Search This Blog

Wednesday, 11 May 2016

“Shhhh… Secrets”

‘It’s ‘life’, Jack, but not life as you want to serve it’

My inner lodestar shuddered recently, when a secret matter, a dark matter of considerable gravity, affected the scales of UK justice, weighting them against the unjustly treated. 

‘Secret justice’ does not allow justice to be seen to be done, and therefore does not allow us to know whether justice has in fact been done. Unless, as in this case, we know as a matter of record that international criminal injustices certainly were done - and we basically know who did them, and how, and much of it from London.

So, we know that the perps are still out there, scottie free, relying on a cover-up of serious criminal activity that really, really, needs a trial by jury. If a jury convicts, then a maximum penalty of ‘life’ imprisonment may be awarded. That’s a big incentive to perp-block a trial.

Join me as I shine a light on the dark shadow it has all cast over our island universe. 

["Shhh/ Peaceful" (18 mins), from "Miles Davis - In A Silent Way"... a CD or vinyl is best!]

Civil claim against Home Office, Foreign Office, MI5, MI6, Jack Straw, Sir Mark Allen

Recently, in a somewhat science-faction case in London, in the other-worldly High Court, judges set their phasers to stun, and floored five aliens who had come seeking peace through justice. The aliens' complaint was against the Home Office, Foreign Office, MI5 and MI6. The aliens' message was that over ten years ago the UK government had decided to beam them over to Gaddafi’s Libya for political imprisonment and torture, and roughed them up a bit beforehand - technically, a complaint about false imprisonment, blackmail, misfeasance in public office, and conspiracy to assault.

The High Court judges threw their case out of court. 

The reason for the jettison? 

At warped-justice speed, it had taken ten years for the men and their current lawyers to learn that the core evidence in their cases had already been considered in a bygone era, in secret at a deportation hearing of SIAC (the Special Immigration Appeals Commission) . SIAC decides whether to deport alleged ‘terrorists’ - “alleged” is important here, as the hearing should be decided on fact, not least because the men were about to be deported into the hands of Gaddafi’s head of Libyan intelligence, who conveniently labelled any dissidents as terrorists.

Security-vetted ‘Special Advocates’, appointed to replace the men’s preferred lawyers at SIAC secret hearings, were appointed on the basis that the secrets revealed to them cannot be revealed to their clients or their ordinary lawyers. While officially responsible for the client’s legal interests, a Special Advocate must not reveal anything beyond the ‘gist’ of the process to the client. Because otherwise how could it all remain secret, lawful, indeed justice as defined by the law that established this secret justice system?

Given that the above secret matters had already been considered by the earlier SIAC tribunal, albeit in secret, the men’s High Court claim was struck out, as already effectively considered via secret evidence that would remain secret. 

And so in 2016 the five aliens, now free of planet Gaddafi and expecting justice in the land of Magna Carta, instead were cast adrift by the High Court. 

The overall impact remains to be seen, since the case goes wider. The original High Court claim involved twelve claimants, bringing a number of claims: six Libyan men, the widow of a seventh, and five British citizens of Libyan and Somali origin. Their claims concern allegations of false imprisonment, blackmail, misfeasance in public office and conspiracy to assault. The claims are against MI5 and MI6, the Home Office, the Foreign Office, Jack Straw (Foreign Secretary at the time), and Sir Mark Allen (formerly of MI6). 

My Secret Thoughts

I think of it this way… Secret evidence (including evidence obtained criminally under brutal secret torture by Libyan interrogators acting by secret Memorandum of Understanding with MI5 and MI6) was heard in secret at SIAC because the government lawyers argued that the evidence should be acted upon in secrecy, for reasons requiring secrecy. After secret deliberation of the now officially secret evidence, SIAC decided in favour of the government, and in hand with the Special Advocates proceeded to keep the content of the secret deliberations a secret from the clients and their lawyers, and, of course, from other courts and the general public, and certainly from the Metropolitan Police. 

In this way, the clients’ fates were sealed, in a very bad way, even criminally so, albeit done in accordance with the law governing SIAC hearings. The classification as ‘secret’ carried over to otherwise public hearings, so that by the beginning of 2016 the High Court itself had to go into secret session to discuss it, and came out having decided that its hands and tongues were effectively tied by the earlier secrecy decision.

Where the evidence presented to SIAC was extracted under torture, it is therefore a crime internationally, and normally inadmissible in the UK. Although also potentially unreliable factually, there was no adequate procedure or resourcing for the Special Advocates to mount a serious challenge to the origins, content or quality of the evidence, on behalf of their clients.

It does not seem to have mattered that SIAC was acting upon information obtained under torture, from prisoners returned to Libya with the connivance of MI6, partly in order to provide information under torture that could be used against the UK residents, for example at a SIAC secret hearing. Neither does it seem to have mattered that such evidence was tabled at SIAC as a basis for MI5 arranging deportation of UK residents to Libya, where they in turn would be tortured.

Now out of their Libyan black holes the men are seeking justice. It was the least the High Court could do to acknowledged the men’s right to bring their case, since they and their ordinary lawyers could not have known what happened at the earlier hearings. It is not enough.

Magna Carta, read in its original Latin, would be less opaque. But then, neither Magna Carta nor its progeny were relied on here. ‘Summum jus summa injuria', you might think (i.e. ’extreme law is extreme injury’ : extreme law, untempered by equity, is not justice but the denial of it).

UK-Libya joint intelligence operations

The High Court in 2016 revealed that the earlier SIAC tribunal had been told of joint MI5-Libya intelligence operations, that resulted in several of the men being deported from the UK to Libya. Two other men (Abdul Hakim Belhadj and Sami al-Saadi) and their families were abducted for ‘extraordinary rendition’ to Libyan prison cells, from outside Europe via the UK stopover facility of Diego Garcia, thanks to joint MI6-Libyan intelligence cooperation, and CIA operational input. 

SIAC had heard how the Blair government began mending fences with the Gaddafi regime from 1999. Inter-state relations originally were fractured by the still-unsolved shooting of PC Yvonne Fletcher from a window of the Libyan Embassy in London, on 17 April 1984. The 1988 downing of Pan AM flight 103 over Lockerbie put Gaddafi’s Libya beyond the pale. 

This warming of government relations from 1999, peaking with Blair’s meeting with Gaddafi on 24 March 2004, included cordial joint operations of MI5 with Libyan intelligence in the UK, targeting dissidents peacefully resident here. The joint operations allegedly were unlawful, if not seriously criminal.

After the fall of Gaddafi in 2011, files recovered from the archives of the Libyan intelligence service incriminated a senior MI6 staffer, Mark Allen, in co-organising international criminal acts of abduction, torture and enforced ‘disappearance’ of two families of Gaddafi dissidents (aka ‘extraordinary rendition’). They had been abducted and returned to Libya in 2004 - one family in the lead up to, and the other in the immediate aftermath of, Tony Blair’s infamous ‘deal in the desert’ handshake with Gaddafi in a tent outside Tripoli. 

The families included the two male dissidents, their wives (one of them six-months pregnant), and four children aged 6 to 12 years. The males spent up to six years in brutal detention, until the fall of Gaddafi. The females and children spent less time in detention, but life outside prison was no picnic for them either. They were under ongoing surveillance, in danger of further maltreatment, and invariably discriminated against administratively and economically.

The files also contained an October 2002 Memorandum of Understanding, detailing a two-day meeting in Tripoli between Libyan intelligence, two named senior MI6 staff and one MI5 officer. The memo outlines their joint plans for "intelligence exchange, counter terrorism and mutual co-operation".

Prosecutions of individuals from MI5, MI6, Home Office, Foreign Office?

Still, in 2016 the victims cling on to hope. The Crown Prosecution Service, in the matter of a separate but related hearing about the criminal enterprise, may yet beam up the captains of government and their spoocks to the criminal court, for a very public prosecution (unless they can swing a secret one, or swing impunity altogether).

The treatment of the victims in the UK arguably amounted to torture or coercive threats to torture, within the jurisdiction of the English courts, by way of s.134 of the 1988 Criminal Justice Act (that defines torture and establishes a maximum penalty of 'life' imprisonment for anyone involved). It was certainly coercive, it certainly contained threats and other inducements, and it certainly appears to have resulted in some cases of torture.

The treatment of the Belhadj and Saadi family members, subjected to ‘extraordinary rendition’ while travelling internationally by public airline, certainly amounted to criminal abduction, political imprisonment, torture and enforced ‘disappearance’. All are crimes against humanity under UK and international criminal law.

The Metropolitan Police is reported to have handed over their investigation files to the CPS in the autumn of 2014. The CPS is reported to be under political pressure to drop the case. Perverting the course of justice can be achieved in a number of ways. One way is for state institutions and suspects not to hand evidence over, for example preferring to destroy or misplace it. Or to mount a long-running case of immunity through the courts ahead of any trial, and again possibly in secret sessions.

There is no immunity ‘de jure’ from a s.134 prosecution, even for MI5 or MI6 staff, although ‘superior orders’ is likely to be argued in some format by all except the Cabinet Minister involved. Extra-legal ‘de facto’ impunity from prosecution may have been organised in case a legal defence is untenable, but even this could collapse under challenge. More likely is an attempt at impunity through ‘James Bond immunity’.

‘James Bond immunity’ is the fall-back immunity defence very likely to be argued through Section 7 of the 1994 Intelligence Services Act, (the “James Bond clause”). Section 7 is meant to protect MI6 officers from prosecution for actions otherwise illegal, so long as those actions were authorised in writing by the Foreign Secretary. The protection covers civil claims as well as criminal prosecutions.

aut dedere aut judicare, capture, or ICC transfer

One weakness in the suspects’ strategy is that failure of the UK authorities to prosecute could lead to any or all of the accused being arrested as soon as they leave UK shores, by any other state party to the UN Convention Against Torture. In establishing jurisdiction for an arrest, these countries are likely to reject any immunity arguments, just as they may reject an 'amnesty law' under given circumstances. Even if named suspects do not leave the UK, other countries may use established judicial cooperation treaties to request their extradition for overseas trial, unless a UK trial is being set in motion - the principle of 'aut dedere aut judicare' ('either transfer, or put on trial').

The UK has signed up to the jurisdiction of the International Criminal Court in The Hague. This means that states interested in extradition or capture may be trumped by the Prosecutor at the ICC mounting an investigation, and ordering the immediate arrest and transfer of the accused for trial in The Hague. 

By the principle of ‘double jeopardy’, neither another country nor the ICC may try a case that has been tried already in a national court. However, they may attempt to do so if it is clear that the first trial was not a true or adequate hearing, or was simply organised to give the false appearance of a criminal process, in order to rule out the possibility of a trial in the ICC or some other jurisdiction.

Even if the accused accept that there is no immunity from prosecution for (conspiracy to) torture, it is anticipated that some may try other avenues to escape the gravitational pull of a trial date, an extradition warrant or an ICC transfer warrant. With the right knowledge, experience, contacts, it could be worth seeking a sick-bay ‘unfit for trial’ exemption. Some might try claiming that they have no long-term memory of acting badly, said memory having been lost in the space of the intervening ten years. Losing short-term memory to the extent required for exemption from trial is a bit trickier, but possible to pull off with practice, organisation, and a sympathetic or incompetent Cabinet Minister in the right place at the right time. 

The Suspects (aka “Shushshpectsh”)

The Foreign Secretary from 2001-2006, Jack Straw, has always denied wrongdoing. Apparently it’s an open secret now that, after saying publicly that it wasn’t true, and that he had no recollection of authorising such a thing, privately he was shown the official transcript of his telephone authorisation. Maybe, maybe not, to his surprise. That would mean that the offending authorisation is on file, and should be logged in the police file also, with a copy now in the hands of the CPS. 

Jack Straw, to Foreign Affairs Select Committee (13 Dec 2005):

"Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying, that behind this there is some kind of secret state which is in league with some dark forces in the United States, and also let me say, we believe that Secretary Rice is lying, there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop.”

Straw’s position of late is, “At all times I was scrupulous in seeking to carry out my duties in accordance with the law.” This may be a reference to having given what he thought was lawful authorisation, intended also to trigger ‘James Bond immunity’ for MI6. After the Libyan renditions came to light, Straw said: “No foreign secretary can know all the details of what its intelligence agencies are doing at any one time.”

Sir Mark Allen of MI6 (and of BP by six months after the Blair-Gaddafi handshake), whose memo to Gaddafi’s head of security was recovered from the Tripoli archives, has also denied wrongdoing. Of course, rather than actually denying being a malevolent spook, he may simply be saying that he acted with a Section 7 authorisation from the Secretary of State, and therefore is more of a Sir Walter Raleigh buccaneering type. None of this prevents us from speculating as to his actions or motives, or being agog at his speedy transfer to a huge salary with BP by October 2004, possibly to oversee their new Libya contract. I’ll post a photo of the handshake that sealed that deal, if one emerges.

The individual MI5 and MI6 field agents will have to wait-see, weathering the situation until it either blows over or blows up. Allegations that agents actually attended ‘torture sessions’ with questions, the answers to which may have led to the arrest and deportation of UK-based dissidents to more torture, cannot easily be dismissed by the “James Bond clause” any more than by a defence of ‘merely carrying out superior orders’.

Recent Home Secretaries appear to have maintained a wise, dignified, possibly nervous, silence in relation to MI5's alleged criminal activities.

Tony Blair has said he has no recollection at all of these matters. Who’s going to contradict him merely on the basis of his fingerprints being all over Gaddafi when sealing the deal in the desert?


It is ironic that Jack Straw, while he was Home Secretary four years earlier, in March 2000 released Chilean ex-dictator Augusto Pinochet as ‘unfit for trial’ after sixteen months under arrest in London. Pinochet and his agents were accused of abduction, political imprisonment, torture, murder and enforced ‘disappearance’. Part of this was carried out under the auspices of “Operation Condor”, a coordinated programme of ‘extraordinary rendition’ between Chile and several other countries.

Pinochet organised impunity for himself and his agents inside Chile by controlling the law-making, police, public prosecutors, judges, security and intelligence services, etc. It was necessary for the victims and their relatives to organise his London arrest, via the mechanism of an extradition warrant from a Spanish judge.

From the moment of Pinochet’s arrest in London, hundreds of other accused Chileans ceased international travel, as did possibly thousands of people in other countries. Their fear of arrest in a foreign country was realistic, now that it had been shown to be a viable alternative. It remains a viable alternative for Libyan and other victims of recent ‘extraordinary rendition’.

Of course, sectors of UK officialdom would prefer the victims’ claims to be barred from proceeding in court. Instead the crimes would be rendered into mere philosophico-moral debate in the wine bars of the people. Fill your glasses, chaps and chapesses, and discuss: 

“What is wrong with a bit of Cabinet authorised abduction, torture and forced ‘disappearance’ of parents and children, if it underpins long-term UK government interests, and lucrative contracts for Shell, BP, BAE and the likes?” 

Your answers on a postcard, please, addressed to the Director of Public Prosecutions, Crown Prosecution Service, London.

Let's hope the Metropolitan Police and CPS have finally got to the root of the crime, unlike Inspector Clouseau...

No comments: