That Zero Dark Thirty, Kathryn Bigelow’s film on the hunt for Osama bin Laden, failed to win a major Oscar last week was apparently the result of US controversy over sequences showing detainee torture, including waterboarding, by the CIA. The underlying argument was not really about whether this went on, which it did, but whether Bigelow should have exposed it.
But American politics has also played a – not dissimilar – role in the formulation of the UK Justice and Security bill reaching its crucial Commons Report stage today. This would anyway be a big moment since the bill proposes for the first time secret court hearings or “Closed Material Proceedings” [CMP] for civil cases “in which national security sensitive material is central”.
But it is also a severe test for the coalition. The Liberal Democrats face a grass-roots revolt over the bill, which the party’s October conference voted to oppose on the grounds, as activist Jo Shaw put it simply at the time, that “secret justice is not justice”.
Ken Clarke, in charge of the Bill, told Tory MPs last week that a main aim was reassurance of “Heads of State of our closest intelligence sharing partners that we will keep their secrets”. Nobody doubts that he is talking mainly about US concern about what might be divulged in cases brought by former detainees against the British government.
The case against secret justice is powerful. Allowing the government to testify in the absence of the other party – not to mention the press or public – breaks with the age-old adversarial system of open justice. The former Director of Public Prosecutions, Lord Macdonald, described last year, when the Lords sought substantially to amend the Bill, how often he had watched “evidence that at first sight seemed persuasive and... accurate disintegrating under cross-examination conducted upon the instructions of one of the parties...”
Clarke says that job will be done by security-vetted Special Advocates – an argument undermined by the Special Advocates’ opposition to the bill. Instead critics – including the Special Advocates – argue that security would be much more fairly protected by the well-tried system of Public Interest Immunity [PII] certificates, excluding genuinely sensitive information, like the names of agents, from otherwise open proceedings.
It’s largely through the courts that the still very incomplete story of British complicity with rendition and maltreatment has started to emerge – like the case brought by the Ethiopian-born Binyam Mohamed, who eventually secured £1m compensation from the UK government over its complicity with US forces holding him. Mohamed’s lawyers applied the common law “Norwich Pharmacal” principle – under which a plaintiff can oblige a respondent to give information of third-party wrongdoing if it is needed to secure justice.
The Bill suspends that principle where it means disclosing any information on the intelligence services – a designation deplored as “extremely wide” by the former Conservative Lord Chancellor, Lord Mackay. And while purportedly strengthening scrutiny, Clarke has rejected an all-party recommendation that the parliamentary Intelligence and Security Committee chairman should be elected by secret ballot.
Clarke, in retreat, has repeatedly modified the bill in the face of opposition – including a campaign by the Daily Mail, told last week by the Rev Nicholas Mercer, the army’s top lawyer during the Iraq war, that the bill’s main aim was “to cover up UK complicity in rendition and torture”. But though narrower, the gap between Clarke and his critics, who insist closed courts should be a “last resort” is still deep. Clarke has refused to allow the judge to apply the “Wiley” principle, weighing the interests of open justice against security considerations however minor. Or to consider whether a PII would be preferable. Instead, the judge must merely be satisfied that the minister has considered the PII alternative. Lawyers doubt judges could in practice challenge a Minister on this.
Clarke argues that the £30m he says the government has already paid to litigant ex-detainees, rather than risk divulging sensitive information, could be used to fund terrorism. But describing this as a “smokescreen”, Lord Macdonald pointed out last week that the government can prosecute anyone funding terrorism and suspend assets it thinks are so used.
After some hesitation, Labour is now holding out for further safeguards. The LibDems have in been in disarray amid suspicion that the Commons debates were brought forward to avoid a damaging confrontation at their Spring conference before the bill becomes law. But it is Andrew Tyrie, the independent-minded Tory chairman of the Treasury Select Committee, who has most galvanised Commons opposition to the bill. Unsurprisingly since he has also done most to highlight British involvement in extraordinary rendition.
For Tyrie, this is about “the kind of country we want to live in”, one that eschews torture and the secret justice which – among much else – would help cover it up. Just how slowly information has seeped out is underlined by Jack Straw’s saying in 2005 that there “is simply no truth that the UK has been involved in renditions, full stop”. It was not until 2008 that David Miliband told the Commons he was “very sorry indeed to have to report ... the need to correct those and other statements on the subject.”
It’s hard not to conclude that the bill is less about necessary protection of state secrets than keeping the dark underside of the intelligence agencies, and what governments ask them to do, from the light of day. Those MPs, incidentally, who believe that torture is necessary to the “war against terror” rather than a recruiting sergeant for groups like al-Qai’da may reflect that in Bigelow’s film the key information came not from detainee maltreatment but from rediscovery of a tip freely supplied to – and too long discarded by – the CIA after 9/11.