While Celebrating “Special Relationship,” Cameron’s Government Pushes for Secret Law

David Cameron is in town.

Which means, amid much pomp and circumstance (and jokes about the Brits burning DC in 1812), the leader of Britain and the leader of the US will reaffirm the “special relationship.”

Meanwhile, across the pond, Cameron’s Justice Secretary Kenneth Clarke is pushing to expand “closed material proceedings”–a system of secret trials–to civil trials involving national security information.

Effectively, he proposes to use secret hearings with separate lawyers in cases like those of Binyam Mohamed, so rather than settling with a man who had been tortured with British complicity, they can introduce hearsay in their effort to win the case.

And, of course, they’re proposing to do this because the US has threatened–but not acted on threats–to withhold intelligence from the UK because they let it be known that Mohamed was tortured at the hands of the Americans.

The lawyers who have worked CMPs in the past released a scathing indictment of the idea, noting that it sacrifices the foundations of British justice.

Closed material procedures (CMPs) represent a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own. They also undermine the principle that public justice should be dispensed in public.


Contrary to the premise underlying the Green Paper, the contexts in which CMPs are already used have not proved that they are “capable of delivering procedural fairness”. The use of SAs may attenuate the procedural unfairness entailed by CMPs to a limited extent, but even with the involvement of SAs, CMPs remain fundamentally unfair. That is so even in those contexts where Article 6 of the ECHR requires open disclosure of some (but not all) of the closed case and/or evidence.

It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas – such as deportation appeals and control order proceedings. It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.

The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the Green Paper and, in our view, none exists.

I hoped when the British courts granted Yunus Rahmatullah’s habeas petition, that the Brits might remind us of all the good law they gave us. Sadly, rather than releasing Rahmatullah, the US has stalled.

It appears, then, that things are going in the wrong direction: because we refuse any accountability for the torture and other abuses committed in the name of counterterrorism, we’re trying to corrode not just our own legal system, but Britain’s as well.

Welcome to America, David Cameron. Let’s hope you remind Obama that one “special” part of our common heritage is the system of law we seem so intent on dismantling.


8 replies
  1. MadDog says:

    “…because the US has threatened–but not acted on threats–to withhold intelligence from the UK…”

    I wonder if the US spigot did get turned off. At least a bit. And I guess we’ll never know unless somebody here spills the beans.

  2. MadDog says:

    OT – Via the AP, I suspect more details will eventually leak out, but for now it appears there is more video:

    Source: US Afghan killings suspect flown to Kuwait

    “…The soldier was caught on U.S. surveillance video that showed him walking up to his base, laying down his weapon and raising his arms in surrender, according to an Afghan official who viewed the footage.

    The official said Wednesday there were also two to three hours of video footage covering the time of the attack that Afghan investigators are trying to get from the U.S. military. He spoke on condition of anonymity because of the sensitivity of the issue.

    U.S. authorities showed their Afghan counterparts the video of the surrender to prove that only one perpetrator was involved in the shootings, the official said…”

    And I still want to know who was watching/supposed to be watching real-time, and what did they do or not do about it.

  3. MadDog says:

    @MadDog: And more from McClatchy:

    Pentagon officials: ‘No smoking gun’ in Afghan rampage

    “As the Army staff sergeant suspected of killing 16 civilians was flown out of Afghanistan, two military officials told McClatchy on Wednesday that investigators combing his medical records had found “no smoking gun” to explain the rampage…


    …Dr. Elspeth Cameron Ritchie, formerly a behavioral health director in the surgeon general’s office, didn’t know the intimate details of the case but speculated that the suspect’s actions were inconsistent with post-traumatic stress disorder or traumatic brain injury.

    “His reported behavior was more in line with a psychotic episode,” Ritchie said…”

    I’ve been wondering about this. If it wasn’t some type of psychotic episode, then another alternative is even more scary. Did this US soldier do something similar (killing civilians) during his 3 tours in Iraq, and did it get missed?

  4. BearCountry says:

    One person surrendering doesn’t prove that only one person was involved. The tape needs to be studied a little more closely, and the Afghans need to be believed and treated accordingly.

  5. Bob Schacht says:

    “No smoking gun”??? What do you call head trauma??? What do you call 4 tours of duty, with the time he was supposed to have off spent training for his next deployment? They treated him like cannon fodder, and when he cracked, they say no smoking gun? These jokers ought to be given dishonorable discharges immediately.

    Bob in AZ

  6. earlofhuntingdon says:

    Cameron, like Blair, is of a mind with Obama about the executive’s prerogative, nay, duty, to flout the law when his personal and political fortunes are at risk. Like his two predecessors in the UK, Cameron is no friend to his country’s heritage or its laws.

    In fact, Cameron is out in front of Obama in seeking to reduce them to a matter of executive whim. As Orwell would wryly comment, a secret trial is no trial at all. It is detention by executive fiat; the appearance of a trial, the use of the term along with a handful of the paraphernalia commonly associated with it, but without the substance, is a pale smokescreen. It hides nothing, including Mr. Cameron’s arrogance.

  7. sona says:

    the only bits of that runnymeade charter that had survived were the rights to habeas corpus and trial by a jury of peers and the west, in its juvenile paranoia wants to revert to the ante renaissance/emancipation/philosophe middle ages
    i still hold out a hope that the judiciary will find it in contravention of the eu human rights convention that the uk is a signatory to and would declare it unconstitutional but i’m not holding my breath – one shouldn’t with the clegg gang

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