In the Guardian: The end of secret evidence?

For the Guardian’s Comment is free, “The end of secret evidence?” is an article I wrote celebrating what appears to be the demise of the British government’s eight-year policy of imprisoning terror suspects — both foreign and British nationals — without charge or trial, or otherwise depriving them of their liberty under a form of house arrest, on the basis of secret evidence.

The apparent demise of the government’s ill-considered response to terrorist threats in the wake of the 9/11 attacks follows a High Court ruling yesterday. Referring to a ground-breaking ruling in June, in which the Law Lords concluded that the government’s use of secret evidence contravened the right of those held under control orders to a fair trial (as guaranteed by Article 6 of the European Convention on Human Rights), the High Court judges extended these same rights to other men facing deportation under identical circumstances. It was, the judges said, “impossible” to conclude “that in bail cases a less stringent procedural standard is required” than in control order cases.

The heart of the problem, for the last eight years, has been the government’s insistence that it is legitimate to restrict detainees’ access to secret evidence.  In the “terror court” — the Special Immigration Appeals Court (SIAC) — which is used for cases allegedly related to terrorism, special advocates are appointed to represent detainees in closed sessions, where secret evidence is discussed, but are then prevented from discussing anything that take place in these sessions with the men they represent. As I explained in June, “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.”

The Law Lords’ ruling in June signaled the beginning of the end for the control order regime, and yesterday’s High Court ruling, in the cases of two men whom the government wishes to deport — XC, a Pakistani student and one of the North West 10, and U, an Algerian — does the same for the system of deportation bail.

As I wait to see if the government will finally wake up to proposals put forward by the all-party law reform group JUSTICE (PDF), which include comprehensive explanations of how sensitive material can still be protected within a legally acceptable framework (rather than basing policy for eight years on paranoia and a disdain for the law), I leave the final word for now to the indefatigable solicitor Gareth Peirce, who has represented some of these men since they were first imprisoned without charge or trial in Belmarsh in December 2001.

As the Guardian explained, she “welcomed the court’s ‘resounding no’ to the idea that individuals could be detained on the basis of secret evidence, without recourse to apply to the high court for judicial review,” and stated, “The judges said there is an absolute, irreducible minimum of information that an individual should have.”

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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009).