Teenage rendition victim protests Ken Clarke’s plan for ‘secret court’ hearing of her family’s case

May 29, 2012

A teenager who was rendered at age twelve by the UK to Gaddafi’s Libya has compared Justice Secretary Ken Clarke’s secret court plans to her experience under Gaddafi, whereby the Security Services would “whisper in the ear of the judge” evidence used to convict her father.

Khadidja al-Saadi‘s family is taking the British Security Services to court for conspiracy to torture, after failing to secure an apology or explanation for their ordeal. 

Today’s Justice and Security Bill means her case will be heard in secret.

The press will be barred and so the public will never know the truth. Khadidja was distressed at the news, and Reprieve has written to the Justice Secretary on her behalf. Her telephone quote is reproduced below.The government today claimed to have made significant concessions on the Justice and Security Bill. In fact, none of these touch the heart of the Bill, which is designed to place our Security Services above the law and keep torture and rendition out of open court.

The Bill is unnecessary — the current system of Public Interest Immunity has worked for years in countless terrorism cases — and is a brazen attempt by our Security Services to insulate themselves from legal challenge and press scrutiny.

Reprieve lawyer Cori Crider said:

When I rang Khadidja Saadi to tell her about these secret court plans, her first reaction was that it sounded like the ‘trial’ her father faced under Gaddafi.  I had to tell her that the rules were changing, and that the new courts were worse than what I deal with in Guantánamo. Gitmo has secret courts but at least I, the lawyer, still get to talk to my client.

Shouldn’t that cause us all to think again? Try it yourself – try explaining in simple language to a young person why Clarke’s courts are fair. Any young person will tell you that they are not. This bill, even with the changes, is still fundamentally unfair. Clarke needs to take a hard look at himself and ask whether this is how he wants to be remembered as Minister for Justice.

Khadidja al-Saadi said by telephone this morning: “This sounds a lot like the trial that Col. Gaddafi used to sentence my father to death.  In that case, my dad told me, a man came from behind a panel and whispered intelligence in the judge’s ear. My father had no opportunity to respond and had no idea what was said. After that, they put him in the red jumpsuit. He tried to hide it from us, but we eventually knew, he had been sentenced to die. I say ‘sentenced’, but it was no trial. It was a joke. Is this really what Britain wants to do with my case?  Why is it fair for the government to whisper about my case in the judge’s ear, without telling me or my lawyers what it has to say?”

Clare Algar, Executive Director of Reprieve, said about the Bill:  “This Bill is a brazen attempt to prevent our government being held to account over the most serious of crimes: rendition and torture. It will ensure that people like Khadidja al-Saadi – the teenage daughter of a Gaddafi opponent who was rendered by the British Security Services back to Gaddafi’s Libya – are barred from having their day in court. And it will ensure that the British public never find out about our government’s role in her ordeal.

This Bill is clearly designed to please our Security Services, but it has horrified lawyers, victims, MPs, journalists and members of the public alike.  It is astonishing that we are even considering allowing our courts to be undermined and our press to be gagged in order to place our Security Services above the law. As David Cameron said, sunlight is the best disinfectant. He must stand by that belief — or become the prime minister who placed torture and rendition beyond the reach of British justice.”

Notes to editors

1. For further information, please contact Katherine O’Shea in Reprieve’s press office: 0207 427 1082 / katherine.oshea@reprieve.org.uk or see http://reprieve.org.uk/investigations/secret_justice. The full letter can be read on Reprieve’s website 2. The government’s ‘concessions’ leave the heart of the Justice Bill intact. Here is an explanation:

1) What the government says

We have dropped secret inquests, a significant concession.

What this means

The government has effectively acknowledged that that secret inquests cannot produce a just result, and has rightly dropped the idea. Yet the rationale that applies to dropping secret inquests should be applied to the entire Bill. Secret ‘justice’ is not justice at all, whether it be for a grieving family or a victim of torture or rendition. Secret hearings undermine two of the most fundamental principles of our legal system: that all evidence must be able to be challenged by the other side, and that justice must be seen to be done. It will also create a parallel system of secret case law, known only to a privileged few. This Bill remains a broad and brazen assault on our centuries-old tradition of British justice.

2) What the government says

They have significantly narrowed the category of cases to be heard in secret from ‘sensitive’ or ‘public interest’ cases to ‘national security’.  (National security is not defined.)

What this means

Post-9/11 torture cases will be heard mostly in secret. This was the purpose of the Bill in the first place – to stop the torture cases – and is still intact.  Under the law, the Libyan rendition cases – Belhadj and al-Saadi – will likely be heard in secret. As a rationale, the UK will say the US will be angered by a public airing of the facts. The government will argue that there is an ongoing national security interest in suppressing British involvement in torture where another party to the torture is a foreign state.  This argument has been largely discredited

3) What the government says

A judge will independently decide whether a Closed Material Procedure (secret court) is appropriate in each case.

What this means

Judges, without the benefit of hearing the view of the other side, will often get the balance wrong.  Once the statute is in place, judges tend overwhelmingly to defer to the government’s national security assertions. Judges themselves know this. This is exactly why the Supreme Court rejected this suggestion of the government in the leading case on secret hearings in civil claims: al-Rawi. As Lord Kerr of the Supreme Court said in that case: ‘evidence which has been insulated from challenge may positively mislead.’

4) What the government says

These changes will improve oversight of the security services because more cases will be (secretly) tried.

What this means

On the contrary, many cases of high public interest will not be brought or will become impracticable to litigate. That’s because one side – the party suing the government for torture – will have slim to no idea of the opposing side’s case. This will reduce access to justice for torture victims, not improve it.

3. The very lawyers who would work within the proposed Closed Material Procedure system – known as ‘Special Advocates’ – have been strongly critical of the Government’s proposals, and the claims made to support them. In their consultation response to the Bill’s Green Paper, they stated: “Contrary to the premise underlying the Green Paper, the contexts in which CMPs are already used have not proved that they are “capable of delivering procedural fairness”. The use of SAs may attenuate  the procedural unfairness entailed by CMPs to a limited extent, but even with the involvement of SAs, CMPs remain fundamentally unfair.”

4. Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives.  Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.

Reprieve’s current casework involves representing 15 prisoners in the US prison at Guantánamo Bay, assisting over 70 prisoners facing the death penalty around the world, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’

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