28 March 2012
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G8 pushing
for “preparatory” terrorist offences, secret trials
and secret evidence
Increasingly
seeing major decisions on the “war on terrorism” being
taken outside of democratic structures in secret international
fora and then handed down to the EU and national parliaments
as a "done deal.”
It has emerged that proposals by the UK Home Secretary, David Blunkett, to introduce sweeping changes to the way that “suspected” terrorists are treated originated not in the Home Office but in G8 - the intergovernmental group comprised of the USA, Canada, UK, France, Germany, Italy, Japan and Russia. Blunkett sidelined the proposals after admitting that he was “surprised by the ferocity of the response” (26.2.04). However in G8 the ideas are well advanced.
Blunkett announced the proposals on 1 February while in India. He said that where "suspected" terrorists were concerned the government wanted to take pre-emptive action by lowering the standard of proof so that suspects could be charged before mounting an attack and tried in secret (in camera) by a vetted judge. Evidence would be kept secret from the defendants so as to protect the sources of MI5, MI6 and GCHQ or from a third state like the USA - this would also entail "special advocates", state-vetted defence lawyers who could be trusted not to pass on intelligence information.
As the evidence presented would come from intelligence and security sources he said that:
It needs to be presented in a way that does not allow disclosure by any of the parties involved, which would destroy your security services. It is about the threshold of evidence and the nature of those involved being accredited and trusted not to reveal sources
So the government wanted to look at the "evidential base and the threshold of evidence". The level of proof he argued could be lowered from "beyond reasonable doubt" to the "balance of probabilities". He said he intended to publish his proposals in an options paper on anti-terrorist laws.
An "affront to the rule of law"
The reaction to the proposals was immediate. Baroness Helena Kennedy QC said they were "an affront to the rule of law" and that "he really is a shameless authoritarian". Louise Christian, a lawyer representing a number of those held in Guantanamo Bay, said: "I don't think he is fit to be Home Secretary". Newspaper editorials weighed in against Blunkett's proposals, a Guardian editorial called it an "Affront to the rule of law" and ended by saying that by refusing to "seek a balance between public safety and the rule of law, he loses all sympathy".
On 7 February six of the leading lawyers in the country – Nick Blake QC, Andrew Nicol QC, Manjit Singh QC, Ian Macdonald QC, Rick Scannell and Tom de la Mare – wrote an “open letter” condemning the proposals which:
would contradict three cardinal principles of criminal justice: a public trial by an impartial judge and jury of one’s peers, proof of guilt beyond reasonable doubt, and a right to know, comment on and respond to the case being made against the accused
Top legal figures added their views, on 10 February the Director of Public Prosecutions, Ken Macdonald QC, cast doubt on the idea of lowering the standard of proof. On the same day the Prime Minister, Tony Blair, hinted that the standard of proof might also be lowered to confiscate assets of organised criminals. Professor Graham Zellick, Chairman of the Criminal Cases Review Commission (CCRC) said:
It would involve throwing out centuries of principle, not just tradition. Just cast your minds back a few years to the wrongful convictions and miscarriages of justice that led to the CCRC being created. And they were convictions secured with the requirement of proof beyond reasonable doubt (16.2.04)
In the event the promised "options paper" did not include any of these proposals and the whole episode was put down to "kiteflying" by the Home Secretary to see how the ideas would be received.
Blunkett’s “authoritarian” proposals emanated from discussions in secret fora
However, it appears that the origin of these proposals come from a much higher source, the working parties of G8 where Home Office, MI5 and MI6 officials are key players (alongside the USA) in its working groups (see note below). Blunkett would have been briefed on the “state of play” of current discussions. On 23 February this year there was a EU-US high-level officials meeting on justice and home affairs under the “New Transatlantic Agenda” held in Dublin. The Irish Presidency Chair of the Article 36 Committee, assisted by officials met with their US counterparts. The meeting was: “EU-US Troika JHA Informal/SCIFA Informal” – “Troika” (Troika refers to past, present and next EU presidency). The report on the meeting is peppered with references to on-going work in G8 (of which neither Ireland nor the next EU Presidency, Netherlands, are members).
At the meeting the US took the lead on the topic of: “Terrorism prevention measures” and “expressed three concerns regarding [EU Member] States’ abilities to fight terrorism”. The first and third “concerns” are directly related to Blunkett’s proposals:
The first concern was that states' legal systems should allow their law enforcement authorities to take action against preparatory acts for terrorism at a stage where no terrorist acts had been committed.
This is exactly what Blunkett was proposing – with all the consequent changes to due process, for example, lowering standards of proof.
The third and probably most difficult issue which was raised by the US was how to share intelligence information related to terrorism for use in a criminal proceeding in another country, while ensuring that the intelligence would be protected.
This question is two-pronged: (1) have states the legal ability to protect intelligence information, and (2) how can the (prosecutorial) authorities of a state be informed of the fact that another state holds intelligence information which is relevant to the terrorist case that is being prosecuted. The US clearly signalled that it was seeking to cooperate with the EU and its Member States on this issue. As a first step it suggested drawing up a document that would collate information from the US and the Member States, which would lay out to what extent and how states can protect intelligence information received from another country. The G8 had already started work on this by way of a questionnaire that had been sent out to and replied by all G8 members. The US suggested that the EU might consider following up on this questionnaire in relation to use of intelligence information.
Again, this is exactly the issue raised by Blunkett which would require vetted lawyers, denial of access to intelligence “evidence” to the defendant, and closed (in camera court proceedings). Although the UK was not represented at the Dublin meeting Home Office, police, MI5 and MI6 officials were at the earlier key meetings in G8 in the Roma and Lyon groups. These officials, together with their counterparts from three other EU states (France, Germany and Italy), had by the time of the meeting on 23 February already agreed on the “concerns”, sent out a questionnaire and received replies from “all G8 members” (including from the UK).
The proposals put forward by Blunkett on 1 February and withdrawn on 26 February are not going to disappear. By the time of the meeting on 23 February the plans were well advanced and the USA was lobbying the EU to back them. Increasingly seeing major decisions on the “war on terrorism” being taken outside of democratic structures in secret international fora and then handed down to the EU and national parliaments as a done deal.
Four G8 members already interning people
In fact, four of the G8 countries have already introduced some form of "pre-emptive" detention or internment in terrorist cases. In the UK the Anti-terrorism, Crime and Security Act 2001 has allowed the indefinite detention of foreign nationals on the basis of secret evidence from the intelligence services. To the United States and quite apart from the hundreds detained in Guantanamo Bay, Baghram Airbase, Diego Garcia and its temporary prisons in Iraq, the US government has also taken the position that its citizens can be designated as “enemy combatants” and detained within the US indefinitely without charges or counsel (see CCR brief below). In Canada, at least six people have been detained under the "Security Certificate" system which allows a person to be detained without charge on the basis of secret evidence from the Canadian Security Intelligence Service (CSIS). Arbitrary detention is also part of Russia's brutal repression of the Chechen people.
Solicitor Gareth Pierce, who worked to uncover many of the miscarriages of justice in the policing of Irish republican terrorism, and represents some of the men detained under ATSA in the UK, believes that we are witnessing a covert experiment in injustice:
We should not be deceived. What is happening in Guantanamo; what is happening in the secret hearings with foreign nationals already taking place in this country; and what is proposed for the future, is in the nature of an ongoing experiment. This is the pooling of access to internationally condemned methods of investigation. Since their utilisation will be covert, the overt experiment is into how willing the public of this country and those concerned in the passage of legislation are to allow basic safeguards to be jettisoned without protest. The lack of protest over the imprisonment of innocent men and women in 1974 is a badge of shame for this country. The confidence with which this home secretary can express so unchecked an appetite for further powers that violate every international minimum norm is in itself a further badge of shame that hardly needs legislation to compound it. For this time, unlike those convicted in 1974, the men and women detained or convicted now will never have the possibility of knowing, let alone undoing, the false testimony that has buried them alive.
Sources
1. EU: "New Transatlantic Agenda. EU-US meeting on Justice
and Home Affairs. Dublin, 23 February 2004": 6862/04
2. UK: "Take no comfort in this warm blanket of
security: Terrorism is being used to justify a retreat from legal
principle", Helena
Kennedy, The Guardian, 15.3.04.
3. UK: "This covert experiment in injustice: Blunkett's
proposals for secret trials will shame the country", Gareth
Pierce, The Guardian, 4.2.04
4. US: Centre for Constitutional rights amicus brief on behalf
of Yaser Esam Hamdi: CCR
brief, October 2002
5. Canada: "Use of Security Certificates", Amnesty
International Canada: AI
Canada, May 2003
6. Russia: "Welcome to Hell": Arbitrary Detention,
Torture, and Extortion in Chechnya: Human
Rights Watch report, October 2000
Note
The key G8 working groups are: the Roma Group (intelligence and internal security officials, known as the Counter Terrorism Experts Group), the Lyons Group (law enforcement officials dealing with organised crime set up in June 1996) and the judicial cooperation group (there are others on immigration etc). The next G8 meeting is on Sea Island, Georgia, USA on 8-10 June and this may be preceded by a G8 Justice and Interior Ministers meeting in May.
This article was first published in Statewatch bulletin vol 14, no 1: subscribe
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