Closed material procedure in civil proceedings

Abstract

"Items of historical significance of two wars Iraq and Afghanistan Significant Activity, Sigacts, between 0001 January 2004 and 2359 31 December 2009 extracts from CSV documents from Department of Defence and CDNE database…This is one of the most significant documents of our time removing the fog of war and revealing the true nature of 21st century asymmetric warfare…" ¹ This was part of the message sent along with the documents later known as Iraq and Afghanistan war logs from Chelsea Manning, a United States solider, to the website of WikiLeaks - an international, online, non-profit organisation which publishes secret and sensitive information. The release of the war logs was referred as “the largest leak of classified documents in its history” and the release of diplomatic cables exposed numerous unguarded comments and revelations regarding critiques and praises about the host countries of various United States embassies; United States intelligence and counterintelligence efforts and other diplomatic actions. These leaks put the United States in great controversy considering its actions in the Iraq and Afghanistan wars and caused quite an embarrassment due to its comments regarding diplomatic actions. Chelsea Manning was convicted and Julian Assange, the founder of WikiLeaks, is facing potential criminal prosecution, despite being granted political asylum. While WikiLeaks still works as an important role of exposing the “truth” to the public, it imposed great concerns to many of the governments around the world towards their government policies, national security and general reputation. The consequence of WikiLeaks releasing sensitive information about United States government rang the alarm of the importance of governments safeguarding secret information. The motivation of the United Kingdom government issuing the Justice and Security Act arguably comes from the concern of exposing sensitive information. The Introduction of the Act reads that the JSA is “to provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to make provision about closed material procedure in relation to certain civil proceedings; to prevent the making of certain court orders for the disclosure of sensitive information; and for connected purposes”. This Act, based on the objectives mentioned above, introduced closed material procedure to the civil proceedings, which is regarded as a response to the judgment of Al Rawi, undoubtedly generated huge discussions across boundaries as to the matter of security and liberty; security and due process; security and justice; the Act’s in relation to the common law as well as its relationship with Article 6 of the European Convention on Human Rights. While many of the scholars accused JSA of “turning off the light”, this paper would like to direct attention to the Wikileaks incidents and consider the views of both the British government and the promoters of human rights and common law. This paper will first introduce the effect of CMP in the criminal proceedings, and then look at Al Rawi and Tariq. It will conclude the conflicts when adopting CMP and by interpreting JSA to draw some concerns and the certain “light”, as well as some suggestions towards CMP in JSA. 1. Denver Nicks. 'Private: Bradley Manning, WikiLeaks, and the Biggest Exposure of Official Secrets in American History' (Chicago Review Press, Chicago, 2012) at 137-138.