Last week, President Trump fired his Secretary of State and replaced him with the current head of the CIA. He nominated Gina Haspel as the new head of the intelligence agency. Ms Haspel has a dark past for which she has yet to be held to account. She oversaw torture at a black site in Thailand in 2002. She drafted an order to destroy videotapes proving US personnel were involved in torture. President Obama’s failure to prosecute anyone for the CIA’s torture programme is one reason why one of its architects is on the cusp of leading America’s top spy agency.
In the UK, we face a torture and rendition accountability crisis of our own. This week the issue of accountability for the UK’s role in rendition comes back into focus. On Thursday, our highest Court will be asked to rule on whether a CPS decision not to prosecute a public official for his role in a rendition operation can be challenged fairly and openly, in a case which has significant implications for our justice system.
Documents uncovered from the vaults of Libyan intelligence in 2011 revealed UK officials were involved in the kidnap of political dissidents and their families and their rendition to Gaddafi’s torture chambers in Libya. One of these families was Abdelhakim Belhaj and Fatima Boudchar, who was heavily pregnant at the time of her abduction and rendition.
In one fax, a senior MI6 official—Sir Mark Allen—congratulated his Libyan counterpart for the “safe arrival” of the couple, whom he degradingly called the “air cargo”. He boasted that the intelligence which led to their rendition was “British”.
The Metropolitan Police conducted a lengthy and comprehensive investigation into Sir Mark’s actions. They collected over 28,000 pages of evidence and recommended Sir Mark be prosecuted for misconduct in public office. But the CPS decided against it, citing insufficient evidence. The couple are not satisfied with the CPS decision and have issued judicial review proceedings to challenge it.
In an unprecedented move, the Government is seeking to have this case heard partly in secret under controversial powers introduced under the Justice and Security Act 2013—which allows for secret court hearings.
Secrecy in court is a serious departure from long-held principles of open justice. It creates an imbalance between the Government and those challenging it. While the Government is allowed to defend itself in private, victims of abuse—like Mr Belhaj and Mrs Boudchar—are barred from scrutinising crucial aspects of the Government’s case. Closed sessions are held where the interests of the victims are represented by security cleared lawyers—called Special Advocates—who are not allowed to speak to their clients. The victims and their legal teams are not allowed in. Neither are the public or the media. Even if justice is being done, it cannot be seen to be done.
This Act provoked significant debate at the time, including in my own party, where many raised prescient concerns about secret courts’ potential for abuse. Campaigners have warned of the damage the Justice and Security Act would cause to our justice system. Reprieve and Liberty cautioned that the Act would allow Government to sweep involvement in abuses “under the carpet.” Special Advocates protested against the use of secret courts, calling them “inherently unfair”.
The Secretary of State tasked with taking the Act through Parliament—Ken Clarke—made clear that the use of such procedures should be strictly limited. Writing in the Daily Mail he said “we are not talking about criminal cases here.” The Act also explicitly states that it does not apply to a “criminal cause or matter”.
Yet the Government’s subsequent use of these powers in Mr Belhaj and Mrs Boudchar’s judicial review indicates a worrying creep of secrecy into our criminal justice system. In December 2017, the High Court sadly agreed with the Government and found it had the power to impose secrecy in the couple’s case.
This is a misinterpretation of the law. Over weeks and months of protracted debate and disagreement over the Act’s terms, Parliament was clear on at least one thing: the Act should not apply in criminal matters. Secrecy risks shielding the State and its officials from accountability. Parliamentarians across the political divide were agreed that this cannot stand in the criminal sphere.
When the Supreme Court considers this important matter on Thursday, it should heed the extensive scrutiny the Act received in Parliament.
It should also bear in mind the consequences of failing to hold to account those who abuse power. In the US, refusing to prosecute torturers means they can now hold the top job at the CIA—risking a return to the abuses of the Blair-Bush years. If we do not reckon with our own past, there is a strong chance we will be dragged into US abuses once again.