Secrecy Loses Again in the U.K.

This week Binyam Mohamed moved another step closer to a public reckoning for his ordeal when a British appeals court ruled the government cannot rely on secret evidence to defend itself in a damages suit brought by Mohamed and five other U.K.-based former Guantánamo detainees.

Bisher Al Rawi , Jamil El Banna, Richard Belmar, Omar Deghayes, Martin Mubanga, and Binyam Mohamed are suing the British secret services and the Foreign and Home Offices for complicity with the U.S. in their detention, rendition, and torture. As the case moved toward trial, the defendants told the court that they had "as many as 250,000 potentially relevant documents," some 140,000 of which they would likely try to shield from public release on national security grounds. They asked that they be allowed to present these documents in secret to the court without ever sharing them with the six men and their attorneys, and that the trial itself include secret proceedings which they would likewise be barred from attending. Under the government's proposal,

[D]uring the period prior to trial, there would be parallel open and closed pleadings, parallel open and closed disclosure and inspection, parallel open and closed witness statements, and parallel open and closed directions hearings. Similarly, at the trial, the hearing would be in part open and in part closed, no doubt with some documents and witnesses being seen and heard in the open hearing and others in the closed hearing (and some witnesses conceivably giving evidence at both hearings). After trial, there would be a closed judgment and an open judgment…

When the presiding judge approved the British government's proposal, Binyam Mohamed and his co-plaintiffs appealed, and this week an appeals court reversed the lower court's decision , ruling "firmly and unambiguously" that the lower court had no authority to institute such a procedure.

Under the common law, a trial is conducted on the basis that each party and his lawyer sees and hears all the evidence and all the argument seen and heard by the court. This principle is an aspect of the cardinal requirement that the trial process must be fair, and must be seen as fair; it is inherent in one of the two fundamental rules of natural justice, the right to be heard (or audi alterem partem, the other rule being the rule against bias or nemo iudex in causa sua).

The Lord Justices pointed out that there was a well-established process for dealing with government requests to withhold documents on national security grounds: judges must weigh the public interest which demands that the evidence be withheld against the public interest in open justice, and if "the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted."

In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by the court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial.

Moreover, Lord David Neuberger warned, failing to adhere to this minimum requirement would ultimately undermine any advantage the government might gain by pursuing such a strategy.

While considering practical considerations, it is helpful to stand back and consider not merely whether justice is being done, but whether justice is being seen to be done. If the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.

So Binyam Mohamed will be able to press his claim that the British government was complicit in his rendition and torture in a presumptively open proceeding.

Meanwhile, we're left marveling at the trove of documents the British government apparently possesses relating to the cases of Mohamed and the five other U.K.-based former Guantánamo detainees with whom he brought this lawsuit. The 260,000 document figure may be a wild overestimation-the British government's argument was partly that if the established procedures are followed, it could take three years just to review the documents to decide which it will seek to withhold on national security grounds-but it is very clear from this skirmish that there are mountains of documents left to uncover about the treatment of U.S. detainees...including an astonishing number that are in the hands of foreign governments.

 

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