LONDON — Lawyers for six former Guantanamo detainees today appealed a ruling that the British government can use secret evidence to fight a claim that it was complicit in their abuse.
The former terror suspects, all British citizens or residents, are suing the government and intelligence agencies over their alleged mistreatment in Afghanistan, Guantanamo and elsewhere. They deny any involvement in terrorism and allege that British spy agencies abetted their unlawful imprisonment and extraordinary rendition to locations around the world where they were tortured.
The government says some evidence is too sensitive to be released to the claimants, their lawyers or the public. But the former detainees say having access to the British government evidence is vital to open justice.
Dinah Rose, a lawyer for several of the claimants, said the secrecy the government seeks “has never been allowed in the history of the common law.
“The process is fundamentally incompatible with the very notion of what a civil trial is,” she said.
In November, the High Court ruled that some evidence could be heard in secret if its disclosure was considered a threat to national security or international relations. In that case, the material could only be reviewed by a specially appointed lawyer who could not discuss it with the former inmates or their attorneys.
The system of secret evidence, known as a “closed material procedure,” has been used only in a handful of terrorism cases, and never in civil courts.
Lawyers for the men claim that the extension of its use would be dangerous to the judicial process, and say the courts have no power to allow the procedure.
“Does the civil court have the power to conduct a trial in the absence of the claimant and to entertain oral and written submissions that are concealed from the claimant and ultimately to give a judgment that is concealed from the claimant?” Rose said. “Our submission is that the answer is no.”
The case is the latest legal battle by the government to keep information secret in cases of alleged torture. Last month, a court ordered the release of a summary of CIA documents detailing ex-Guantanamo Bay detainee Binyam Mohamed’s mistreatment in Pakistan in 2002, rejecting the government argument that it should be kept secret.
The claimants are Ethiopia-born Mohamed, who was released from Guantanamo last year; Libyan-born Omar Deghayes, Iraqi Bisher al-Rawi and Palestinian-Jordanian Jamil el-Banna, all British residents who were released in 2007; and Britons Martin Mubanga and Richard Belmar.
The hearing before three appeals judges is scheduled to last three days.
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