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THE SECRET SOCIETY April 25, 2012

Posted by wmmbb in Democracy, Duckspeak, Peace.
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One, among the several reasons, people form societies is to organize the process of justice.

As it happens I was sounding off to a taxi driver about the Breivik trial[1.50] suggesting that so as to shut down his opinions, the idea might take hold to have secret trials, and then I said we might all be lost. This is a two-way process because sometimes taxi drivers sound off to me.

Sometimes, as you might have noticed, my predictions are very wrong. For example I hear rumblings that Julia Gillard might be challenged, which was consistent with my suggestion that this would happen in two to three months, and then I changed my mind since there are no alternatives, which is partly true says something about the Federal Labor Government and its past and current leadership. So much for punditry!

Now it turns out that Britain may be following in the footsteps of the United States, the nation in which the fundamental constitutional law in the guise of the First Amendment can be overturned by a local government ordinance. The British Government has released a green paper, “Justice and Security” which plans to allow English (and presumably Scottish) courts to hold secret hearings. As in Iraq and Afghanistan, where the US and Britain lead, we follow.

Tim Otty’s article was published in Open Democracy. The proposals have their very own Orwellian acronym. Habeas Corpus appears to be a dead letter in the US Constitution, after being carefully and consciously included by the authors who included Common Law lawyers and who knew the history of executive overreach, including “the divine right of kings”.

Tim Otty sets the case:

The Justice and Security Green Paper proposes that a “Closed Material Procedure” (CMP) should be available for the handling of claims against the Intelligence Services of this country (and indeed any other Government defendant). This would allow a trial to be determined by reference to evidence heard in the absence of one party and his lawyers, leading to a reasoned judgment that they will never see. It is said that this will apply even, and perhaps particularly, where the allegations are as grave as can be conceived, relating to complicity by United Kingdom agents in torture and rendition.

Some context: the legacy of 9/11

This proposal is the latest in a long line of extraordinary developments which have taken place at the instigation of democratic Governments in recent times.

On 10 September 2001 it would have been unthinkable that within 5 years the Courts of this country would have heard arguments from Her Majesty’s Government seeking to support the indefinite detention of foreign nationals in peacetime, the admissibility of evidence obtained by torture, or the ability of the Executive itself to make Orders forcing an individual to relocate to a different city, confining him to a designated residence for 18 hours a day (and to a small geographical area in the remaining 6 hours) and prohibiting him from meeting anyone, anywhere, all on grounds of reasonable suspicion, not even the gist of which was to be disclosed to the individual concerned.

And yet all of this occurred between 2001 and 2006 in the wake of the terrorist atrocities of 11 September 2001[ii].

More startling still was the creation, and use, of the Guantanamo Bay detention facility by the United States, and the conduct of United States and United Kingdom forces in Afghanistan and Iraq, as revealed by the scandals of Bagram, Abu Ghraib and Baha Mousa.

In the spring of 2004, three days before CBS broke the story of the Abu Ghraib prisoner abuse scandal, the Deputy Solicitor General of the United States was arguing before the United States Supreme Court in the case of Padilla v Rumsfeld[iii], one of a series of cases to reach the Court concerning Executive detention in the ‘War on Terror’. He contended that there was no need for judicial oversight of such detentions because there was no risk that United States forces would ever engage in cruel treatment: the Executive could be “trusted”.

As he suggests the proposal for secret trials has come up before, and it was rejected by judicial opinion. Tim Otty writes:

The title to these observations refers to the “slow creep of complaceny”. These words featured in Lord Hope’s judgment in one of the cases concerned with control orders, and secret evidence, to be decided by the House of Lords. He said this: “The slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the Court must stand by principle. It must insist that the person affected be told what is alleged against him.”[x]

One of the most disappointing features of the Green Paper, despite judgments of this kind, lies in its failure sufficiently to acknowledge that the proposals it contains run counter to the constitutional safeguards and judicial traditions which this country has developed, and jealously guarded, over many hundreds of years. The proposal for secret hearings to be held at the behest of the Executive, or even pursuant to the exercise of a judicial discretion, is truly extraordinary, and should have been recognised as such. As Lord Shaw put it in another case decided at the beginning of the last century:

In Britain there is the fall back position of appealing to the European Court of Human Rights. It seems to me to be exactly the situation that Julian Assange is destined to face when, in due course, he is extradited from with Britain or Sweden, and the Australian Government will bury its head in the sand, as it has done with the airport interdiction of Jennifer Robinson , declare they knows nothing, and do nothing.

Once upon a time there was an American President who set his face against such proceedings. His was a short-lived presidency, in its own way a warning to others:

As a demonstration of the process of justice in difficult circumstances the trial in Norway takes on great significance. I would expect the defendant to be judged sane. There is no doubt that duress of fear, sometimes manufactured that established democratic societies can lose their moorings.

Restorative Justice must necessarily be open justice. So could this approach to justice be applied to capital crimes, including terrorism?

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