Torture, Secrecy and the British State

[Peter Presland]

"Rasul and his fellow British detainees reported that as they boarded the plane in Guantánamo to return to Britain, they were told by the Foreign Office representative accompanying them: ‘Make sure you say that you were treated properly.' "

Article from the current edition of The London Review of Books, with apologies for its length - but it the best I have seen about the subject of this thread.

Gareth Peirce is a well known human rights lawyer - and a poor one since she provides all preliminary advice pro-bono. She was played by Emma Thompson in the 1993 Film "In the name of the father" . She is one of humanity's real heroes

Seven years ago now, in January 2002, came the first shocking images of human beings in rows in aircraft, hooded and shackled for transportation across the Atlantic, much as other human beings had been carried in slave ships four hundred years earlier. The captor’s humiliation of these anonymous beings – unloaded at Guantánamo Bay, crouched in open cages in orange jumpsuits – was deliberately displayed. The watching world needed no knowledge of international humanitarian conventions to understand that what it was seeing was unlawful, since what is in fact the law precisely mirrors instinctive moral revulsion. The definitions of crimes against humanity, and war crimes, are not complex: ‘Grave breaches of the Geneva Conventions of 12 August 1949’, including ‘torture or inhuman treatment’; ‘wilfully causing great suffering, or serious injury to body or health’; ‘wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement.’ What the world could instantly see for itself in those images was that this was the trafficking of human beings. It was not a manifestation of the Geneva Conventions at work; it was neither deportation nor extradition: far worse, it was transportation from a world and to a world outside the reach of the law, and intended to remain so. In those two worlds, crimes against humanity were to be perpetrated, but, unlike the images of transportation, they were intended to remain for ever secret. That they have not is largely the result of chance.
Moments of major moral and political importance often come about accidentally if at all, and how they are resolved depends entirely on the sustaining of public attention. We are presented with such a moment now. It has come about in large part through the case of Binyam Mohamed, as in the High Court a battle still continues to discover even part of the truth about the relationship between British intelligence and the Americans and Moroccans, who for 18 months slashed the most intimate parts of his body with razors, burned him with boiling liquids, stretched his limbs causing unimaginable agony, and bombarded him with ferocious sound. At the same time, other evidence, too much to be swept aside, has been accumulated by dedicated journalists of men tortured just as horrifically by officials in Pakistan, who exchanged information with their British counterparts. Combined, these two sets of so far partial revelations have provided Britain with a moment of acute discomfort, sufficient to provoke the prime minister to announce the need for new guidelines for interrogations conducted by the intelligence services. This moment of official embarrassment should make us in Britain feel the greatest disquiet. We inhabit the most secretive of democracies, which has developed the most comprehensive of structures for hiding its misdeeds, shielding them always from view behind the curtain of ‘national security’. From here on in we should be aware of the game of hide and seek in which the government hopes to ensure that we should never find out its true culpability.
The opportunity for concealing the extent of our country’s collusion with those who have carried out the actual torture is increased by three factors: first, the nature of most of the techniques used (‘stealth methods’, so called); second, the choking powers of secrecy available to our government; and third, the haphazard way in which information about these matters emerges, when it emerges at all, which hampers our ability to ask the most basic questions.
We are now in the endgame of a cycle that started in late 2001. In the US the Obama administration, pushed by Freedom of Information Act inquiries, is releasing much of the most obscene evidence of what the previous administration consciously and specifically permitted. Storm clouds of retribution are gathering around those who have perpetrated crimes against humanity. What needs to concern us in Britain is this: while those first images put out by the US military in January 2002 gave a glimpse of what the US was doing, and prompted a seven-year public debate there about the Bush/Cheney/Rumsfeld redefinition of torture and abusive practices, here we remain almost completely in the dark about the part played by our intelligence services, and in turn by our Foreign Office and our Home Office and our ministers. There are no dramatic images to jolt us into comprehension and there is no release whatsoever of the information that US citizens claim it as their right to know. Yet we were there at those sites of unlawful confinement; in many cases it was we who told the Americans where to locate British nationals and British residents for rendition; it was we who provided information that could be and was used in conditions of torture; and it is we who have received the product.
Torture is the deliberate infliction of pain by a state on captive persons. It is prohibited and so is the use of its product. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment emphasises that there are no exceptional circumstances at all justifying its use, whether state of war or threat of war or any other public emergency; none of these may be invoked as a justification. Orders from superiors are explicitly excluded as a defence, and moreover the Convention requires that wherever the torture occurred and whatever the nationality of the torturer or victim, parties must prosecute or extradite perpetrators to a country that is willing to prosecute them.
Whatever its position in respect of denying knowledge of the Moroccans’ treatment of Binyam Mohamed or of the most extravagant atrocities in Pakistan, the UK will undoubtedly try to remove itself several steps further from any knowledge of what has been done in secret sites by the US. But the tortures of which it is impossible that UK officials were not aware, those which have characterised US treatment of prisoners in Afghanistan and Guantánamo, belong to families of torture descended from Western European and particularly British military punishments. Those who have categorised these things place them in the ‘lesser’ tradition of stress torture; not because they are less painful, but because they leave less of a visible mark. Long-term restraint in virtually any position will produce agonising muscle pain. Forced static standing causes ankles and feet to swell to twice their size within 24 hours. To move is to be in extreme pain; large blisters develop; the heart rate increases and some people faint. The kidneys eventually shut down. Prisoners suspended by the wrists have their feet touching the ground so that the weight is shared between feet and wrists, but this serves only to increase the time prisoners may be suspended, extends the pain and delays the infliction of permanent injury. That matters in what is known as stealth torture. It was in Mandate Palestine that British soldiers and police after 1938 subjected prisoners to forced standing, forced sitting and choking with water, exposure to extremes of heat and cold, and suspension. These tortures were clean and allowed for plausible denial; today the interrogation style of the Israeli GSS – called ‘shabeh’ by its victims – continues to draw on them and on the techniques used by the British in Northern Ireland. They include sleep deprivation, positional tortures, exhaustion exercises, exposure to extremes of temperature, the use of noise and ‘chair’ torture. It is from these and their predecessors that the Americans have drawn for the last seven years.
In 1997, Nigel Rodley, then the UN special rapporteur on torture, very specifically reaffirmed his condemnation of these methods as torture:

Each of these measures on its own may not provoke severe pain or suffering. Together – and they are frequently used in combination – they may be expected to induce precisely such pain or suffering especially if applied on a protracted basis of, say, several hours. In fact, they are sometimes apparently applied for days or even weeks on end. Under those circumstances, they can only be described as torture.

Since these have been the techniques most repeatedly deployed since 2001 on US sites where we know British personnel have been present, we need to establish that our government acknowledges that they are indeed torture. All have been described in detail by those British detainees who have returned from Guantánamo and yet their testimony has been disregarded by those in government departments whose job it is to know. We had no difficulty understanding that these methods were torture when our enemies used them: during the Second World War we had no difficulty comprehending that the ordeal of British POWs forced by the Japanese to stand for days in a tin hut in the brutal heat was a war crime; and we recognised that in Stalin’s gulags standing and sitting while being deprived of sleep was torture too. And yet Britain still, in 2009, appears to have the greatest difficulty in admitting that what was done routinely in Afghanistan and at Guantánamo Bay was torture, and even greater difficulty in admitting that we knew all along that it was happening. By 1 August 2002, White House lawyers were itemising techniques that would not in their view constitute torture under the Federal Torture Act, including forced standing, hooding, starvation and thirst, sleep deprivation, the ‘frog crouch’, the Israeli shabeh and extreme noise.
We of all nations must have immediately recognised these techniques for what they are and must have known that they were prohibited, since we were disgraced for employing them by the European Court less than 30 years ago. In August 1971 British soldiers arrested 342 men in Northern Ireland claiming that they were IRA suspects. To force their confessions, 12 of them were taken to a secret site and subjected to the now notorious five techniques (forced standing, hooding, sleep deprivation, starvation and thirst, and white noise). Most of the men later reported experiencing auditory hallucinations; the interrogators referred to the room used for noise as the ‘music box’, and were aware that the detainees were exhibiting distorted thought processes. The Republic of Ireland took the UK to court in Strasbourg for their use of these methods and Britain gave an unconditional promise never to use them again. And yet since November 2001, knowing that these techniques were being adopted (and even enhanced) in our joint operations with the US, our ministers, ministries and intelligence personnel have behaved as if a blind eye could lawfully be turned while at the same time availing themselves of the same sites and sharing the product of those illegal methods.
In official advice sent to MI6 personnel in Afghanistan in January 2002 concerning their own interrogations of detainees held by the US it was stated: ‘You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given that they are not within our custody or control, the law does not require you to intervene to prevent this.’ This advice was then hedged with homilies: British personnel ‘cannot be party to such ill treatment’ and should not condone it. Yet as any first-year law student knows, encouragement by any number of indicators can expose the bystander to as much criminal liabilty as the main perpetrator.
The Intelligence and Security Committee, quoting this advice in the first of its two inquiries into the role of the intelligence services in ‘the handling of detainees’ since 2001, nevertheless blacked out in its report what the ‘ill treatment’ consisted of. Yet this is the only body in existence with the power to inquire and give us answers about the intelligence services. Staggeringly, not only do we therefore know nothing of what the intelligence services have actually witnessed in Afghanistan, but in each of the committee’s inquiries into their involvement or otherwise in torture, the government’s witnesses and the committee in turn appeared to miss entirely the wider legal and moral point. Instead, they focused on individual errors of judgment, even though members of the intelligence services were present during unlawful transfer and confinement: that is, in situations comprehensively meeting the definition of internationally prohibited crimes against humanity.
Equally disturbingly is that later in 2002, some months after MI6 sent its advice, the recently arrived British ambassador to Uzbekistan inquired urgently of the Foreign Office what its legal justification was for receiving information from Islamic dissidents who had been boiled alive to produce it. Craig Murray records his astonishment on being recalled to London to be told that the foreign secretary, Jack Straw, and Sir Richard Dearlove, the head of MI6, had decided that in the ‘War on Terror’ we should, as a matter of policy, use intelligence obtained through torture by foreign intelligence services. A follow-up memo from a Foreign Office legal adviser in March 2003 explained that it was not an offence to do so. How sound was this advice legally? Morally, there is no question. But what of the encouragement to torture resulting from our enthusiastic receipt of information?
There have been no resignations over any of this. The government on whose watch it has occurred may be vulnerable for other reasons, but at present it seems not for possible complicity in grave crimes. From where does it derive its confidence? Control of information is a powerful tool: the answer must undoubtedly lie in the extent to which the secret state believes it has consolidated and can control any mechanism that might allow discovery and challenge, so that it can rely on its citizens never knowing properly, or often at all.
Since the end of the Cold War, there has been unprecedented worldwide monitoring of man’s propensity to torture, and yet its use has not abated but appears to be thriving. How has this come about? Monitoring of torture depends on two strategies: exposing it to public censure through careful documentation, and holding state agents responsible for torture conducted on their watch. The first has encouraged torturers to adopt techniques that are less visible and hence harder to document. The second has encouraged politicians to seek acceptance of their methods from a public that condemns those who are soft on terrorism. In this country, in fact, the government hardly needs such acceptance, because of the additional and crucial factor that the public is unlikely to be given sufficient information to trigger its revulsion.
Whether we will in this country ever properly know the extent of British participation in criminal acts of the utmost seriousness should be a burning issue. We should not take for granted that court cases or a judicial inquiry will tell us what we need to know about the complicity of our government in crimes against humanity. The Baha Mousa inquiry into the activities of the British military in Iraq will not touch on the interaction of the British state with the US or the intelligence services, or with any torturing foreign state. Instead, the government will claim, as it does with ever greater frequency, that any issue relating to the intelligence services, or to the conduct of diplomatic relationships, should be confined entirely to special courts, or the evidence heard in large part in secret. The use of these procedures expands daily.
This is not the way that the most basic principles of democratic responsibility and due process should be exercised in any circumstances; even less so when the issues are of such moral seriousness and public importance. To understand how we find ourselves in this position, worse than that of any other comparable democracy, we need first to understand how secrecy has come to be justified by successive governments, and to understand how the use of obfuscatory language has taken the place of informed democratic debate.
We still live, in the 21st century, in a world whose political configuration is that of nation-states. For those exercising political power, the matter of a nation’s security, its ‘national security’, is of immense importance. The state is invariably referred to as a source of the security necessary for protection against threats from others, or from internal violence, and this idea is shared by and large by the population. There may be disagreement about the existence or gravity of any alleged threat and the appropriate response to it, but the concept of the state as the protector and guarantor of security is seldom doubted. ‘Security’ is such a dramatic yet ill-defined concept that those in power are able to curb criticism and shut down debate by invoking it and by claiming to possess vital knowledge (which cannot, of course, be safely revealed) to support their actions or policies. Those in power draw on traditions of deference and non-partisanship when it comes to security, making it unnecessary for governments to provide reasoned justification when security is said to be at stake. There is therefore a dangerous circularity to the entire process. Deference is fed in part by ignorance, and ignorance is fed in turn by claims that secrecy is indispensable. The public receives only the barest of justifications, which it is supposed to take on trust, while the government machine ignores or short-circuits normal democratic processes.
The language used is itself a critical contributing factor. After the Second World War the US was the first nation to transform traditional terminology, moving from ‘defence’ to ‘national security’ as the guiding ethos of its foreign policy, a conscious choice of words intended to reflect the expansion of the US’s desired role in world affairs, conflating a myriad different political, economic and military factors so that developments halfway round the world could automatically be construed as having a direct impact on the US’s core interests. Effectively, every development the world over came to be perceived as potentially crucial, so that an adverse turn of events anywhere endangered the United States. American foreign policy goals came to be translated into issues of national survival, and the range of threats became limitless.
A similar mindset came to be consolidated in Britain by a quite separate route. In the wake of the Second World War the members of the Council of Europe, then only a few nations, committed themselves to a treaty, the European Convention on Human Rights, which provided for individual petition and was designed to give teeth to the enforcement of those rights. Several rights had caveats attached to them in case of exceptional circumstances, one of which was ‘national security’. This was a new term in Europe: the phrase used by Britain and France until then had been ‘defence of the realm’, which reflected the most extreme threat a nation might face – that is, war. The British lawyers responsible for drafting the European Convention had been affected, it would seem, by the new postwar US conception, and adopted it wholesale.
While it may be that we are too far down the road to reclaim the old terminology, we should nevertheless insist on confining the application of the term ‘national security’ to core principles, including the protection of democracies from foreign invasion or manipulation, i.e. the ability to defend nation-states against military attack. In the minds of many people, however, and particularly in abbreviated media discussion, a further conceptual leap has taken place, so that secrecy and national security have now come to be seen as synonymous.
We allowed this state of affairs to come about through sheer neglect. Britain was the last of the parliamentary democracies to put any of its security and intelligence agencies on a statutory footing, and even into the 1990s it obstinately maintained the extraordinary fiction that MI6 did not exist. When belatedly, in the mid-1990s, there was talk of bringing the three intelligence services, MI5, MI6 and GCHQ, into a structure of accountability, a limited degree of oversight was given to a Parliamentary Committee on Intelligence and Security. But such parliamentary debates as there were failed to address fundamental questions, in particular those of limitation: what kinds of conduct do we as a society wish to declare off-limits? There has never been any sign in this country that any government has understood the need to talk through the issues involved, let alone promote public debate. So far as standards or controls were concerned, it was argued at the time that these were inappropriate and unnecessary because the organisations were controlled by their parent departments in ministries and required approval by ministers for all contentious actions.
Although the legislation was in a narrow legal sense addressed to bringing the intelligence services onto a statutory footing, the wider political dimension was that an opportunity was there – it was missed – for the law to provide a primary statement about how our society believed its international dealings in particular ought to be conducted.
The Parliamentary Committee itself, a very British affair composed of high ranking members of the House of Commons and House of Lords who had been security cleared, was left without any coherent brief in relation to oversight and was explicitly banned from receiving information about particular operations. Its primary concerns related to finance and administration. Yet, in the face of what in any questioning society might threaten the collapse of a government, it is this committee, operating as it does on such a narrow remit within an ethos of secrecy, that has been tasked by the prime minister with reordering the ethical basis of the intelligence agencies, seemingly without any comprehension on his part of the scale of what is required. This, it seems, is intended to act as our national catharsis. Yet we are unlikely to find out any meaningful detail. It is an irony that the death of Baha Mousa, killed by the military in a war zone, was nevertheless considered at an inquest and in open court martial.
If we look carefully there is sufficient evidence that British foreign policy, and indeed its domestic policy, have for many years been conducted in a way that is in violation not only of our own law and of international law, but which, far worse, has led us to be complicit in torture and in the commission of internationally prohibited crimes against humanity. No more serious circumstance could come to pass. At present, instances are explained away – when they briefly, accidentally come into view – as mere blips; an individual officer, for example, may not have been properly briefed on the prohibited techniques being used by the Americans. But the excuses begin to wear thin. The High Court, constrained to date by the government’s claim that secrecy is needed in the interests of national security (to enable the free flow of information with our US ally), has nevertheless commented that the role of the UK in Binyam Mohamed’s torture went ‘far beyond that of a bystander’. That the excuses are produced individually, and are intended to remain separate, is part of their efficacy. Who is putting the excuses together? Whose task is it to investigate? What is the evidence that we ourselves can piece together? Whose job is it to find the evidence, in a situation where it has become too embarrassing and uncomfortable not to be seen to be looking for it?
The fact of the matter is that when it comes to the most important of crimes, such as the ones discussed here, individual citizens in any country can initiate a prosecution provided they assemble evidence sufficient to obtain a summons. (Even now, a number of former senior military or political figures enter this and other countries with considerable caution.) If a more formal reckoning is to be made, access to evidence is just as fundamental.
The clear intention of the government is to bury any opportunity for public discussion before it starts. It is all the more critical therefore that we demand that it acknowledges the moral as well as the factual and legal dilemmas in which we are hopelessly entangled. As good a starting-point as any is to insist that it accept the severe condemnations issued by institutions and organisations that we are committed by international treaty to respect – and in the case of the European Court of Human Rights to obey – and in whose reports the United Kingdom has been singled out for criticism of unusual severity.
The special rapporteur reporting to the UN General Assembly in February this year on this issue (the promotion and protection of human rights and freedoms while countering terrorism) picked out the UK for having interviewed detainees held incommunicado by the Pakistani ISI (they were being held in so-called safe houses and tortured) and for its active participation, through the sending of interrogators or questions or intelligence personnel to witness interrogations, in actions that violated the rights of detainees. The rapporteur considers that such behaviour ‘can be reasonably understood as implicitly condoning such practices’, and that ‘the continuous engagement of foreign officials in some instances constituted a form of encouragement or even support.’ The rapporteur states that ‘the active or passive participation by states in the interrogation of persons held by another state constitutes an internationally wrongful act if the state knew or ought to have known that the person was facing a real risk of torture or other prohibited treatment, including arbitrary detention. This, of course, is what has been staring us in the face in Afghanistan and Guantánamo Bay.
We need to take note of this judgment, so that we can appreciate how out of step Britain is with the true moral and legal universe. It is impossible forever to contrive excuses when the objective assessment of rendition, for instance, is this: ‘While this system was devised and put in place by the United States, it was only possible through collaboration from many other states.’ We should remember that it isn’t only the special rapporteur who has shone a light on these practices; Britain is invariably included as a primary player in inter-state complicity.
The special rapporteur emphasises the position in law as well as morality. States ‘are responsible where they knowingly engage in, render aid to or assist in the commission of internationally wrongful acts, including violations of human rights. Accordingly, grave human rights violations by states . . . should therefore place serious constraints on policies of co-operation by states, including by their intelligence agencies, with states that are known to violate human rights.’ This clearest possible statement of the overriding necessity of observing human rights cannot coexist with the claim constantly made that our country’s paramount commitment must be the sharing of information with regimes, however heinous they may be, if it concerns the ‘suppression of terrorism’.
We know that UK intelligence personnel conducted or witnessed more than two thousand interviews in Afghanistan, Guantánamo and Iraq. It is entirely inconceivable that any proper legal advice or any responsible government official could have considered for a moment that, for example, detention in the circumstances that pertained in Kandahar or Bagram in Afghanistan, or at Guantánamo Bay, was anything other than arbitrary detention outside of the law, and that these conditions were designed to break the human spirit for the purpose of obtaining information.
What is the effect of such condemnations on the current behaviour of Britain and its foreign relations? The answer is extraordinary: there is no coherent reaction, and the government remains unmoved by the condemnation of international bodies. Take the case of Syria, for instance, the country which was most comprehensively exposed as a torturing state with the connivance of the Americans, when the Canadian Maher Arar was finally released from the 12 months of torture that followed his rendition. The Canadian government conducted a soul-searching public inquiry and paid Arar millions of dollars in compensation. As recently as the beginning of April, in contrast, Bill Rammell, our Foreign Office minister with responsibility for the sharing of information about terrorism, visited Damascus despite the disappearance in Syria weeks before of two British citizens. The Foreign Office, attempting to reassure the families that efforts were being made to find them, said that they had emphasised to the Syrians that ‘this is a big issue at home at the moment.’ Notice that this episode is regarded by the government as a matter of importance ‘at the moment’, something finite and distinct that will blow over.
It is vital to appreciate that in the handful of cases about which we know something, this knowledge has come only through an extraordinarily slow-moving series of events in which the veils of secrecy have been partially lifted only by accident, and that at every stage our government has fought against there being any revelation at all. This was true in the case of Binyam Mohamed, seized in the wholly lawless world of Pakistan in early 2002 and delivered by the Americans to Morocco. His brutal interrogation was based in large part on material provided by British intelligence, on files sent from the United Kingdom. He was considered by the authorities in America, Britain, Morocco and Pakistan as a piece of flotsam whose fate would never be noticed. His shipment to Guantánamo, which it was believed was outside the reach of the law, was intended to seal his fate. That it did not was the result of a series of events that came about step by step, at each step entirely by chance.
It was true, too, in the case of Shafiq Rasul. In Tipton in the West Midlands in 2002, a young British man called Habib Rasul saw those images of orange-suited detainees in Guantánamo on television just as a reporter from the Sunday newspaper of MI5’s choice arrived at his door to announce that his brother Shafiq was being held there. So much for state secrecy. Habib, a student whose political science project had concerned the West Midlands Serious Crime Squad in the 1970s and its success in achieving the wrongful conviction of scores of innocent men, decided that there must be a legal inroad. He found lawyers in the UK, and they now had what lawyers in the US were desperately seeking, a named litigant to challenge the assertion that habeas corpus could not apply to those held at Guantánamo. Two and a half years later the US Supreme Court determined in Rasul v. Bush that the orange jumpsuited men intended to remain for ever outside the reach of the law in Guantánamo Bay could see security-cleared American lawyers.
So it was that in 2005 Binyam Mohamed could give an outside visitor an account of his rendition and torture, and of the complicity of the British at every stage; and so it was that, in 2009, on the basis of this account, his lawyers in the UK could construct a legal proposition of significance: if the British intelligence services knew that he had been tortured, and that the torture had produced a confession which was being used to underpin a prosecution in the mockery of a court that called itself the Military Commission in Guantánamo Bay, then British Intelligence must have evidence that would assist his release. Since then a sorry saga of misleading evidence by ministers, lost files, overlooked memoranda and forgotten vital facts has continued to unfold. Mohamed, mercifully, has meanwhile been returned from Guantánamo. The principle that a foreign national could return here, to the country in which he had lived, was contested tooth and nail by our government.
It was in fact a further twist of fate in 2006 that finally forced the government to change its position on the issue of return. As is now well known, two law-abiding, innocent non-nationals, both permanent residents of this country, travelled to Gambia in November 2002 to set up a business there. One of their party, a British citizen, returned. Those without British nationality were seized by the Americans, taken to Afghanistan, subjected to torture and then transported to Guantánamo Bay. The Foreign Office denied it had any duty to press for the return of the two men, and a Foreign Office affidavit presented in court declared that ‘a state making such a request may risk losing credibility with the state to whom it is made, such that it will not be taken seriously when it seeks to influence the behaviour of that state in relation to other matters of legitimate concern.’ That statement was made in 2006 (consider how long we had, by then, been aware of US practices), and emphasised that ‘the UK government attached considerable weight to public and private assurances from the US government that no torture is being practised at Guantánamo. The US is a close and trusted ally, with a strong tradition of upholding human rights.’
Britain did not want non-citizens back even if it was the only safe place they could go: one of these men was a stateless Palestinian, the other an Iraqi national. There it would have ended but for an absurd error of judgment on the part of the intelligence services. Litigation for the two men, Bisher Al Rawi and Jamil El Banna, was brought against the Foreign Office, the Home Office and the intelligence services; the first two responded in writing to deny the claim that they had demanded the arrest of the pair by the Americans. The intelligence services made no reply. ‘Isn’t that enough for your purpose?’ one High Court judge asked at an early hearing: ‘Doesn’t their failure to reply tell you all you need to know for your argument?’
The intelligence services then released telegrams they sent before the men’s departure from the UK to Gambia, in the belief that they would be exonerated since the telegrams did not carry the specific words ‘please arrest.’ Instead, they stunningly demonstrated that the CIA had been tipped off by Britain that one of the men had been about to board a plane to Gambia carrying objects that could have been used as parts of an improvised explosive device (an entirely false assertion) and that they were involved in ‘Islamic extremist’ activity (also completely false). A later telegram, sent the following week when the men had been released and had continued with their journey to Gambia, gave the date of travel of the two men and the flight details, and was followed by a brief memorandum emphasising that neither would be given any UK consular assistance.
Refusing to the bitter end to acknowledge that a wrong had been done, or that it would reverse its position in respect of non-nationals, the government nevertheless suddenly threw in the towel and requested their return, because it feared it would suffer a defeat in the House of Lords and have established against it a precedent it did not want for the future. And so it was that Binyam Mohamed, and a handful of other British residents, came to be accepted for return. Had Mohamed returned at that point on a flight from Guantánamo Bay together with the other British residents and not had to fight for disclosure in the High Court to assist his defence in Guantánamo Bay, it would no doubt still remain the case that it would be his word against the British government’s that he had ever been subjected to interrogative torture with the assistance of Britain in Morocco. After all, the Intelligence and Security Committee investigating that very issue behind closed doors in 2005, assisted by the intelligence services, had found no evidence at all to support the proposition.
The first to bring news from the dark side, Shafiq Rasul, who returned from Guantánamo in March 2004, relived his experience for an entire month in his lawyer’s office, demonstrating to an illustrator with chains borrowed from a nearby market stall the forms of torture that he had endured in Afghanistan and then at Guantánamo Bay. By July 2004 he had produced a hundred-page illustrated account. Every aspect of his detention, every technique of torture used on him, is prohibited as a crime against humanity and yet this, the first account made public from Guantánamo, also appears to have been entirely ignored by the Intelligence and Security Committee when in March 2005 it reported that it had reviewed two thousand interrogations in Afghanistan, Guantánamo and Iraq by British intelligence agents who saw no evil, save for one, who became aware that US interrogators were getting a detainee ready for interrogation by a process that appeared to involve ‘hooding, deprivation of sleep’ and making him stand in ‘painful stress positions’. The committee stated that ‘the treatment and holding conditions of these detainees by the relevant holding authorities are not within the remit of this committee,’ and pointed out that any individual complaints about treatment by MI5 or MI6 should be addressed to the Investigatory Powers Tribunal, a body created to sit in secret. It is a curious detail that Rasul and his fellow British detainees reported that as they boarded the plane in Guantánamo to return to Britain, they were told by the Foreign Office representative accompanying them: ‘Make sure you say that you were treated properly.’
Once we have arrived at a position where acquiescence in crimes against humanity by our government may well have occurred, the state can no longer demand that we acknowledge it as our protector and assert that in consequence the nation’s security is at stake if secrets are revealed. This after all is the thesis on which the claim for secrecy is built. For years the government has sidestepped report after report on these issues by Amnesty International, Human Rights Watch, Justice and Liberty, and has considered the interventions of those organisations as interventions of which they need take no note whatsoever. And for the past seven years the United Kingdom has also shown disturbing indifference to the criticism of international organisations. The European Committee for the Prevention of Torture conducted repeated checks on those interned indefinitely without trial between December 2001 and March 2005. Their observation that those being detained on secret evidence were being driven to madness were ignored; so too was the stinging critique of the European Commissioner for Human Rights. The government carried on with the detentions to the bitter end, months after the House of Lords had declared the legislation to be in violation of the fundamental provisions of the Human Rights Act. Similarly, the concerns the special rapporteur expressed in his report this year appear to have remained unread. Is arrogance the reason that criticisms can never correctly apply to the UK? Are they only for others?
Although UN rapporteurs and UN committees carry (and should carry) authority and influence, without a mechanism for sanction they can be ignored. The European Court of Human Rights, however, commands a different position. The member states of the Council of Europe have a binding treaty commitment to the European Convention on Human Rights and to the court empowered to decide on state violations. In February this year the battleship ‘UK Secret State’ took a hit below the waterline when its system of secret courts considering secret evidence was held by the European Court to breach the rights of a number of applicants, in particular of access to information kept secret yet claimed to justify their detention on the basis of national security. This important decision is now beginning to play out in the myriad cases where it has been estabished that secret evidence has been used, many of which involve the sending of deportees to countries where they have been tortured in the past and will be tortured in the future. In 2008, the UN Human Rights Committee, reporting on the compliance of the UK with its human rights obligations, focused on what it saw, rightly, as our particular vice: secrecy. The Official Secrets Act, it stated, has ‘been exercised to frustrate former employees of the Crown from bringing into the public domain issues of genuine public interest’. It recommends that state organisations should ensure that their ‘powers to protect information genuinely related to matters of national security are narrowly utilised’. Similarly, the special rapporteur considered that the rule of law here is endangered by a power shift towards intelligence agencies that acts ‘precisely to circumvent . . . necessary safeguards in a democratic society, abusing thereby the usually legitimate secrecy of intelligence operations’.
Where we have got to is this: we have a state whose devices for maintaining secrecy are probably more deeply entrenched than in any other comparable democracy. We are condemned for what is already known internationally by the most authoritative of bodies about our activities in the past seven years, activities that are at the very least indicative of criminality, but we appear to be paying little or no heed. Our government’s lawyers are fighting as hard as they can to preserve the secrets of the secret state, however disgraceful; to preserve them in large part because they would occasion disgust in the country, and not for the endlessly repeated claim that they will affect the safety of the realm or paralyse our legitimate democratic allies.
In fact, future attacks on our complacency now come potentially from all sides. In the US whistleblowers are a protected species; sooner or later a close relationship with a British friend will be revealed, perhaps even boasted about. The files covering the prosecutions of torturing interrogators in America are on the internet, officially released for all to see; the Senate Armed Services Committee, shifting gear, has joined with the American Civil Liberties Union to produce, with Obama’s blessing, the last grisly details of what was already largely publicly known.
Gordon Brown has been driven to announce that new standards will be set; but it is too little and it comes too late. To protect ourselves for the future, we need to know what has occurred in the past. We cannot do it on trust; investigations by the bodies empowered to act as our proxy have been triggered, if at all, by the accidental emergence of accounts from victims or their families, and will be allowed to tell us nothing. We need to know what the government and the intelligence services permit themselves and what they do not; MI6, it is said, can, if signed off by the foreign secretary of the day, carry out entirely unlawful actions overseas. Is a foreign secretary’s endorsement a defence in international law against a charge of participation in crimes against humanity? Clearly not: Nuremberg tells us much. If the foreign secretary tells us that he has endorsed some form of participation in or encouragement of crimes against humanity committed by others, that cannot and does not keep him – or the prime minister – out of the dock in the international courts set up for that purpose. What is unsustainable is the belief that what we have been told is enough, and the willingness to accept that we are to be told nothing more.