A judge has ordered that the criminal trial of two persons accused of terrorism (or rather of ‘preparing for terrorism’) should be held in secret, and that even the existence of this trial should be kept secret on the grounds provided by the crown prosecution that “there was a serious possibility that the trial may not be able to go ahead”. That looks suspiciously like blackmail. And it is an extreme unprecedented departure from open justice for defendants to be anonymous, a court meeting in utter secrecy, and the press and public wholly excluded from the proceedings.
It cannot be regarded as consistent with the rule of law, and it is certainly a defiance of democratic accountability. Secrecy breeds injustice and punitiveness, especially when it is caused by fear that puts the governing class at risk. It also raises the question not only whether we can trust the judges with our freedoms, but also who should take the final decision when the usual mantras are trotted out about ‘national security’ or ‘war on terror’ (a Bush invention) – is it really the judges or should it be the Information Commissioner who is used to dealing with what should or should not be divulged?
What is alarming is how little pushback there has been against the excesses of the authoritarian State. There is no countervailing force from the Executive (indeed they are one of its prime drivers), and there has been little parliamentary resistance. This is all the more remarkable when the Snowden revelations have now been reinforced by Vodaphone declaring that secret wires are in use which allow government agencies to listen to all conversations on the company’s networks, and that they are widely used in some of the 29 countries where Vodaphone operates. This is done in complete secrecy without any official warrant being required so that there is no audit trail of accountability.
What is clearly needed is for these direct-access wires (or pipes) to be disconnected and for the laws that give them legality to be repealed. Insofar as this State hacking activity continues at all, it should be limited to extreme circumstances where the survival of the State is genuinely at risk. Also States should publish data each year on the number of warrants issued, distinguishing between content and metadata (location, times and dates, and persons communicated with).
Companies should also publish the number of warrants they receive from State agencies, which software companies have already begun to do, though telecoms companies which depend on government licences to operate have been less inclined. But Vodaphone has set an important precedent and they should follow it.