Secret trial

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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.

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[]

It is possible that some wholly secret trials occurred in Australia during World War I or World War II.^[1] In the 21st century, several secret trials have occurred or are set to occur in Australia:

• In 2018, "Witness J" was trialed and imprisoned by the Australian Federal Government in near-total secrecy. The existence of Witness J was only discovered by chance by a judge, and the scant details were reported to the media. The Attorney General of the ACT, where Witness J was imprisoned, was not aware of the case. Witness J is a former employee of one of Australia's intelligence agencies, but their identity and alleged crimes are still not public. Independent National Security Legislation Monitor James Renwick said that the level of secrecy in Witness J's case was "unprecedented".^[2]
• From 2018 to 2021, lawyer Bernard Collaery and "Witness K" have been prosecuted by the Australian Federal Government 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 to aid Australian company Woodside Petroleum. Collaery and Witness K are accused of sharing this with the Australian media and the Timor Leste government. Collaery was Witness K's lawyer at the time. Witness K has pleaded guilty, while Collaery has not.
• From 2018 to 2021, former military lawyer David McBride has been prosecuted by the Australian Federal Government for leaking 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 then went to the Australian Broadcasting Corporation, who in 2017 published a series of articles on the killings and corpse-mutilations called "The Afghan Files". After this, the military began to investigate the war crimes, leading to the 2020 Brereton Report. Part of McBride's 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[]

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[]

• In camera
• Open court principle
• Secret witness

References[]

External links[]

• "Secret evidence"^{[permanent dead link]} JUSTICE report, June 2009.