The depth of the slide from the rule of law and international human rights standards into the secrecy, impunity and cruelty of the national security state was crystallised in recent cases about the deportation of terror suspects.
The House of Lords recently decided to allow alleged 'national security threats' to be returned to Algeria and Jordan, where the risk of torture is masked but not diminished by worthless diplomatic assurances. This flies in the face of objections from all major human rights organisations, including the Council of Europe's Human Rights Commissioner and the United Nations' Special Rapporteur against Torture.
The Algerian government refused point blank to allow independent monitoring of its interrogations. UK government representatives were touchingly sympathetic, murmuring about 'post-colonial sensibilities'. The Jordanian government agreed to monitoring - by an organisation with no experience or medical expertise.
Desperate to get rid of 'undeportable' national security detainees - whose three-year internment in Belmarsh was condemned in 2004 by Lord Bingham's House of Lords' judicial committee - the government has allowed the unthinkable to became acceptable.
The new, executive-friendly set of Law Lords, now headed by Lord Phillips, have given the green light. In the case of Abu Qatada, the Lords have also allowed deportation backed by torture evidence to be acceptable, brutally repudiating Lord Bingham's 2005 judgment that torture evidence taints the whole judicial process.
They also say all this can be done on the basis of secret evidence, concealed from the accused and their representatives. Appellants, say their Lordships, need not know about any secret diplomatic negotiations smoothing the path for their return, nor what their own governments allege against them. It's hardly surprising that Abu Qatada's lawyers plan to take his case to the European Court of Human Rights.
To make matters worse, confidential information about the men's asylum claims and allegations made against them in the UK will be given to their national governments. States with poor human rights records don't take kindly to their citizens complaining about them to other governments, and reprisals are likely against the men and their families. 'National security' now trumps all such considerations. On 27 January, the high court ruled that confidential information could be handed to officials of the receiving state. Another golden rule of refugee law, the absolute confidentiality of refugee claims, lies broken.
It is worth pointing out none of the men facing deportation on national security grounds have been convicted in the UK of any terrorist offence. The convictions some have, in Algeria or Jordan, were obtained by the methods the Lords are now so reluctant to condemn. Ask what these men have actually done and there is no answer. The judges have presided over a system in which, as criminologist Magnus Hörnqvist warned five years ago ('The birth of public order policy', Race & Class 49:1, 2004), the judicial determination of guilt on the basis of evidence given in open court has been replaced by administrative assessments of largely secret intelligence. They are 'deemed' a 'threat to national security' on the basis of their sympathies, their associations. Neither they nor we know much more than that.
Some of these men have been detained or quasi-detained (subject to lengthy curfews, electronic tags, reporting five times a day, forbidden mobile phones or computers, allowed no un-vetted visitors, etc) for over seven years. They see no end to it, as they cannot clear themselves from unformed and untold allegations.
In 'Besieged in Britain' (Race & Class 50:3, 2009), Victoria Brittain movingly describes the human impact on those detained or on immigration bail in the UK. They endure a Kafkaesque process of defending themselves against deportation on the basis of largely unknown allegations, whilst languishing for years in maximum security prisons, or facing stringent bail. Their wives and families, meanwhile, have to live with constant intrusions and searches. They can't have friends to visit, use mobile phones or computers, and above all live with the daily humiliation and denial of basic dignity which the process entails. And they face the ordeal alone, ostracised by their communities.
It's not surprising that our security services seek to draw a cloak of secrecy over the methods with which they obtain their 'operational intelligence' - including the sub-contracting of torture to friendly intelligence services such as those in Pakistan, as recently revealed in Binyan Mohammed's case. But it is the judges who have presided over it all that have made such methods possible.
Further reading: International Commission of Jurists' February 2009 report, Assessing damage, urging action. www.icj.org