Stephen Castle
July 26, 2015
A Terrorism Case in Britain Ends in Acquittal, but No One Can Say Why
LONDON — Ian Cobain, a reporter with The Guardian, is one of very few people who know why a student arrested by armed British police officers in 2013 was finally acquitted this year of terrorism charges.
Problem is, he cannot report what he knows. He was allowed to observe much of the trial, but only under strict conditions intended to keep classified material secret. His notebooks are being held by Britain’s domestic intelligence agency. And if he writes — or even talks — about the reason that the student, Erol Incedal, 27, was acquitted, Mr. Cobain faces prosecution and possibly jail.
“I know the essence of what was happening,” Mr. Cobain said, “but I can’t tell, I can’t even talk to my editor about this.”
Having initially gone along reluctantly with the reporting restrictions, a number of British news organizations are now challenging them in court. And yes, the challenge itself is being heard under secrecy rules that leave the public mostly excluded. Were Mr. Cobain to break the law and disclose what he knows publicly, his prosecution would also take place in secret.
“Not even the Russians do that to journalists,” Mr. Cobain said, speaking recently in the cafe of the Royal Courts of Justice in London.
The case is among the latest to highlight the growing debate about the proper balance between civil liberties and national security in the age of terrorism. That debate has intensified this year in the United States and across much of Europe, with nations reflecting on decisions they have made since the Sept. 11 attacks and reacting to more recent developments, from the Charlie Hebdo attacks in Paris to disclosures in Germany about eavesdropping by the United States National Security Agency.
In Britain, which recently lost 30 citizens to a terrorist attack in Tunisia, public support for the intelligence and security agencies is high, according to opinion surveys, and Prime Minister David Cameron has promised to expand their resources and their ability to monitor electronic communications.
But the Incedal case has focused attention on whether governments are cloaking too many of their activities in national security classifications, insulating themselves from public debate and accountability for mistakes or collusion with suspects.
“It’s hard to know quite who is being protected in all this,” said David Davis, a lawmaker from the governing Conservative Party and a former minister.
“The implication is that this is more about the embarrassment of the agencies than it is about real questions of national security,” he added.
Sean O’Neill, a reporter with The Times of London who also attended the secret hearings, said he believes that the government’s desire to keep some of the trial evidence secret was legitimate, but that this could have been done under normal rules allowing parts of trials to be held behind closed doors.
Instead, the conduct of the Incedal case demonstrated an “obsession with secrecy” at a time when there is growing debate on the oversight of intelligence agencies, Mr. O’Neill said.
“There is a refusenik factor in these organizations which thinks ‘anything we give will undermine us, and therefore undermine national security,’ ” he said.
The result is that, as things stand, public knowledge about one of Britain’s biggest recent terrorism trials is a patchwork of partial truths and unanswered questions.
In the parts of the proceedings that were open, jurors heard that Mr. Incedal traveled to Syria, met a fighter known as Ahmed and discussed terrorist attacks.
In September 2013, Mr. Incedal, who was born in Turkey but lived in London, was stopped by the police for speeding, and his car was searched. A slip of paper found in a glasses case contained the address of a property owned by Tony Blair, a former prime minister.
While he was detained, Mr. Incedal’s car was bugged, and a listening device recorded him talking about buying a gun.
Then came the dramatic arrest by armed police officers when Mr. Incedal was stopped while driving with a friend, Mounir Rarmoul-Bouhadjar, near Tower Bridge in central London, and the tires of his Mercedes were shot out. The police found a memory card with instructions on assembling a bomb in Mr. Incedal’s phone case.
After his first trial last year, Mr. Incedal was convicted of possessing the bomb-making guide, and was sentenced to 42 months in jail. Mr. Rarmoul-Bouhadjar was jailed, too, after admitting to having a similar manual. But a jury could not agree on whether to convict Mr. Incedal of broader terrorism offenses.
After a retrial, Mr. Incedal was acquitted in March, but the reasons remain unknown to the public.
Mr. Incedal argued in open court that he wanted a gun to protect himself as he was planning to deal in drugs, and that he had a “reasonable excuse” for having the bomb-making manual. Again, what that excuse was is not clear.
Even these scraps of information are more than the authorities wanted made public. Initially, prosecutors argued that they might not be able to bring the case to court unless it was held in complete secrecy.
But after an appeal by news organizations last year, a strange middle way emerged: Some of the trial was held in public, some in secret, and the rest in a kind of no man’s land.
Ten reporters, including Mr. Cobain and Mr. O’Neill, were admitted to these segments of the trial on the condition that they published nothing from the semi-secret sessions and that, at the end of each day, their reporters’ notebooks were locked in a safe.
The notebooks are now being held by MI5, Britain’s domestic intelligence service — a fact that has been reported by the British news media and is not denied by the government, although it will not comment officially.
In going along with the reporting restrictions a year ago, the 10 news organizations accredited to the trial may have believed — incorrectly as it proved — that the secrecy would be lifted at the end of proceedings. Although not all of the news organizations covered every phase of the trial, no media group refused to attend on principle. Mr. Cobain says he now has “real reservations” about having gone along with the process, but, of course, cannot explain why.
In a statement, the Crown Prosecution Service said that the case “touched on important issues which related to national security.”
“Some evidence has already been made public as it was dealt with in open court,” the statement said. “We are working to identify evidence heard during the closed proceedings which could be placed in the public domain.”
“The extent to which further evidence can go into the public domain will ultimately be a decision for the judge.”
Many are not convinced. “How is the public to evaluate the state’s actions if the media cannot report on it?” said Cian C. Murphy, a legal expert at King’s College London.
“In constitutional terms, secrecy is anathema to the rule of law because legal and political accountability is impossible without transparency,” he said. “If errors are made, they must be brought to light — but there is little incentive for the prosecution, intelligence agencies or government departments to acquiesce when they can invoke national security to ensure secrecy.”
Critics contend that such secrecy risks eroding not only civil liberties, but ultimately the effectiveness of the intelligence agencies, too.
“The more secret the organization is, the more inefficient it tends to be,” Mr. Davis said. “It’s unwise to think of them as a bunch of hyperefficient James Bonds. They probably aren’t.”
“The truth is,” he added, “that there is no such thing as secret justice. If it’s secret, it’s not justice.”
The appeal against the reporting restrictions has now been adjourned until the autumn, but in one public session this month, Lord Chief Justice John Thomas acknowledged that there were “really difficult constitutional issues” at stake.
A few minutes later, those reporters without special permission to attend were politely asked to leave.
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