This morning (2nd February 2004) I heard a report on the BBC Today programme that claimed that the Home Secretary was proposing that the law should be changed to enable trials of suspected terrorists to be conducted in secret, without a jury, with no free choice of lawyer, and convicting on balance of probabilities, rather than "beyond reasonable doubt".
At first I could hardly believe what I was hearing. I was still partly asleep, I assumed that I must have misheard, or somehow got the news mixed up with my dreams. But a few minutes later, they said the same thing again. I half expect that someone would have announced that it was all a misunderstanding and that the Today programme got it wrong again.
If these ideas really are Mr. Blunkett's policy then he's not fit to be Home Secretary. If I lived in his constituency I would not be able to vote for him. In the unlikely event that this became government policy I would not be able to vote for the government. If they became Labour Party policy I don't think I could remain a member of the party.
Please tell me that it's all a terrible mistake.
There's probably no real need to go into the reasons why these would be very bad ideas, but I will mention a few of them anyway. I'm sure you can easily think of plenty of others.
1) Secret trials violate the principle of natural justice that the accused should know who their accusers are.
2) Peaceful supporters of whatever cause they are supposed to have been terrorists for, will regard anyone found guilty in secret as political prisoners, and will probably believe the trials are fixed. That will just make things worse.
3) The requirement to use only lawyers who have been security vetted is completely against the principle of natural justice that the accused should be allowed to choose their own defence. We rightly criticise other countries - such as Saudi Arabia, or China - that deny this right.
4) Implementation of these laws would depend on someone deciding who is, and who isn't a potential terrorist before the secret trial could take place. That process itself would have to be secret, if not there would be no point in secrecy at all. Whatever secret legal checks and balances were imposed on the special tribunals themselves would not be be imposed on those making the decisions to put suspects into the system. Ands once you were in, how woudl you ever get out, with no access to the evidence against you?
5) The identification of these supposed terrorists would presumably be based on secret intelligence. In the last week we've seen the both the Hutton report, and the statements of the US weapons inspector David Kay. We are being asked to believe that in 2002 the "entire intelligence community" had a completely false idea of the state of affairs in Iraq. That the Home Secretary's current proposal should come to light within a week of these reports is such an absurdly bad piece of political timing that it is one of my main reasons for believing that he has been mis-reported.
6) The idea that "terrorism" should be a separate category of crime is a problem. The difference between a "terrorist" and a common criminal, or an enemy soldier, depends not on the crimes they commit but on who they are. So someone can be made a "terrorist" by redefining their status, regardless of what they actually did. As far as I know, murder and treason have been illegal in England for as there has been a law in England. People should be tried for what they do, not for who they are.
7) That becomes even worse if we adopt some of the redefinitions of "terrorism" that have been used by President Bush and others. The usual meaning of the word has been the use of violence or threat of violence to terrorise civilians for political or military ends. But recently the word has been used, especially by the government of the USA, to mean any act of war committed by a private individual rather than by the regular military.
This redefinition allows us to call people "terrorists" or otherwise, by changing our view of their political status. If the Taliban were recognised as the government of Afghanistan (de facto if not de jure) then their armed defenders were soldiers. If they were not so recognised, then they were (using this self-serving redefinition of the word) "terrorists." In the same way, when we were at open war with the previous government of Iraq, people who resisted our armies could be considered to be legitimately defending their own country. But as soon as we unilaterally declared peace, and abolished the enemy government without any national act of surrender or peace treaty, anyone who continued to fight instantly became by this definition a "terrorist". If some future British government were to decide that, say Palestine, or Tamil Eelam, or Chechenya, were independent states then some actions which would previously have been "terrorist" would then become merely military. Someone who is in the regular service of a recognised state, and who is acting under orders, becomes incapable of being defined as a terrorist. If there is a country at civil war, and we recognise one side then anyone who has fought for the other side who for some reason finds themselves in British hands, might become liable to conviction as a terrorist in a secret court.
This is not at all the same as the old clich d question about distinguishing a "terrorist" from a "freedom fighter", because it is not about what a supposed terrorist does, or what their motive for doing it is, or who they are, or even what we decide to call them; but about our view of the status of their political masters. In the extreme case one might be convicted, and another go free, not because of any difference in their actions, but because of our opinion of the legitimacy of rulers whom they did not choose to be subject to.
And there is no way the British people could know if that was happening, because the trials would be secret.
8) Once it becomes easier to lock someone up by trying them in these secret courts, agencies wishing to protect the country from those they honestly believe to be a threat, will have every incentive to extend the field of these special courts and to widen the definitions of those who are no longer subject to the usual protections of British law.
9) However well-meaning the current government these laws will still be in place for the use of future administrations, who may have such good intentions. I do not believe that Britain has any God-given promise of honest and democratic and accountable government for the unforeseeable future. David Blunkett is being incredibly naive if he assumes that nice well-meaning honest people like him will be running the British government for all time. It is perfectly possible that we or our children might find ourselves under an oppressive regime at some time. Almost every country in mainland Europe other than perhaps Switzerland, has been subject to tyrannical government within living memory. This is a dangerous world, there is no reason to think we are especially protected for all time.
There have been authoritarian regimes in which openness or independence of the courts, and the courage of lawyers, have provided at least temporary and local mitigation to oppressive acts of government, and have supplied valuable transparency to otherwise secret and underhand political processes. For example, South Africa under the apartheid system, Colombia in more than one period of its history, perhaps Zimbabwe right now. Laws like this (and the proposed id cards) make the lives of such governments easier.
10) Secret trials will be conducted badly. Openness, accountability, and public scrutiny are necessary for efficient administration of justice (or anything else). When things are done in secret, corners will be cut, abuses overlooked, short-cuts taken, rules bent. And even if they aren't no-one will believe that they aren't. After-the-fact scrutiny by retired judges, or committees of Privy councillors, or other insiders, are hardly likely to reassure anyone.
11) Perhaps worst of all, laws like these weaken the moral bonds between government and citizen. If they were in place we'd all have to think twice, three times, before co-operating with any investigation or trial of people accused of terrorism, knowing that they would not be tried fairly and openly.
I was at Canary Wharf when the bomb went off at South Quay in February 1996, and I was bloody scared. I was working in Knightsbridge when the second of the Harrods bombs went off, it damaged of some of our offices, and I took part in clearing up afterwards. I'm as horrified by, and as frightened off such atrocities as anyone. But even if I was persuaded that these changes to our laws would significantly reduce the threat of future terrorist attacks - and I'm not - I don't think the long-term damage to our liberties would be worth those short-term and easy gains.