In February 2009, the U.S. government transferred British resident Binyam Mohamed from the U.S. naval base at Guantánamo Bay home to the United Kingdom. A victim of extraordinary rendition, Mohamed had been imprisoned for seven years—held in Pakistan, Morocco and Afghanistan before his transfer to Guantánamo.
After his release, Mohamed took legal action against the British government. He asserted that he had been subjected to cruel, inhuman and degrading treatment during his detention. Other British residents held in Guantánamo, including Bisher al-Rawi, have likewise challenged their prolonged and abusive detention and interrogations.
Their allegations implicated British intelligence in their interrogations and abuse. Mohamed, for instance, asserted that MI5 provided questions to foreign interrogators to facilitate his interrogations. He and other former detainees sought information from the British government regarding British complicity in their alleged torture.
At every turn, British intelligence challenged the efforts of former detainees, and the public, to shine the light on the abuse and British complicity in it. The government even took the extraordinary step of trying to litigate under “closed material procedures” the civil cases challenging the British government for its role in their abuse.
A closed material procedure prevents the public and even the parties and their attorneys from having access to evidence, instead providing sensitive “closed” bundles of evidence only to “special advocates,” and to the court where appropriate. The closed material procedure does not take into account the public interest in disclosure, and information is known to the government lawyers, but not to the plaintiff or the plaintiff's lawyers. The British Parliament has statutorily authorized the closed material procedure in only select categories of cases, and not in most civil cases.
British courts have curtailed efforts by British state intelligence agencies to keep evidence of abuse secret. In July 2011, the UK Supreme Court rejected the use of the closed material procedure for civil litigation brought by the former detainees challenging their abuse. The Supreme Court unanimously ruled that it could not depart from the fundamental rules of a common law trial, including open justice—the public conduct of trials and release of judgments—as well as the right of a litigant to confront witnesses and know the evidence held by the government pertinent to his claims.
Rather than litigate the underlying issue of its complicity in the abuse of the British former Guantánamo detainees, the British government settled these civil cases.
Yet the story is far from over. In October 2011, the Secretary of State for Justice presented to Parliament a Justice and Security Green Paper proposing a significant expansion of the use of the closed material procedure to “whenever necessary in civil proceedings,” as well as of special advocates, and limiting the categories of cases where a party is entitled to even a summary of the main intelligence documents. The British Parliament is currently considering these proposed modifications to limit access to intelligence information in civil proceedings.
These are the wrong messages to draw from the Guantánamo civil cases. Parliament should reject the Secretary of State’s proposals. Expanding the use of closed material procedures would shift the pendulum too far in the direction of secrecy, for alleged victims of abuse and for the public.
In the Supreme Court opinion, Lord Dyson, writing for a majority of the Court’s judges, highlighted the 2010 report by the UK Parliament Joint Committee on Human Rights reviewing the first five years of the operation of the Special Advocates process. In its report, the Committee referenced the notorious Star Chamber—the seventeenth century English court with sessions held in secret and without appeal, and now symbolic of the dangers of a wayward, secretive and illegitimate judicial system unaccountable to the public or the rule of law. The Parliamentary Joint Committee concluded that the use of special advocates “is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them.”
Other limitations on open judicial processes undermine the central role of open judicial review in democratic accountability. This remains true even and especially when national security is involved.
Where should a democratic society draw the line between what may legitimately be kept secret, and what should be open to litigants and the public? Freedom of information advocates, including the Open Society Justice Initiative and other partners, have drawn up the new Draft Principles on National Security and the Right to Information that could help legislative and regulatory drafters set the balance in a transparent and appropriate manner.
These principles provide that certain categories of information are subject to presumptive disclosure, including information concerning treatment and interrogation of detainees, violations of human rights and international humanitarian law, arms sales, and corruption. Further, national security concerns cannot justify undermining the fundamental right of the public to have access to judicial processes, or the rights of victims of torture and other human rights abuses to seek a remedy. A person credibly asserting that the government committed abuse should be entitled to challenge the government in court, and have access to information material to the case. Importantly the public, and not solely the parties, should have the right to contest restrictions to access, with meaningful and transparent judicial oversight.
In its Green Paper, the Secretary of State complains that the settlement of civil cases with former prisoners undermines the reputation of the intelligence services and leaves important questions unanswered. Yet the solution is not greater secrecy but more light.
Litigation has been central to achieving some measure of accountability for national security overreaching, and to public disclosure of information concerning government abuses of power. It is litigation which has begun to uncover the role of the British government in the treatment of detainees at Guantánamo and in a secret web of prisons around the world—and to provide some measure of relief. Allowing litigation to proceed only under a cloak of secrecy does a disservice to the litigants, but also to the public and the rule of law