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Tuesday, March 05, 2013 

Keeping secrets secret.

There's a scene in the film Liar Liar (this will almost certainly be the only time I quote from a Jim Carrey film other than the Truman Show or Eternal Sunshine of the Spotless Mind approvingly) in which Carrey's character, compelled to tell the truth after a wish made by his son, screams down the phone at a long-term client once again seeking his legal advice that he should "STOP BREAKING THE LAW, ASSHOLE".

 A similar scene ought to have been repeated a long time ago when it came to the intelligence agencies and their active collusion both with the US rendition programme, and indeed as we now know, MI6's own escapades in delivering opponents of Gaddafi back into his torture system, I mean prison system.  Of course, this could never have happened as, we also now know, it was Jack Straw who was signing the paperwork that authorised the rendition in the first place.

The misfortune of the coalition is that they've been the ones left to deal with the mess created by years of litigation from former detainees who believe, rather justifiably considering what's come to light as well as from their own experiences that both MI5 and SIS were up to their neck in rendition.  The government, desperate to ensure that hundreds of thousands of pages of documents detailing what was going on at the time the former Guantanamo detainees were either being transferred or in the odd case, actively handed over to the Americans remain secret, has in the aftermath of the "seven paragraphs" and a ruling by the Court of Appeal that allegations of wrongdoing must be heard in public, instead resorted to large cash settlements, accepting no culpability for what happened to the men.  The latest, a massive payout to Sami al-Saadi, one of the two men sent back to Gaddafi's holiday camps, was for £2.2 million.

An obvious solution to this unpleasantness would be, you would have thought, to not get involved in illegal conspiracies where "terrorist suspects" are flown to various black sites around the world, or as the rendition programme has since ceased, to not actively conspire with authoritarian states over the detention of opposition figures, regardless of the business interests involved.  This doesn't mean not working with states that we regard as having poor records on human rights whatsoever, when such relationships are vital to protecting our own citizens and interests, rather it means just not helping them with the things that our own courts would reject.

But no.  No, what we need instead to placate both foreign intelligence agencies and to protect our sources on the ground is closed material procedures in civil cases, similar to the current Special Immigration Appeals Commission process, where claimants (or defendants, in SIAC's case) are represented by special advocates who can only give a "gist" of the evidence against their clients to them.  Passed yesterday in parliament, the system will allow justice to be done, the claimants either vindicated or the intelligence agencies cleared of wrongdoing, the taxpayer no longer giving money to suspected terrorists to fund future missions, as Ken Clarke implied at one point, and our allies who have threatened to stop sharing intelligence due to a supposed breach of the "control" principle will be satisfied.

As Henry Porter (as an aside, it's worth noting the lack of outrage from the vast majority of those who condemned ZaNuLiarBore for their constant attacks on civil liberties this time round) and Richard Norton-Taylor have pointed out, these arguments might carry more weight if we didn't know all too well this part of the Justice and Security Bill only exists because of lobbying from the intelligence agencies.  The fact is that the courts were getting far too close to the truth: that despite all of the claims to the contrary, the security services are still involved in practices that are either incompatible with basic human rights or which rather than making us more safe, do the exact opposite.  While the Guantanamo detainees all decided to settle, as has al-Saadi since, it's more than possible that someone would emerge who had suffered either at their hands or indirectly who wouldn't, and would take the case all the way.  The seven paragraphs were enough to get ministers hyperventilating; some of the material contained in the documentation of the war on terror could be enough to alter the perception of the security services for a generation.

The row over the control principle was always secondary to this.  The Americans may well have been angered by the release of the seven paragraphs, but they were only ever released by our courts because the American courts had already let even more damning evidence on the treatment of Binyam Mohamed out into the public domain.  In any case, as David Davis pointed out during the debate, the Americans are more than willing to let intelligence out when it shows them in a good light, and to say their own levels of security were previously wanting considering Bradley Manning and Wikileaks is an understatement.  While it's certainly true that SIAC does not always find in the government's favour, as demonstrated in how Abu Qatada has been granted bail and in Ekaterina Zatuliveter's successful appeal against deportation as a spy, unless there are absolutely exceptional reasons justice must be open, and seen to be open.  Closed material procedures were designed to protect the blushes of the security services, and the amendments to the legislation haven't done anything to change this.

No surprise then that Jack Straw himself stood up in the Commons yesterday and argued against his own party.  Not for him a quiet life while the allegations against him continue to be investigated, and as the civil case from Mr Belhaj remains unresolved (Straw didn't take the opportunity to respond to Belhaj's offer of a settlement for a token sum and an apology), this was a case which required his expertise.  Never mind that it's that exact expertise which has seemingly led to the need for this bill, for as Straw reminded us, it's not scaremongering to say that to carry on in the position we are in is the equivalent of abandoning the intelligence agencies, and with it their ability to protect us.  Just as Straw once said it was a conspiracy theory there was any such thing as a rendition programme, so it would be deeply unwise to regard him as discredited now.

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