Britain’s Guantánamo: Calling For An End To Secret Evidence

Britain’s Guantánamo: Calling For An End To Secret Evidence by Andy Worthington
1.4.09

On Monday, in a packed committee room in the House of Commons, politicians, lawyers and human rights campaigners came together to discuss how to both confront and publicize the British government’s increasing reliance on the use of secret evidence, and evidence obtained through torture. The meeting focused in particular on the cases of five men held under strict bail conditions or in prison, on the basis of secret evidence, who are facing deportation, even though they face the risk of torture, as a result of “diplomatic assurances” agreed between the British government and the governments of their home countries. However, the use of secret evidence also affects other men, held under control orders, who cannot be deported either because they are British nationals, because the British government has failed to secure “diplomatic assurances” that it regards as credible, or because, on occasion, the courts have intervened to prevent their deportation.

Since the terrorist attacks in the United States on September 11, 2001, our government has aped the horrendous flight from domestic and international law that was introduced by the government of George W. Bush in its brutal and chronically ill-advised “War on Terror,” and, as a result, has fatally undermined Britain’s reputation as the country that introduced habeas corpus — establishing that no one may be imprisoned “except upon the lawful judgment of his peers or the law of the land” — and exported it to the rest of the world. As the American lawyer Tom Wilner explained to me in an interview for a forthcoming documentary about Guantánamo, “That’s the most basic protection of the law and you in England should be very proud of it because it is the basis of the rule of law around the world.”

It is, moreover, just as disturbing to realize that this descent towards tyranny has taken place while largely ignored by the British public, or hidden from it through the complicity of the media, and to note that, while many British people were happy to bash the Bush administration for its brutal and lawless policies, they have been far less willing to accept that similar policies have been implemented in their own backyard.

As Gareth Peirce, the solicitor for many of the men held in Britain on the basis of secret evidence, explained in an introductory letter to the meeting,

Reliance upon secret evidence in this country, in ways that avoid any proper open scrutiny, increases daily. In recent months this reliance, far more extreme in the UK than in any equivalent democracy, has been commented on with intense disapproval by every relevant international body including the “Eminent Jurists Panel” of the International Committee of Jurists (which studied over two years the use of anti-terrorism practices worldwide), the United Nations Committee on Human Rights, the United Nations Special Rapporteur on Human Rights (PDF), and the European Court of Human Rights in the case of A and Others.

The nightmare that surrounds this particular small group of men upon which the meeting focuses, is not therefore an isolated event; it takes place in the context of an important, far wider and ever increasing way in which we find our laws and their application on a collision course with the most basic of concepts; that an accused person knows the case against him, and can contest it in a fair, open and public hearing.

The concept is easy, but the need to explain it and debate it adequately is not easy — it is elusive and appears not to affect most of society.

As well as attracting a wide range of lawyers and activists, Monday’s meeting also succeeded in drawing support from a number of MPs, including Peter Bottomley, David Davis, David Drew, Lynne Featherstone, Kelvin Hopkins, David Lepper, Sarah Teather and Des Turner, and members of the House of Lords, including Baroness Howells and Lord Avebury. The MPs were asked to pledge their support for an early day motion declaring “That this house believes the use of secret evidence in UK courts is fundamentally wrong,” and Diane Abbott opened the meeting by declaring that it had three additional aims:

1) To form a group of interested parliamentarians, lawyers, doctors and activists to continue to work on this issue;
2) To call for an independent inquiry into the use of secret evidence in the UK;
3) To ask for assurances from the FCO and the Home Office that secret evidence used here is not based on evidence obtained through torture.

Also mentioned was a proposal to ask those MPs who have constituents who are being detained — whether in prison or in their homes — to visit Long Lartin prison, or their constituents’ homes, to see for themselves the conditions in which they are held.

The speakers — Gareth Peirce, Shami Chakrabarti, the director of Liberty, Ben Ward of Human Rights Watch, and Dinah Rose QC — then ran through the history of secret evidence, and addressed its significance. Gareth Peirce said that we were two-thirds of the way down a slippery slope, from which there could be no return, and called the current situation a “national emergency.” She noted that, when Guantánamo opened, and people saw the shackled prisoners in their orange jumpsuits, they were reminded of slavery, and instinctively knew that it was wrong, and that when Stephen Lawrence was murdered, people again knew instinctively that what had happened was wrong, but that in the case of the men detained in the UK over the last seven years, these instinctive responses have been stifled by the use of secret evidence.

The other speakers highlighted different aspects of the government’s policies. Shami Chakrabarti described the history of SIAC (the Special Immigration Appeals Commission, which assesses the deportation cases, often taking evidence in closed sessions), and explained how, after 9/11, it had mutated into a “secret terror court,” and Ben Ward drew the meeting’s attention to a troubling passage in the FCO’s recent report on human rights (PDF, p. 16), in which, after stating, “The use of intelligence possibly derived through torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it,” the report’s authors added, “Where there is intelligence that bears on threats to life, we cannot reject it out of hand.”

Although this was followed by a declaration that it is “quite clear” that “information obtained as a result of torture would not be admissible as evidence in any criminal or civil proceedings in the UK,” the passage as a whole confirms not only that the FCO is committed to keeping open a torture loophole, but also that, because that information cannot be used in a court, it will, instead, undoubtedly contribute to perpetuating the very system of detaining people on the basis of secret evidence that Monday’s meeting was convened to address.

I was particularly impressed by Dinah Rose’s statement, in part because, as a barrister, she 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 (the barristers who represent the detainees in closed sessions, but who are prohibited from discussing anything that takes place in these sessions with either the detainees or their lawyers).

Dinah stated that it was “hard to explain just how shocking an experience SIAC is for an advocate used to the basic norms of our legal system,” adding, “It is the first principle of natural justice that a person has a right to know the case against them, so that they can respond to it. We take this principle for granted, from our earliest childhood.” Noting that “this principle simply does not apply in SIAC,” she explained that, as a result,

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.

Dinah proceeded to provide two anecdotes which vividly demonstrate how SIAC and the use of secret evidence have undermined the principles of natural justice. In the first, she recalled an incident a few years ago, when she was working as a special advocate in a hearing at which the Home Secretary applied to revoke a detainee’s bail on the basis of secret evidence. This related to alleged attempts by the detainee to breach his bail conditions, but, as 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.” She proceeded to explain that, as a result, the judge revoked the detainee’s bail, and ordered him to be sent to Belmarsh, and added,

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.

On another occasion, Dinah was working with a colleague on the case of another detainee, who, it was alleged, “had attempted to travel on a particular date, using a passport which belonged to another suspected terrorist.” It was only because her colleague was working on another case, in which another detainee was accused of exactly the same offence — using the same passport, on the same day and at the same time — that it became apparent that the intelligence services had made a serious mistake in compiling their evidence, but she explained that when she subsequently went on a training session with the intelligence services, and asked for an explanation of how such a mistake had been made, she was told, “very firmly,” that it was “impossible.”

Bringing the story up to date, Dinah then described what happened five weeks ago, after SIAC was convened to assess the bail conditions of the five detainees facing deportation. As she described it, she and her colleagues “successfully resisted” an application by the Home Secretary to revoke their bail, but instead of abiding by the Court’s ruling, the Home Secretary then arranged for the two men who had attended SIAC to be sent to Belmarsh prison instead of going home, and imprisoned the other three after seizing them from their homes. Dinah then explained what happened next:

The next morning we returned to SIAC urgently to seek habeas corpus and a renewal of bail, and asked politely on what basis our clients had been detained. The explanation, in relation to four of the five, was not that there had been any new development or evidence which had emerged since the hearing. Rather, the Home Secretary had simply disagreed with the judge’s assessment that it was not necessary or proportionate to lock the men up. So, notwithstanding the decision given on the previous day, she had decided to go ahead and detain them anyway.

She added that, although she was constrained from commenting further, because the Home Secretary’s decision “remains the subject of legal proceedings,” she “made the point at the time that such conduct by a government minister is a basic violation of the principle of the rule of law,” and she concluded her statement by declaring that “we should be more disturbed than we are about what goes on in SIAC. Unless its activities are subject to the scrutiny of parliament and the media, there is a significant risk that principles which I had always comfortably assumed to be so deep rooted in the UK that they no longer needed defending could be further eroded.”

In a successful attempt to humanize the detainees, who are mostly identified only by initials (Detainee Y, Detainee BB, Detainee U, and Detainee Z), the speakers’ statements were punctuated by other statements, written by the detainees themselves, or compiled from interviews conducted by their friends, which were read out by Honor Blackman and a group of actors from the National Theatre. The first three of these statements will be published after this article, and the other two will be published tomorrow, along with another article, “Britain’s Guantánamo: Fact or Fiction?” which compares and contrasts the regimes implemented by the Bush administration at Guantánamo, and the British government in the UK.

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.

For the first two article in this series, see Britain’s Guantánamo: An Introduction and Torture taints all our lives (published in the Guardian’s Comment is free), and for other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009).

FIND all the above with LINKS, Comments and information on Andy Worthington's book:
-The Guantanamo Files- at here
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