Sunday, October 18, 2009

Torture, national security and the rule of law: On a welcome ruling of the UK High Court

On too many occasions since 9/11 have national governments relied on “national security” grounds to hide illegal actions, prevent political embarrassment, or more prosaically, to secure domestic political gains. Politicians should therefore not be surprised that judges are now more willing to double-guess them when they argue, for instance, that some allegedly sensitive material cannot be made public.

In a ruling issued on 16 October, the High Court in London, for the first time, refused to accept the British Foreign Secretary’s argument that the public release of litigious material, sought by the lawyers of a former Guantanamo detainee, would threaten national security (judgment available here). At issue was a previously censored 7-paragraph summary of the Guantanamo detainee’s “treatment” by US authorities made by the CIA and sent to the British Security Services. Reversing their prior holdings, Lord Justice John Thomas and Justice David Lloyd Jones convincingly and reasonably held that the public interest in making the paragraphs public is not only overwhelming but that the risk to national security alleged by the British government is not a serious one:


We consider that, viewed objectively, a decision by a court in the United Kingdom to put the redacted paragraphs into the public domain in the circumstances of this case would not infringe the principle of control over intelligence. The principle admits an exception in the case of court ordered disclosure, which is plainly applicable in the present case for the following reasons:


i)               It is necessary and justifiable:

a)    It was BM’s case that the United Kingdom Government had facilitated or become mixed up in wrongdoing of the United States, alleged to amount to cruel, inhuman or degrading treatment or torture.

e) … the suppression of reports of wrongdoing by officials in circumstances which cannot affect in any way national security is inimical to the rule of law. Championing the rule of law, not subordinating it, is the cornerstone of democracy.


ii)             It is exceptional. …

iii)            As between the United States and the United Kingdom, it is accepted that the court of each State can order there be put into the public domain information otherwise subject to the principle of control. …


In our view, as a court in the United Kingdom, a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.

We have therefore conclude that, as the public interest in making the paragraphs public is overwhelming, and as the risk to national security judged objectively on the evidence is not a serious one, we should restore the redacted paragraphs to our first judgment by addition these to paragraphs 87 and 88 respectively. We shall therefore re-issue our first judgment with the paragraphs restored.”


Unsurprisingly, the British government agreed yesterday to appeal this ruling.


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