Saturday, October 29, 2016

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Closed Material Procedures: Intelligence Trade Craft In Perspective

Christy Walsh with a second article on Closed Material Procedure.  Christy Walsh has for years campaigned against miscarriages of justice.

In this article I will show how intelligence secrecy can be used to side step the procedural rules concerning the admissibility of evidence normally required to deprive a person of their liberty. UN Special Rapporteur, Juan E. Méndez, has warned “that the standard of proof applied to proceedings in which closed material is used is still much lower than in civil and criminal cases”.[1] The Special Rapporteur has concluded that CMP’s should comply with admissibility rules and enable individuals to effectively challenge secret evidence from the security services.[2]

There is a distinction between what the executive, or intelligence agencies, would consider usable credible, or tainted information, and the bottom line courts apply to admit credible evidence to prove the case.[3] Civil Rights and Constitutional law expert, Professor Seth F. Kriemer refers to the Intelligence Community’s limitless capture of information as the pursuit of "Novel Intelligence from Massive Data”.[4]

In his book The Professionalization of Intelligence Cooperation: Fashioning Method out of Mayhem, intelligence expert, Adam Svendsen, refers to the nature of intelligence work and the cavalier approach of operatives. He points out that “there are distinct caveats, many of which endure”[5] one of which is a practice defined in the intelligence world which he describes as ‘Bureaucratic Pressure Theory’; which, he explains, is “characterised as cooking the intelligence to fit the decision maker’s recipe”.[6] He cites UK journalist and former intelligence officer, Donald McLachlan, who cautioned in 1968 how: “… much of the work goes unrecorded on paper, lost forever in scrambled talk and burnt teleprinter flimsies, any account must be incomplete.”[7] Svendsen also quotes advice from former Deputy Director for National Intelligence for Analysis and Chairman of the US National Intelligence Council, Dr Thomas Fingar, that Intelligence Officers “need to focus on ‘Multiple hypotheses, rather than being lawyers that have a bottom line and marshal the evidence to prove the case.’”[8] He also explains how risk analysts Paul Bracken, Ian Bremmer and David Gordon have all cautioned that: ‘Over-specialization can create professional experts who have a tendency to ignore factors that do not fit in well with their theories.’[9]

Svendsen’s observations were long known to legal academics and judiciary. American legal theorist and contributor to civil liberties laws, Yale Law School, Professor Thomas Emerson, explains how Intelligence agencies consider “almost anything [i]s grist for its mill as it seeks to collect information on beliefs, opinions, associations, and actions in ever-widening circles.”[10] Professor of Criminal Justice Studies, Clive Walker, refers to the reliance on intelligence material as a “systematic factor potentially affecting the legal system”[11]. Walker goes on to cite Newman J in MK v Home Secretary[12]: “The Security Service material … is not recorded and prepared for the purpose of being presented and used as evidence in an adversarial hearing.”[13] The use of CMPs ensures that material that might not otherwise have passed any admissibility process becomes effectively unchallengeable evidence at any subsequent trial. Walker points outs how “special departures from evidential norms” in other areas of law have “proved to be unworkable and have been dropped”[14] and is therefore quite scathing of CMPs where:

The appearance of special advocates and closed material in civil proceedings is disturbing. … [T]he executive should not otherwise be allowed to reformulate basic standards of justice.[15]


Laura Donahue, in her book The Cost of Counterterrorism: Power, Politics, and Liberty, she describes how an ex-intelligence agent was ordered by a US Court to redact as much as 20% of his manuscript because it was alleged that it contained security sensitive material which Donahue has described as no more than “well-known public facts”. Donahue observes how the US Courts granted the Intelligence Agency a “high presumption of regularity”.[16] Donahue notes that under the UK’s Official Secrets Act “the state frequently used its powers to save the government from embarrassment” even though the state’s action might have “nothing to do with the purpose for which the law was introduced”.[17]

Donohue has described the Intelligence Services Commissioner’s[18] (ISC) annual practice of “cut-and-paste function, simply repeating from year to year the legal authorities under which the intelligence services conduct surveillance”[19]. These reports, Donahue explains, are intended to “assure the public that any errors are solely due to administrative hiccups and that the powers themselves have been exercised in good faith.”[20] Albeit, the JSA has restricted the ISC’s oversight ambit, now, under section 5(5) “The Prime Minister must publish … any direction under this section” unless he/she thinks that it would not be in the public interest, national security or other mandated reason. Under Section 5(1) of the JSA the ISC must keep under review, where directed by the Prime Minister, (a) an intelligence service, (b) a head of an intelligence service, or (c) any part of Her Majesty’s forces engaging in intelligence activities.

In March 2015 the ISC completed an 18-month inquiry into the surveillance laws, policies, and, activities of the UK. [21] The ISC concluded that the legal framework on surveillance "could be misconstrued as providing the agencies with a ‘blank cheque to carry out whatever activities they deem necessary’". While recognizing that most of the detail regarding the capability of intelligence agencies must remain secret, the ISC recommended that "there is, however, a great deal that can be discussed publicly, and we believe that the time has come for much greater openness and transparency regarding the agencies’ work".[22]

Svendsen has described the practicalities with working with intelligence sensitive material as being “difficult to unpack, are mixed, uneven, and frequently remain murky and ambiguous”.[23] Therefore, what effect, on the administration of justice, does bringing this same “murky and ambiguous” material into court under the guise of an impractical counterbalancing between secrecy, procedural protection and Convention rights?

In Al Rawi the Supreme Court considered its jurisdiction to order a CMP for the whole or part of a civil claim for damages. Lord Kerr was sceptical of any balancing between a litigant’s right to know the evidence against them and the use of secret sensitive material against them. His Lordship believed that, “[t]he seemingly innocuous scheme proposed” was intended to deny “a fundamental right which . . . has been established for more than three centuries.”[24]

The definition of sensitive material is generally construed very broadly, meaning information which relates to, has come from, or is held by, the security and intelligence agencies.[25] Emerson points out how rumour, opinions or accusations are “grist” for the intelligence services but none of these things constitute evidence or why it should be kept secret. Whilst the credibility or character of secret witnesses remains obscure, consideration of the Intelligence Services administrative practices, or conduct, where known, could contribute to the study of the use, and viability, of CMPs. For example, Law Professors, Tommaso Giupponi and Federico Fabbrini, have analyzed the secret privilege powers of the Italian Executive and assert that “on several occasions the secret services acted illicitly and even against national security interests.[26] Giupponi and Fabbrini emphasis the pressures intelligence agencies are under to acquire information that “may entail overlooking or engaging in outright violations of law.[27] The Professors explain that the activities of intelligence agencies cannot be easily understood as purely political reasoning “nor in a hypothetical 'State of necessity' doctrine empowering the State to employ any means in the achievement of its purposes”.[28]

Allowing Intelligence Services, Government Ministers or Parole Boards to cloak inaccurate or incomplete information in secrecy means that rumour, opinions or accusations are all it takes to undermine the administration of justice. The excluded party and their lawyers are not permitted to participate in all or significant parts of the proceedings. Further, the excluded party and their lawyers are not permitted to see all or part of any court judgment against them which would allow them to lodge an effective appeal.


[1] Juan E. Méndez, 'Report Of The Special Rapporteur On Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment' (2014), at § 34. http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A-HRC-25-60_en.doc,
[2] ibid, at Part B, § 82(h). 
[3] ibid, At Part 3, B, ‘State practice and the distinction between the use of tainted evidence in judicial proceedings and by executive agencies’, at §§ 37- 39.
[4] Seth F. Kreimer, ‘Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror’, Journal Of Constitutional Law 2011 vol 7:1, at p. 137.
[5] Adam D.M. Svendsen, The Professionalization Of Intelligence Cooperation: Fashioning Method Out Of Mayhem (Palgrave Macmillan 2012), at p. 143.
[6] ibid, at p. 143.
[7] ibid, at p. 143.
[8] Adam D.M. Svendsen, The Professionalization Of Intelligence Cooperation: Fashioning Method Out Of Mayhem (Palgrave Macmillan 2012), at p. 155.
[9] ibid, at p. 153.
[10] Emerson, Thomas I., "Control of the Intelligence Agencies", Detroit College of Law Review (1983), at p. 1205.
[11] Prof. Clive Walker, Terrorism and the Law, Oxford University Press, 2011, at p. 261, § 6.35.
[12] MK v Home Secretary (SIAC Appeal No SC/29/2004, 5th September 2006), § 6.
[13] Prof. Clive Walker, Terrorism and the Law, Oxford University Press, 2011, at p. 262, § 6.37.
[14] ibid, at p. 260, § 6.29.
[15] Prof. Clive Walker, Terrorism and the Law, Oxford University Press, 2011, at p. 261, § 6.35.
[16] Donohue, Laura K. The Cost of Counterterrorism: Power, Politics, and Liberty. Cambridge: Cambridge University Press, 2008, at pp. 319-320.
[17] ibid, at p. 326.
[18] Established under Section 8(1) of the Intelligence Services Act 1994. 
[19] Donohue, Laura K. The Cost of Counterterrorism: Power, Politics, and Liberty. Cambridge: Cambridge University Press, 2008, at p. 319.
[20] ibid.
[21] See House of Commons, Intelligence and Security Committee, Privacy and Security: A modern and transparent legal framework (HMSO, 2015), HC Paper No.1075; see also, P. Wintour and R. Mason, "UK surveillance laws need total overhaul, says landmark report" (March 12, 2015), The Guardian,
http://www.theguardian.com/us-news/2015/mar/12/uk-surveillance-laws-need-total-overhaul-says-landmark-report-edward-snowden [Accessed June 22, 2015]; G. Greenwald, "UK Parliament Committee, calling for reform, shows its ‘evidence’ to justify mass surveillance" (March 12, 2015), The Intercept.  https://firstlook.org/theintercept/2015/03/12/uk-parliament-finally-offers-evidence-mass-surveillance-stops-terror-attacks/  [Accessed June 22, 2015].
[22] Ibid.
[23] Adam D.M. Svendsen, The Professionalization Of Intelligence Cooperation: Fashioning Method Out Of Mayhem (Palgrave Macmillan 2012), at p. 139.
[24] Al Rawi and others v The Security Service and others [2011] UKSC 34, [2012] 1 AC 531, at § 92.
[25] Juan E. Méndez, 'Report Of The Special Rapporteur On Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment' (2014), at p. 9 § 35.  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A-HRC-25-60_en.doc.
[26] Tommaso F. Giupponi  & Federico Fabbrini, ‘Intelligence agencies and the State secret privilege: the Italian experience’, Vienna Online Journal on International Constitutional Law, Vol. 4, Issue 3 (2010), at pp. 449-450.
[27] Emerson, Thomas I., "Control of the Intelligence Agencies", Detroit College of Law Review (1983), at p. 1205.
[28] Tommaso F. Giupponi  & Federico Fabbrini, ‘Intelligence agencies and the State secret privilege: the Italian experience’, Vienna Online Journal on International Constitutional Law, Vol. 4, Issue 3 (2010), at p.444.

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