May 21, 2010
Some horrors may await us on the economic front when George Osborne, the new Chancellor of the Exchequer, finishes sharpening his scythe, but for those of us who care about human rights and civil liberties, and who have been aghast for the last 13 years at the Labour government’s paranoid, cruel and chaotic anti-terror legislation, its obsession with secret evidence, control orders and imprisonment without charge or trial, its authoritarian contempt for legitimate protest, and its Big Brother approach to surveillance, the arrival of the Tory-Lib Dem coalition government has so far been a breath of fresh air.
Beyond the easy targets — the hated ID card scheme, for example — the new government has reacted well to two early tests of its promise to tackle Labour’s record on terrorism. This was a significant target for the Liberal Democrats (who actively opposed the use of secret evidence and control orders, and called for an inquiry into British complicity in torture at their conference last autumn), and this latter topic was also a personal obsession of William Hague’s, even if the party as a whole — with a few other notable exceptions (David Davis and Andrew Tyrie, for example, and Baroness Neville-Jones in the Lords) — supported Labour’s domestic anti-terror agenda rather enthusiastically.
The first test: not overreacting to a difficult decision regarding the deportation of two terror suspects
On Tuesday, the government passed its first test, responding with admirable restraint to the thorny problem of a judge refusing to allow the deportation of two Pakistani terror suspects, because they face the risk of torture in Pakistan.
On the campaign trail, David Cameron had made repealing the Human Rights Act one of his major manifesto pledges (and replacing it with a BNP-sounding British Bill of Rights), but when every misguided xenophobe with access to a newspaper column (or a comments page) began wailing about repealing the HRA immediately, the government refused to be drawn.
Home Secretary Theresa May promised a commission to investigate the HRA, while Nick Clegg warned that the Act was "an absolute constitutional cornerstone" and a "fundamental guarantor of rights to the British citizen," adding, bluntly, "Any government would tamper with it at its peril." Crucially, however, the government did not threaten to appeal the decision, seemed content to keep the men in question under surveillance, and no doubt quietly accepted that bashing the HRA as an election tool was not the same as having to deal with the real issues.
These, to be clear, are that the legally binding European Convention on Human Rights (PDF) and the UN Convention Against Torture are the documents that prohibit any involvement whatsoever with torture (including sending foreign nationals back to countries where they face the risk of torture) and the HRA (which largely attempted, with some success, to keep ECHR issues in-house rather than having cases perpetually being referred to Strasbourg) is not to blame.
As a result, although we can no doubt expect the government to attempt to follow Labour’s dubious policy of establishing "memoranda of understanding" with human rights-abusing regimes (which purport to guarantee the humane treatment of those returned, even though that is scarcely credible), we will also, hopefully, see real movement (as signalled on Sunday) regarding putting terror suspects on trial, by allowing the use of intercept evidence in regular courts.
This is what numerous legal experts have been advising for years (PDF), and it is clearly time that we joined the rest of the world in finding a way to do this while protecting intelligence agents and sources, rather than continuing to rely on the use of secret evidence, on special advocates who represent the accused in closed sessions, but are unable to tell their clients anything that they have heard, and on the whims of judges in a special terror court.
The second test: a judicial inquiry into British complicity in torture
On Thursday, the government passed its second test, when William Hague, evidently preempting attempts by FCO and intelligence officials to cajole him into silence, announced that he was ordering a judicial inquiry into British complicity in torture and rendition since September 11, 2001. As the Guardian explained, his remarks "appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work." In a follow-up article, also in the Guardian, Ian Cobain laid out what might be hoped for from the inquiry. "It is expected to expose not only details of the activities of the security and intelligence officials alleged to have colluded in torture since 9/11," he wrote, "but also the identities of the senior figures in government who authorised those activities."
As was revealed last June, any detailed inquiry will be required to follow a chain to the very top of government, because, as the Guardian explained at the time, Tony Blair "was aware of the existence of a secret interrogation policy which effectively led to British citizens, and others, being tortured during counter-terrorism investigations."
The Guardian added that Britain’s post-9/11 policy "offered guidance to MI5 and MI6 officers questioning detainees in Afghanistan whom they knew were being mistreated by the US military," providing intelligence agents with written instructions that they could not "be seen to condone" torture and must not "engage in any activity yourself that involves inhumane or degrading treatment of prisoners," although "they were also told they were not under any obligation to intervene to prevent detainees from being mistreated." As stated in the policy, "Given that they are not within our custody or control, the law does not require you to intervene to prevent this."
The Guardian proceeded to explain that the policy, which was "set out in written instructions sent to MI5 and MI6 officers in January 2002," also informed them that they "might consider complaining to US officials about the mistreatment of detainees 'if circumstances allow,’" and noted that Tony Blair had "indicated his awareness of the existence of the policy" in 2004, shortly after the Abu Ghraib scandal broke.
The exact form the inquiry will take has not yet been established. William Hague stated only, "We will be setting out in the not-too-distant future what we are going to do about allegations that have been made into complicity in torture. We will make a full announcement that we are working on now. We want a judge-led inquiry." It is, for example, not known how much of the evidence will be presented publicly. The Daily Mail suggested that "Much of the evidence will be taken behind closed doors and it is is not clear whether a full report will be published — though a summary is expected to be made public."
However, even with these limitations, an inquiry that focuses, as anticipated, on cases including that of Binyam Mohamed would be extraordinary, given the extent to which the Labour government tried to hide its knowledge of the British resident’s torture in Pakistan, as well as the persistent denials by senior officials, and by the heads of MI5 and MI6, that any collusion in torture took place.
Set against this are the grave concerns and criticism expressed by two High Court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, who chastised the government for complicity in "wrongdoing" after a judicial review in August 2008, and then spent 18 months arguing that the public had the right to know what was contained in 42 documents sent to the British by their counterparts in US intelligence, and the criticism levelled at MI5 in February this year by Lord Neuberger, the Master of the Rolls, in a Court of Appeal hearing that finally led to the release of a summary of those documents. On that occasion, Lord Neuberger accused MI5 of having "deliberately misled parliament."
There is much more to Binyam Mohamed’s case alone, of course, especially regarding the extent to which the government knew about his imprisonment for 18 months in Morocco — and, as has been alleged, sent both a spy and an informer to talk to him — as well as British complicity in the rendition and torture of other men who ended up in Guantanamo, including Shaker Aamer, the British resident who is still held, and Bisher al-Rawi and Jamil El-Banna, who were seized by the CIA in the Gambia on a business trip, after an exchange of intelligence between the US and the UK.
There are also many other cases, primarily in Pakistan, but also in other countries, including Bangladesh, Egypt, the United Arab Emirates, that have surfaced over the last few years, in which the torture of British citizens appears to have been very deliberately sub-contracted to foreign torturers. Ian Cobain exposed many of these stories for the first time, I have also discussed them (see, for example, here), and they have also been examined by Human Rights Watch and by Cageprisoners, in a report, "Fabricating Terrorism II" (PDF) that was published in April 2009.
Another champion of accountability, David Davis MP, played a major role in exposing British complicity in torture, when, last July, he used the protection of parliamentary privilege to tell the House of Commons how, in 2006, the government and the security services allowed Rangzieb Ahmed, a British citizen, to travel to Pakistan, where they "suggested" to the Inter Services Intelligence Directorate (ISI), Pakistan’s most notorious intelligence agency, that he should be arrested. As he explained, Pakistani intelligence would have been "aware that 'suggesting’ arrest was equivalent to 'suggesting’ torture." Ahmed was later returned to the UK to face a trial, at which evidence of his torture — including having three of his fingernails ripped out — was concealed, and Davis was not only appalled by this particular cover-up, but also told the House, bluntly, "I cannot imagine a more obvious case of the outsourcing of torture."
For now, those of us who have been calling for an inquiry can only hope that its revelations will not be drowned in the secrecy that was such a hallmark of the Labour government, and that, as Philippe Sands urged yesterday, it will be "deep and broad and as open as possible." After eight years of largely hidden complicity in the Bush administration’s "War on Terror," and the recent and compelling evidence of Britain’s own policy of outsourcing torture, we need answers, and we need them to be both frank and clear.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, and currently on tour in the UK), my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.