March 14, 2012 / by emptywheel


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.


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