighting. This discredited regime should be scrapped immediately. The government should focus instead on making it easier to prosecute terrorists by making intercept evidence available in court.”

Using intercept evidence, and testing the reliability of the intelligence services

Huhne’s main point — that the government should find a way to join the rest of the world in finding a way to use intercept evidence in court without compromising its intelligence sources or methods — is clearly the way forward, as without it the government is left clinging to nothing but its manifestly unjust, and largely failed attempt to deport men on the sly, or is required to maintain the “house arrest” charade that is both horribly petty and ruinously strenuous for those held in such a novel form of legal limbo.

As I also explained in my article in February, the government has, for years, been distressingly intransigent on the subject of intercept evidence, although, in a recent letter from the Home Office, Minister of State Vernon Coaker informed me that “We [the government] have accepted the Chilcot recommendation that we should introduce intercept as evidence provided the conditions outlined in the report can be met.”

The reference to “the Chilcot recommendation” refers to the findings in the Privy Council Review Of Intercept As Evidence (PDF), headed by Sir John Chilcot and published in January 2008, and although Coaker’s concession is still rather hedged in by caveats, I hope that it signifies real change, because on Wednesday, the NGO JUSTICE, which describes itself as “an all-party law reform and human rights organization working to improve the legal system and the quality of justice,” published a major report on the use of secret evidence in British courts since SIAC was introduced in 1997 (241 pages, PDF), establishing the extent to which secret evidence has been used “in a wide range of court proceedings from deportation hearings before SIAC, pre-charge detention hearings in terrorism cases, employment tribunals, asset-freezing cases, parole board hearings, and control order cases in the High Court and the Court of Appeals.”

The report also explains that, although more than 90 special advocates have been appointed since 1997, “no central figures are published and even the government may not know the total number of special advocates that have been appointed,” and also notes, in an analysis of the use of secret evidence that is at least as worrying as the “mission creep” outlined in the paragraph above, that “defendants in some criminal cases are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions [passages blacked out] to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in criminal trials and is widespread in ASBO hearings.”

In conclusion, then, if justice is once to be asserted in the UK, the government needs to move fast on incorporating intercept evidence in terror trials, so that the public — as well as the suspects themselves — will be able to test the validity of its claims. One additional problem with secret evidence, of course, is that its use shuts off all scrutiny of the intelligence services’ reliability, and although it is necessary for this work to take place behind the scenes, it is also unacceptable for the government to effectively hide behind a blanket assertion that the intelligence services never make mistakes, and that “national security concerns” should quash any notion of skepticism on the part of lawyers, prisoners and members of the public, especially because the public record is littered with abominable failures of intelligence in the years since the 9/11 attacks.

Without even having to draw comparisons with the non-existent “ricin plot,” the pointless and brutal Forest Gate raid, the intelligence failures surrounding the terrorist attacks on July 7, 2005, the murder of Jean Charles De Menezes, and countless other incidents, some of the chronic failures of intelligence in the control order regime — compounded by bureaucratic incompetence — are already well-known. In April 2005, for example, the Home Office was forced to apologize to ten of the men under control orders after what it described as a “clerical error,” which resulted in letters being sent to them stating, incorrectly, that the basis for their detention was their alleged involvement in the “ricin plot,” and in January 2005 an extraordinary list of intelligence blunders relating to the Belmarsh prisoners was published in the Independent.

In an article entitled, “Belmarsh detainees: Flawed intelligence exposes scandal,” Robert Verkaik noted, amongst other errors, that “A security service assessment was embarrassingly withdrawn after it emerged that the purpose behind a visit to Dorset by a group of Muslim men had not been to elect a terrorist leader but to get away from their wives for the weekend,” that “The Home Secretary has been forced to concede that some of the funds raised by [Mahmoud] Abu Rideh for alleged terrorist activity were sent to orphanages in Afghanistan run by a Canadian priest,” that “Two of the detainees were awarded compensation for false arrest shortly before they were detained under the anti-terrorist emergency powers,” and that “Testimony against two of the detainees came from an affidavit sworn by a man who was offered a lenient sentence in return for evidence.”

Although Verkaik observed, justifiably, that these mistakes were based on the “open” evidence against the suspects, he was undoubtedly correct to add that “the inaccuracy of some of these assertions raises questions about the reliability of the secret evidence that the detainees have never been allowed to see.” Given the government’s poor track record, there is absolutely no reason to believe that the quality of the government’s secret evidence is any more reliable, and, in fact, more than enough reasons to suspect that it not only involves credulousness and incompetence, but also, as with the “ricin plot” (one of whose cleared defendants is currently on a control order), material derived from the use of torture.

As Eric Metcalfe, JUSTICE’s director of human rights policy, said in response to the Lords’ ruling on Wednesday, “The House of Lords judgment marks a turning point. The government can decide to limp on with the use of secret evidence for ever diminishing returns. Or Parliament can act to end its use once and for all.” He added, “Secret evidence is always unreliable, unnecessary, undemocratic and unfair. Because it has never been properly tested, it breeds complacency and false confidence in its results. Secret evidence damages public trust in our courts and in the rule of law itself.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.