Smoke and Mirrors in the British Battle Over ‘Secret Justice’
A struggle is brewing in England over the fate of British justice. In a wide category of cases against the government, British spies are seeking to muzzle British judges, supposedly to appease the CIA. It’s a bad idea predicated on a myth, and the British people shouldn’t fall for it.
Full disclosure: I am not a Briton. I’m from Texas, but for years have watched British courts closely from my perch in London at Reprieve, a human-rights law firm that defends people who have been tortured or held in secret detention around the world. Judges here have always struck me as a fair-minded bunch, especially when it comes to torture and the war on terror. In London, we even win a torture-related case now and then. But the British spies are stirring, trying to change the rules of the game so torture victims might never win.
The spies say they are upset about a case we brought in 2008 for our client Binyam Mohamed. Mohamed was held in Guantánamo, facing a military commission, and had previously been sent to Morocco by the CIA for 18 months of genital torture. The British played a supporting role, interrogating him in Pakistan before his rendition, and passing questions via the United States into the Moroccan torture chamber. For this, we sued the British for information to save Binyam from a death sentence by military commission—and won. In the ensuing furor he went home to Britain, becoming the first Gitmo prisoner released by President Obama.
Today, Binyam is a household name in Britain, yet few in the U.S. have ever heard of him, despite the fact that he also brought a case here over his rendition.
MI5 and MI6—Britain’s intelligence agencies—have had enough of this state of affairs. It’s easy to see why: torture cases are humiliating, and must seem to them totally unfair. Their sister agency, the CIA, has so far avoided any accountability for operating a global program of secret detention and torture. Meanwhile, British spooks—who fancy themselves subtler than the U.S., rather above this uncivilized business of flying people around the world to have them tortured—have been the subject of censure in Britain.
So they have a plan, and British media this week has been abuzz with it. The English call it “queering the pitch”—what’s known in America as “moving the goalposts.”
The seed of the idea is in the blandly named “Green Paper on Justice and Security,” which you can read here but shouldn’t. Better to read the reaction of the only parliamentary committee to consider it, which said recently that the whole idea was “spurious.” The object is simple: shut the torture cases down and punt everything vaguely embarrassing into secret hearings. There are two major planks to what the U.K. media are calling the “secret justice proposals”: One, a government minister, and not a judge, will be able to decide that certain trials (and investigations into deaths) are to be held entirely in secret. Two, cases like the one we brought for Binyam Mohamed, seeking British-held evidence of torture in order to defend oneself elsewhere, will be abolished.
This isn’t the first time the U.K. executive is seeking to trample the supposedly vaunted British principle of open justice. (Indeed, it might be fair to say the excesses of the Star Chamber, to which the spies’ plan is heir, helped put our forefathers on the boat in the first place.) But what’s interesting from an American perspective is how British spooks are seeking to blame their push for closed courts entirely on the CIA.
It’s the Americans, they say, who are demanding these changes. It’s the CIA, according to them, who are still furious over Binyam Mohamed. It reminds one of how British spies repeatedly said the CIA alone was involved in torture, even as they fell all over themselves to take credit for rendition operations behind closed doors. U.K. spies are arguing that if British court systems don’t hear torture cases in secret—and if Binyam-style disclosure actions aren’t scrapped entirely—the well from Langley will dry up, with disastrous results for British security.
Here’s what’s bizarre about this: U.S. agents, asked point-blank, have said repeatedly that they would never withhold key intelligence from their closest ally. The U.S. needs U.K. intelligence too much to be able to do this. As a U.S. spy told the Daily Mail: “ ‘The U.S. regards extremists in Britain as a primary threat to the American homeland,’ the source said. ‘The CIA works closely with the British intelligence community. Failure to pass on critical intelligence would not just hurt Britain, it would be like shooting ourselves in the foot.’”
Would the CIA really sever these ties? I just don’t buy it. What’s more likely at work is that MI5 and MI6 hate the limelight and will seize any excuse to avoid being sued. The CIA may be secretive, but MI6 didn’t even admit its own existence until 1992. Even today, little is known about its operations. Meanwhile, while U.S. courts have failed to deliver justice to torture victims, it’s not because the information isn’t out there. At least we have the torture memos and other key documents describing the CIA’s torture program. (A full account of Binyam’s torture came out not in the U.K., but when a federal judge in Washington, D.C., included it in her Guantánamo opinion.)
More disturbing still, the secrecy regime the U.K. spies are pushing is far more restrictive than the secrecy I deal with to represent clients in Guantánamo, who are (wrongly) the most feared bogeymen in American political life. At least I can talk to a client in Gitmo after I see secret documents. We are even trusted with the odd phone call. In the system British spies want unrolled in the torture trials implicating them, once secret evidence goes in, the only person who would speak for the victim is a lawyer who would be forbidden to talk to the plaintiff or his lawyers.
It remains to be seen whether MI5 and MI6 will have their way. If they do, it’ll be a shame. For the past 10years, British justice has far outdone the Americans when it comes to torture victims getting a fair hearing. The mistakes of the last decade—especially torture—warrant an informed public debate about the proper role of spies in a democracy. Should the Green Paper become law, the worst mistakes and ugliest abuses will be kept firmly behind closed doors.
The British spooks could do with a little bit of George W. Bush’s old chutzpah. Have the dignity to take responsibility for your own plans. Stop blaming it on the Americans.