Secret courts would be a licence to cover up
The British government’s argument for secret courts is flawed in both moral and practical terms – and should be resisted
When American authorities revealed last week that a British agent was central to uncovering the latest Islamist suicide bomb plot, there was uproar. Quite reasonably, a great deal of concern was expressed over the risk posed to the agent, and to similar operations that might be run in the future.
And yet, was it so surprising? Mark Fallon, the deputy commander of the Guantánamo military interrogation team, in the course of warning his staff to stay within the law, said: “In the US there are no secrets, only delayed disclosure.”
He was right. Intelligence and military oversight arrangements in Washington, the power of Congress, the openness of US society, and the frenetic nature of the Washington gossip mill, all mean that few things stay secret for long.
Which brings us directly to a problem for the British government. In the Queen’s speech it announced plans to transform hearings of some civil law cases against the government into, effectively, secret courts. The primary justification for this is that US intelligence agencies would cease to share information with the UK if British courts were allowed to continue disclosing data obtained from American sources.
This argument has been blown out of the water by last week’s disclosures, which demonstrate that the American system leaks far more than the British ever could. This leak happened not in the pursuit of justice but as a casually irresponsible piece of political spin.
It is an argument that has always been based on a series of falsehoods. First it assumes that the Americans had historically held a naive belief that the “control principle” was absolute. This is not so. Rather than listen to the spin of our government agencies, read the evidence, given under oath by Morton Halperin, a foreign policy and security adviser to the Nixon and Clinton governments. “The US government would not expect the UK government to provide greater protection to shared intelligence than provided by the US government itself.”
So the claims of our government agencies are inherently plausible. Nevertheless, those agencies then claimed that the disclosures in the Binyam Mohamed case had already led to a drying up of intelligence from the US agencies.
Put to one side the fact that, as last week’s suicide bomber case demonstrates, the Americans often rely on UK human intelligence as much as we do on their undoubted technical prowess – and so cutting co-operation would hurt them equally. And put to one side that the UK courts released a summary of data after much deliberation, and after American courts had released the same data in much more detail. And also put to one side that the CIA’s European director at the time has said that he “barely noticed” the Binyam revelations.
The real nail in the coffin of the argument is that the CIA’s press officer categorically denied that there had been any worsening of information exchange.
So, in the coming year, the government, at the behest of the intelligence agencies, is going to ask us to introduce a secret procedure into our civil courts for the first time in our history. It will allow the covering up of crimes – such as complicity in torture – that may have been carried out in our name. It is being justified as a way of protecting secrets from a country that makes a virtue of being even more open than we are, and which as a result lets slip more classified data in a day than our courts do in a decade.
It is being argued on the assumption that our allies are naive, and are willing to compromise the fundamental values of our justice system in a war that is supposed to be in defence of those very values. None of these arguments stand, and so this proposal should fall.