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Secret courts will let UK security services off the hook Secret courts will let UK security services off the hook
(7 months later)
A clear sign of a democratic government's bad conscience is the way it defends a controversial proposal and how it attacks its opponents. The depths to which this government is prepared to go in defence of its ill-named justice and security bill, which will introduce a whole new category of secret courts, is being shown up by Ken Clarke, the unfortunate minister landed with the task of trying to steer it through the Commons.A clear sign of a democratic government's bad conscience is the way it defends a controversial proposal and how it attacks its opponents. The depths to which this government is prepared to go in defence of its ill-named justice and security bill, which will introduce a whole new category of secret courts, is being shown up by Ken Clarke, the unfortunate minister landed with the task of trying to steer it through the Commons.
The government is desperate to push the measure through. It is being pressed hard by MI5, MI6 and the CIA. For the bill is designed to prevent any sensitive or embarrassing information in their hands being exposed in open court ever again.The government is desperate to push the measure through. It is being pressed hard by MI5, MI6 and the CIA. For the bill is designed to prevent any sensitive or embarrassing information in their hands being exposed in open court ever again.
It is the result of decisions in the recent past by English judges to disclose information showing that MI5 and MI6 knew, from information provided by the CIA, that a British resident and terror suspect, Binyam Mohamed, had been subjected to inhumane treatment. In a case relating to other UK citizens and residents detained at Guantánamo Bay, the supreme court subsequently upheld the fundamental principle that allegations and evidence of wrongdoing by state agents must be heard in open hearings.It is the result of decisions in the recent past by English judges to disclose information showing that MI5 and MI6 knew, from information provided by the CIA, that a British resident and terror suspect, Binyam Mohamed, had been subjected to inhumane treatment. In a case relating to other UK citizens and residents detained at Guantánamo Bay, the supreme court subsequently upheld the fundamental principle that allegations and evidence of wrongdoing by state agents must be heard in open hearings.
Unwilling to have the evidence and allegations of UK involvement exposed – something, they said, that would jeopardise national security – ministers instead agreed to out-of-court settlements in which they paid millions of pounds in compensation to the Guantánamo detainees. It also agreed to pay more than £2m to the family of a Libyan dissident, Sami al-Saadi, who in 2004 was abducted and rendered, with British help, to Muammar Gaddafi's secret police.Unwilling to have the evidence and allegations of UK involvement exposed – something, they said, that would jeopardise national security – ministers instead agreed to out-of-court settlements in which they paid millions of pounds in compensation to the Guantánamo detainees. It also agreed to pay more than £2m to the family of a Libyan dissident, Sami al-Saadi, who in 2004 was abducted and rendered, with British help, to Muammar Gaddafi's secret police.
"At the moment, we pay out millions of pounds. It is arguable that quite a lot of these people would not have got those damages if the defence had been called against them," Clarke told parliament's joint committee on human rights, consisting of peers and MPs, this week. He added: "We don't know where the money goes. You are completely naive if you don't think that some of that money has possibly made its way to a terrorist organisation. That's why we are moving in this difficult area.""At the moment, we pay out millions of pounds. It is arguable that quite a lot of these people would not have got those damages if the defence had been called against them," Clarke told parliament's joint committee on human rights, consisting of peers and MPs, this week. He added: "We don't know where the money goes. You are completely naive if you don't think that some of that money has possibly made its way to a terrorist organisation. That's why we are moving in this difficult area."
There is no evidence to back up his claims. Clarke then told the human rights committee: "Those who oppose my bill prefer silence … You just pay out and the plaintiff gets his money."There is no evidence to back up his claims. Clarke then told the human rights committee: "Those who oppose my bill prefer silence … You just pay out and the plaintiff gets his money."
It is the government, of course, that wants silence – silence, that is, outside the confines of secret courts. And the alternative is not silence, but the exposure in open court of evidence and allegations against the security and intelligence agencies and the police. Many methods have been used in the past to protect genuinely sensitive operational, or personal, information relating to national security from public gaze.It is the government, of course, that wants silence – silence, that is, outside the confines of secret courts. And the alternative is not silence, but the exposure in open court of evidence and allegations against the security and intelligence agencies and the police. Many methods have been used in the past to protect genuinely sensitive operational, or personal, information relating to national security from public gaze.
Critics of the justice and security bill call it a "charter for cover-ups". If the government gets its way, neither the public, nor the claimants, nor their lawyers, will be allowed to hear the arguments made on behalf of the security and intelligence agencies or forces of law and order.Critics of the justice and security bill call it a "charter for cover-ups". If the government gets its way, neither the public, nor the claimants, nor their lawyers, will be allowed to hear the arguments made on behalf of the security and intelligence agencies or forces of law and order.
Richard Shepherd, Conservative MP and a member of the human rights committee, told Clarke: "I find the greatest difficulty in accepting that an applicant to a court may not know the reasons why they have lost their case. It seems to me that confidence in our judicial system is profoundly damaged when you can't say to your client why they have lost their case."Richard Shepherd, Conservative MP and a member of the human rights committee, told Clarke: "I find the greatest difficulty in accepting that an applicant to a court may not know the reasons why they have lost their case. It seems to me that confidence in our judicial system is profoundly damaged when you can't say to your client why they have lost their case."
Clarke dismisses opponents of the bill as the "civil liberties lobby".Clarke dismisses opponents of the bill as the "civil liberties lobby".
He says the government now accepts that a judge should be given discretion as to whether a court hearing should be secret or open.He says the government now accepts that a judge should be given discretion as to whether a court hearing should be secret or open.
However, if the bill becomes law and the government has its way, evidence of direct UK involvement in secret rendition operations, such as the abduction of Libyan dissidents to Tripoli, would be suppressed. That came to light only after Nato's bombing of the Libyan security and intelligence headquarters, scattering the incriminating evidence.However, if the bill becomes law and the government has its way, evidence of direct UK involvement in secret rendition operations, such as the abduction of Libyan dissidents to Tripoli, would be suppressed. That came to light only after Nato's bombing of the Libyan security and intelligence headquarters, scattering the incriminating evidence.
Other examples of what would be suppressed, judging by comments from government lawyers, include the handover of Afghan detainees by Britain to Afghan jails where, in the knowledge of British authorities, they risk being tortured, and the UK involvement in US drone strikes.Other examples of what would be suppressed, judging by comments from government lawyers, include the handover of Afghan detainees by Britain to Afghan jails where, in the knowledge of British authorities, they risk being tortured, and the UK involvement in US drone strikes.
There is a real danger, as the wording of government amendments narrowly passed during the bill's Commons committee stage makes clear, that ministers want secret courts to be used in more and more cases, far beyond the stated claim that it is designed to prevent only genuinely national security-related cases.There is a real danger, as the wording of government amendments narrowly passed during the bill's Commons committee stage makes clear, that ministers want secret courts to be used in more and more cases, far beyond the stated claim that it is designed to prevent only genuinely national security-related cases.
Clarke made some extraordinary claims about the bill last month in response to a robust attack on the bill written by the senior Tory backbencher, Andrew Tyrie and published by the centre-right thinktank, the Centre for Policy Studies.Clarke made some extraordinary claims about the bill last month in response to a robust attack on the bill written by the senior Tory backbencher, Andrew Tyrie and published by the centre-right thinktank, the Centre for Policy Studies.
Clarke said: "This bill will allow light to be shone on material that is currently kept in the dark." The material is kept in the dark because the security and intelligence agencies do not want it disclosed.Clarke said: "This bill will allow light to be shone on material that is currently kept in the dark." The material is kept in the dark because the security and intelligence agencies do not want it disclosed.
Under the bill, the information may be disclosed but only in secret courts attended only by a judge, government lawyers and vetted "special advocates".Under the bill, the information may be disclosed but only in secret courts attended only by a judge, government lawyers and vetted "special advocates".
Clarke said: "In practice nothing will be heard in closed court under these proposals which is currently heard in open." This must be the most disingenuous claim of all. The bill was drawn up precisely to prevent the kind of information about the activities of MI5 and MI6 that has been disclosed in the past, such as their role in the secret rendition of terror suspects, from ever seeing the light of day in the future.Clarke said: "In practice nothing will be heard in closed court under these proposals which is currently heard in open." This must be the most disingenuous claim of all. The bill was drawn up precisely to prevent the kind of information about the activities of MI5 and MI6 that has been disclosed in the past, such as their role in the secret rendition of terror suspects, from ever seeing the light of day in the future.
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