Secret Justice Lies and the MI5 furtive briefings

Furtive briefings by MI5 and the Government’s BIG LIE over secret justice

By David Rose
PUBLISHED: 23:31, 17 March 2012 | UPDATED: 23:32, 17 March 2012

Spies lie. It’s part of their job description. But while deceit may sometimes be the only way to protect the country from terrorists or hostile foreign powers, it is not an acceptable basis for jettisoning ancient, common-law principles of British justice.

However, this is exactly what is happening. Parliament is to be asked to pass an Act that would tear up rules of natural justice dating from Magna Carta and beyond – on the basis of an argument which is, to put it mildly, questionable.

According to Justice Secretary Ken Clarke and MI5 Director General Jonathan Evans, unless the draconian measures become law, UK national security will be jeopardised.

They are arguing in furtive meetings with senior politicians that Ministers require sweeping new powers to conceal ‘sensitive’ information from open courts and inquests if they considered that disclosure would cause ‘damage to the public interest’.

But often the Minister making that decision would be heading the department being sued. He would thus be breaching the ancient principle that ‘no one shall be a judge in their own cause’.

In such cases, the Minister would order a secret hearing at which the sensitive evidence would be produced, but – in a further breach of natural rules of justice – not open to meaningful challenge.

The Government’s opponent would never get to know the case against them. Their interests could be represented only by a vetted ‘special advocate,’ who would be forbidden from speaking to the client. Even the details of the court’s judgment would stay secret.

The central argument in favour of such measures – heavily stressed in a series of briefings to senior politicians, including Shadow Cabinet members – is certainly compelling.

Proponents of the changes, first revealed by The Mail on Sunday in January, claim that thanks to the case of former Guantanamo Bay prisoner Binyam Mohamed – whose abuse at American hands was aired in the Court Of Appeal – US intelligence agencies have become reluctant to share vital information with their UK counterparts, so endangering British lives.

But that premise is bogus.

‘I just don’t know why your government is using this as an excuse,’ a senior former US intelligence officer with direct knowledge of the case told me. ‘I don’t remember Binyam causing even a ripple, let alone a rupture.

‘If your Government wants this law, that’s its business, but to say it has anything to do with us is nonsense. I’m disappointed. I thought you were better than that.’

I also approached a US government official, authorised to speak to the press on intelligence matters, asking: ‘Has there been a serious deterioration in the relationship between the CIA and its sister agencies in Britain as a result of the Binyam case?’

HIS reply, which came after careful consultation with his colleagues, was: ‘There has been no deterioration in the relationship, which remains as strong as ever on a wide range of issues.’

In a sense, the furtive way in which the Government and MI5 have been lobbying support is a foretaste of what courts and inquests would be like if they are enacted.

The briefings Mr Clarke, Mr Evans and other officials have been giving to key figures in both Houses of Parliament have been on ‘Privy Council terms’ – off-the-record, and officially deniable.

They haven’t produced any actual cases where the existing system of public interest immunity certificates are too weak. Under this regime, Ministers can issue orders granting wide-ranging powers to withhold evidence on national security grounds – but subject to the scrutiny of a judge.

Nor have advocates of the proposed measures – set to be put forward in May’s Queen’s Speech – been able to demonstrate any concrete examples of how the flow of intelligence from America has dried up.

But the mere assertion, whispered so silkily by the plausible Mr Evans, is hard to rebut, especially by politicians who, understandably enough, are fearful of being blamed in the event of some future terrorist attack.

It is time for a reality check. First, it should be remembered that the Binyam case was exceptional.

The British court released only the US information – not actual CIA papers, but only a short, bland summary of them – after it had already emerged in court in America. Moreover, in doing so it took the rare step of reopening and reversing its own, original decision.

THE Binyam case remains the only one in legal history where such a disclosure has been made, and it is hard to see how such circumstances could be repeated. Second, the US-UK intelligence relationship has always had its ups and downs.

‘I can remember several occasions, long before Binyam, when we discovered the Americans had withheld information we considered important,’ said a former senior British spy.

‘Their attitude was, “We’re the superpower, so deal with it.” There was a certain arrogance. Let’s not be naive. They have never told us everything.’

‘It’s always been a quid pro quo,’ added David Davis, the Tory MP. ‘They don’t give us stuff as an act of charity. They also depend on us in certain critical areas where our sources and expertise are better than theirs.’

So if the supposed breakdown of this relationship is not the real reason for MI5’s enthusiasm for recasting the British legal system, what is?

It is quite clear that Guantanamo cases are central to their logic.

But the really damaging thing for MI5 is not that these cases ended with a tiny and harmless disclosure of US intelligence, but that they required MI5 officers to give evidence and to be cross-examined about their alleged complicity in torture and ‘extraordinary rendition’, so exposing them to possible prosecution.

They also required MI5 to disclose documents – not American, but British ones – that pointed to the UK agency’s connivance in such illegal acts.If the Green Paper proposals become law, such truths will never come out again. In future, cover-ups will work.

The politicians invited in to listen to Mr Evans’s weasel words might care to remember that.

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