Secret trial

A secret trial is a trial that is not open to the public, nor generally reported in the news, especially any in-trial proceedings. Generally no official record of the case or the judge's verdict is made available. Often there is no indictment. The accused is usually not able to obtain the counsel of an attorney or confront witnesses for the prosecution, and the proceedings are characterized by a perceived miscarriage of justice to the benefit of the ruling powers of the society.

Not to be confused with an in camera trial, whose existence is public but not its proceedings.

Secret trials have been a characteristic of almost every dictatorship of the modern era, but even in democratic regimes secret trials have taken place, usually cited by state authorities as necessary for the same reason as those in dictatorships—national security.

By country

Australia

In the 21st century, several secret trials have occurred or are set to occur in Australia:

  • In 2018, Witness J was trialed and imprisoned in near-total secrecy. The existence of Witness J was only discovered and reported to the media by chance. The identity of Witness J and what they were convicted of, are still unknown, but it is known that they are a former employee of one of Australia's intelligence agencies. The level of secrecy in Witness J's prosecution has been described as unprecedented by Independent National Security Legislation Monitor James Renwick.[2]
  • From 2018-2021, Bernard Collaery and Witness K have been prosecuted with a high degree of secrecy, and part of their upcoming trial will be held in secret. The Liberal / National Coalition government of John Howard had helped secure the independence of impoverished Timor Leste from Indonesia. Negotiations were underway over fossil fuel deposits located in the sea between Timor Leste and Australia. The Howard Government spied on the new Timor Leste Government, and used that as leverage in negotiations. Collaery and Witness K are accused of sharing this information with the media and Timor Leste. Witness K has plead guilty, while Collaery has not.
  • From 2018-2021, David McBride has been prosecuted for allegedly leaking to the media details of alleged war crimes committed by Australian soldiers in Afghanistan. McBride reported the crimes to superiors in the Australian Defense Force, but felt that the evidence was not being taken seriously, so went to the Australian Broadcasting Corporation who published a series of articles on the killings and corpse-mutilations called "The Afghan Files." Part of his upcoming trial will be held in secret.

USSR

Although the Great Purges in the Soviet Union under Joseph Stalin are best remembered for the Moscow Trials, show trials in which the court became a parody of justice, most of the victims of the Terror were tried in secret. Mikhail Tukhachevsky and his fellow Red Army officers were tried in secret by a military tribunal, and their executions were announced only after the fact. The presiding judge of the Moscow Trials, Vasili Ulrikh, also presided over large numbers of secret trials lasting only a few minutes, in which he would quickly speak his way through a pre-formulated charge and verdict.

United Kingdom

In the English-speaking world, one of the most notorious secret courts was the Star Chamber as it was used under Charles I in the early 17th century. The abuses of the Star Chamber were one of the rallying points of the opposition that organized around Oliver Cromwell, and ultimately resulted in the execution of the deposed king. The term "star chamber" became a generalized term for a court that was accountable to no one (except the chief executive) and was used to suppress political dissent or eliminate the enemies of the regime.

R v Incedal and Rarmoul-Bouhadjar (2014) was to be the first British trial to be held entirely in secret.[3] However, the Court of Appeal blocked full secrecy.[4]

United States
Main article: United States Foreign Intelligence Surveillance Court

The FISA Courts of the national intelligence apparatus are by design, secret courts, empowered by the Foreign Intelligence Surveillance Act of 1978 to conduct secret trials, and impose secret punishments. Counsel who argue in the court are also subject to a secrecy order, preventing disclosure of informations about any cases in front of the court. Individuals who have been targeted in the court are also subjected to secrecy orders. The court sits ex parte – in other words, in the absence of anyone but the judge and the government present at the hearings. This, combined with the minimal number of requests that are rejected by the court has led experts to characterize it as a rubber stamp; (former National Security Agency analyst Russ Tice called it a "kangaroo court with a rubber stamp").[5].

See also

References
  1. https://www.canberratimes.com.au/story/6662072/witness-j-case-unprecedented-says-national-security-watchdog/
  2. https://www.canberratimes.com.au/story/6662072/witness-j-case-unprecedented-says-national-security-watchdog/
  3. "Secret trial plan for English court". BBC News. 4 June 2014.
  4. "Fully secret terror trial blocked by Court of Appeal". BBC News. 12 June 2014.
  5. Ackerman, Spencer (June 6, 2013). "Fisa Chief Judge Defends Integrity of Court over Verizon Records Collection – Reggie Walton Tells The Guardian Claims Foreign Intelligence Surveillance Court 'Is a Rubber Stamp [Are] Absolutely False' – Revealed: NSA Collecting Phone Records of Millions of Verizon Customers Daily". The Guardian. Retrieved July 11, 2013.
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