UK Supreme Court bars 'secret evidence' in Guantanamo trials

[JURIST] The UK Supreme Court [official website] ruled [judgment, PDF] Wednesday that secret service organizations cannot withhold evidence from opposing parties nor conduct closed trials. The appellants, secret service organizations including MI5 [official website], appealing a May 2010 ruling [JURIST report], requested the creation of a "closed material procedure," saying the disclosure of their evidence to the appellees, former Guantanamo detainees, would be contrary to the public interest. This procedure would have involved a special advocate being appointed to the plaintiffs in a civil case to impartially consider the defendants' evidence but not reveal any of it to the plaintiffs. The court rejected this idea, citing the public interest immunity (PII) doctrine as more than suitable for classified information as evidence, and that it was not in the judiciary's power to allow or enforce a new doctrine. The PII allows for information to not be disclosed to opposing parties when it would not be in the public's interest.

[T]he right to be confronted by one's accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.
The court did suggest Parliament could create a law to allow "secret evidence" if it chose. The Guardian, an intervening party in the suit for the plaintiffs, was pleased with the decision [report], calling it a victory for open justice.

The initial suit, a civil case brought by British resident and Iraqi citizen Bisher al-Rawi with other Guantanamo detainees, Binyam Mohamed, Jamil el-Banna, Richard Belmar, Omar Deghayes and Martin Mubanga, was appealed by MI5 and MI6 [official website] after the detainees asserted that the organizations "aided and abetted" their illegal detention. Their claims for recompense were settled [JURIST report] in November by the UK government. Bisher al-Rawi was released [JURIST report] in April 2007 from the US military prison at Guantanamo Bay [JURIST news archive] after nearly five years in custody as an enemy combatant. Al-Rawi was originally suspected of ties to al Qaeda because of his alleged connection with radical Muslim cleric Abu Qatada [BBC profile]. He was arrested returning to the UK from Gambia with a suspicious electronic device, which they claimed was a battery charger, and were taken into US custody.

 

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