Monday, 7 July 2014

Secrecy in court sets a dark precedent

The Daily Star
Monday, July 7, 2014
By Michael Glackin

For a nation that traditionally prided itself on self-discipline and a stiff upper lip, the United Kingdom has suddenly developed a worrying tendency to press the panic button and overreact to the point of hysteria when it comes to national security.

Consider the case of Erol Incedal, a British national of Turkish origin, and Mounir Rarmoul-Bouhadjar, a British national of Algerian origin. Both men were due to face trial in June at the Old Bailey for terror offenses after being arrested in London last October. Incedal and Rarmoul-Bouhadjar are accused of possessing terrorist documents, including a file named “bomb making” on their mobile phones. Incedal is also charged with preparing to commit or assist in terrorist acts. Rarmoul-Bouhadjar, who until last year worked for a housing charity in the London borough of Kensington and Chelsea, also faces a further charge of improperly obtaining a British passport.

Both men deny the charges. So what? Well, until two weeks ago you were not allowed to know anything about Incedal or Rarmoul-Bouhadjar, not their names nor the fact that they had been arrested. In fact, no one in the U.K. was even allowed to know that the pair were about to face trial. And, for the first time in British legal history, their trial was to be held in camera, in secret, behind closed doors.

That’s right. The government wanted the two men arrested, tried and convicted – well, after so much secrecy there is surely little chance they could be released – without anyone ever knowing it had happened, all in the name of an as yet unspecified threat to national security.

Following legal action by media groups, the U.K. appeal court ruled that some aspects of the case could be made public, but insisted that holding the “core” of the trial in secret was justified.

A similar defense was offered after the allegations made by former National Security Agency contractor Edward Snowden, who exposed the shocking extent of government intrusion into the day-to-day lives of individuals. Unknown national security reasons “justify,” again, the abandonment of democratic scrutiny and accountability.

The parts of the trial that will be in public are the swearing-in of the jury, the reading of the charges, part of the prosecution’s opening statement, the verdicts, and any sentencing. The overwhelming majority of the trial will still be held behind closed doors.

In a bizarre twist, selected journalists will also be allowed to attend most of the proceedings, but will not be allowed to report on them. The reporters will have to sign confidentiality agreements and must leave their notes in the courtroom every day.

These few chinks of light serve only to illuminate the expanse of the black hole into which civil liberties are being sucked in this shabby affair. Increasingly, worrying precedents are being set by the British government that infringe on long-held rights. The U.K.’s approach to individual liberty these days fast resembles that of the former Soviet Union at its very worst rather than a mature liberal democracy.

Consider this. Having spent around $171 million of taxpayers’ money and employed anti-terrorism legislation to arrest and prosecute journalists who illegally hacked the phones of politicians, celebrities, and crime victims, the government now wants to impose draconian restrictions on what the newspapers can publish in the future.

These include a Royal Charter, which means basically a set of rules agreed by government and newspapers, but which Parliament would have the right to change later without recourse to the press. So for the first time in more than 300 years government would have the power to regulate what newspapers publish. That means if newspapers annoyed parliamentarians, say by exposing another expenses scandal, Parliament could get revenge by making the rules more draconian.

Meanwhile, British Home Secretary Theresa May recently called for the security services to be given even greater surveillance powers to counter the threat from “returning jihadists.” Considering the spooks are already circumventing current legal safeguards when intercepting emails and phone calls, it is chilling to imagine what further powers could allow them to do.

Indeed none of the nation’s freedoms appear to be beyond the grasp of government, not even the principle of an independent judiciary. Foreign Secretary William Hague and May are understood to have “told” the appeal court judges that if they refused to allow the bulk of the trial of Incedal and Rarmoul-Bouhadjar to be heard in camera the government would have to abandon the case, thereby setting two terror suspects free.

The government insists the need for this trial to be held in camera is “exceptional.” But it puts the principle of open trials on a decidedly shaky foundation. What happens when another “exceptional” need for a secret case arises now that we have allowed a precedent to be set?

There is a school of thought that argues the government wants to set a precedent in this case in order to protect its intelligence agencies from a range of potential legal actions over their complicity in “rendering” terror suspects to the United States through the use of Diego Garcia, a British-controlled atoll in the Indian Ocean leased to the U.S. The island is alleged to have been used to hold and torture suspects out of sight of the law. Based on assurances from the U.S., the British government has consistently denied the claims.

Yet in 2012 the government paid $3.5 million to Sami al-Saadi and his family who claimed they were forcibly transferred to Libya in 2004 via Diego Garcia when the U.K. and the U.S. were trying to curry favor with Moammar al-Gadhafi’s regime. And last year, a legal case was brought by two other Gadhafi opponents, Abdul Hakim Belhadj and his wife, who also claimed they were detained on Diego Garcia. It was turned down after the judge said their “well-founded claim” would jeopardize British national security.

There are obviously times when aspects of trials will need to be kept from the public. But safeguards already exist to allow reporters to attend a trial but which prohibit or postpone reporting. They have even been used in terror trials.

The national security concerns behind this over-reaction have not been made public and it remains uncertain whether the central proceedings of the trial of Incedal and Rarmoul-Bouhadjar, now due to take place in October, will ever be reportable.

Indeed, the question of who will choose which journalists can attend the trial remains unclear. Will it be the courts, the home secretary, the security services? In all cases the government will be dictating which journalists can attend and that is yet another worrying precedent.

Prime Minister David Cameron has talked lately about the need to instill “British values” in young Muslims living in the U.K. to prevent them from falling prey to Islamic extremism. But what message does a secret trial and the lurch to arbitrary and capricious government send to those young Muslims about British values? That democracy cannot stand up to terrorism unless it subverts what it stands for?

Justice should be seen to be done, before it can be said to be done. The need for open trials was succinctly summed up by Jeremy Bentham, the English Utilitarian philosopher, who said: “Publicity is the very soul of justice. It keeps the judge, while trying, under trial.”

The last time the British government attempted to hold secret trials was more than 300 years ago. It led to a revolution and the execution of a king and also gave birth to two more important revolutions, in America and France. The government should ensure that its needless panic doesn’t provoke a similar backlash come next year’s elections.

Michael Glackin is former managing editor of Beirut based newspaper THE DAILY STAR.

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