Dr Laura Jeffery is a Lecturer and ESRC Research Fellow in Social Anthropology at the University of Edinburgh, specialising in forced displacement, migration, the environment, and human rights. Her academic profile can be viewed here.
In this guest blog, Laura considers how WikiLeaks evidence has been used in courts and whether documents obtained by WikiLeaks are admissable as legal evidence.
UK government policy is to ‘neither confirm nor deny’ (NCND) the authenticity of unauthorised leaked documents. The rationale for NCND is twofold: firstly, authenticating a leaked document could compound any damage already caused by the leak and secondly it rewards those involved in leaking documents. NCND is applied as a blanket policy because selective commentary would give rise to the supposition that leaked documents whose authenticity was not explicitly denied are implicitly authenticated.
But is the NCND policy binding on courts? How should courts weigh up public interest in state security versus public interest in leaked information, especially given that governments sometimes strategically deploy leaks themselves? Can a court require a government to breach NCND when the information is already in the public domain, when no concerns have been raised about the dangers of further disclosure, and when open discussion is in the interests of justice? And what is the status in law of NCND, particularly regarding leaked documents that purport to be the property of another state? Such questions are illuminated by recent court cases that have debated whether documents obtained via WikiLeaks are admissible as legal evidence.
In 2010, during the mass release of over a quarter of a million US diplomatic cables known as Cablegate, WikiLeaks published a copy of a confidential cable from the US Embassy in London to the secretary of state in Washington DC with the header ‘HMG floats proposal for marine reserve covering the Chagos Archipelago’. The contents indicated that the UK government’s ulterior motive in declaring a Marine Protected Area (MPA) around the UK Overseas Territory of the Chagos Archipelago in the Indian Ocean had been to damage the displaced islanders’ hopes of resettling on the islands. (The MPA also explicitly excludes the US military base on the Chagos island of Diego Garcia, which was why the islands were depopulated in the first place, but that’s another story…)
Lawyers acting on behalf of a group of displaced Chagossians, who had already launched proceedings for judicial review of the MPA, sought to have a copy of the WikiLeaks cable admitted as evidence confirming the government’s ‘improper purpose’. At a preliminary hearing in 2012, the government complained that the islanders’ case was reliant evidentially on a purported copy of a US embassy cable that had been obtained and released unlawfully by WikiLeaks. However, the judge ruled that – notwithstanding NCND – the WikiLeaks copy of the US Embassy cable could be admitted as evidence, although he warned that it would be up to the court to determine whether or not it was indeed a replication of an authentic cable.
In 2013, two High Court judges similarly determined that NCND was insufficient reason to refuse to admit WikiLeaks evidence for four reasons: firstly, it is not clear that NCND applies to documents that are the property of another government; secondly, NCND allows for certain exceptions; thirdly, NCND is not binding on courts; fourthly, in this case the interests of justice would overrule NCND because the alternative would in principle enable the government to conceal ulterior motives. Nevertheless, they agreed with the government that the Vienna Convention on Diplomatic Relations precluded admission of the WikiLeaks copy of the US Embassy cable.
In 2014, three Court of Appeal judges found instead that the WikiLeaks copy of the US Embassy cable should have been admitted as evidence because the ‘inviolability’ of diplomatic correspondence guaranteed by the Vienna Convention means freedom from interference rather than inadmissibility as evidence. However, they concluded firstly that this would have made no difference to the outcome of the case (because it did not definitively corroborate the allegations of ‘improper purpose’), and secondly that admitting the copy of the cable as evidence would not necessarily imply authentication of the document or the veracity of its contents.
So the outcome was somewhat counter-intuitively a victory both for the UK government and WikiLeaks. The outcome was unequivocally yet another defeat for the Chagossians, although this case has given the legal team access to documents that could give rise to other court cases in the near future. The MPA has been upheld, at least until later this year, when the Permanent Court of Arbitration is expected to rule on the Mauritian government’s challenge to the MPA under the United Nations Convention on the Law of the Sea (UNCLOS). Watch this space!
Jeffery, L. 2014. Neither confirm nor deny: WikiLeaks evidence and the Vienna Convention on Diplomatic Relations in the judicial review of the Chagos Marine Protected Area. Anthropology Today 30, 3: 9-13.