But taken overall the excuses produced one by one begin to wear thin. The High Court, constrained as to detail 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), nevertheless commented that the role of the UK in Binyam Mohamed’s torture went ‘far beyond that of a bystander’ and triggered a criminal investigation into complicity on the part of at least one officer from MI5 in Mohamed’s torture. 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 the UK 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 British 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.
Carefully and painstakingly for a number of years since 9/11, a number of significant international organisations have unpicked what the nations of the world have done in response, and yet there is no sign that the resultant documents are even read by our government.
The relevant special rapporteur reporting to the UN General Assembly in February 2009 on this issue (the promotion and protection of human rights and freedoms while countering terrorism) selected the UK for special mention, for having interviewed detainees held incommunicado by the Pakistani Inter-Services Intelligence or ISI (held in so-called safe houses and tortured) and for its active participation, through the sending of interrogators or questions or intelligence personnel to places of detention where the rights of detainees were being flagrantly violated. The special rapporteur considered 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 special rapporteur further considered 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 these views in order to 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 the special rapporteur is only one of a number of UN and EU bodies to have shone a light on these practices and all include Britain 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, in the name of ‘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 to 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.
How do such stinging condemnations by international bodies play out in the current day-to-day behaviour of Britain and its foreign relations? The answer is extraordinary: there is no coherent reaction, and the government remains unmoved by criticism. Take Syria, for instance, the country which was most comprehensively exposed as a state that practised torture with the connivance of the Americans, when the Canadian Maher Arar was finally released from the twelve months of torture that followed his rendition. The Canadian government conducted a soul-searching public inquiry and paid Arar millions of dollars in compensation in acceptance of its contributory role. In April 2009, 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’.
To understand that each episode is regarded by the government as a matter of importance ‘at the moment’—i.e. finite and distinct that will no doubt blow over—it is vital to appreciate that in the handful of cases about which we know something, such knowledge has come to light 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 human ransacking in 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, in files sent from the United Kingdom. He was considered by the authorities in America, Britain, Morocco and Pakistan to be a piece of flotsam whose disappearance would never be noticed and about whose fate state secrecy in whichever country involved would be forever guaranteed, being consolidated ultimately in his shipment to Guantánamo, outside, it was believed, the reach of the law. That these assumptions were ever contradicted came about as the result of a series of separate events, step by step, each step entirely a matter of chance.
First came the early images of Guantánamo, whereby the short-sighted triumphalism of the Americans, wanting to broadcast their images of dehumanised captives, failed to anticipate the efficacy of those images to provoke an entirely different reaction.
In Tipton in the West Midlands in January 2002, a young British man called Habib Rasul saw on television those first images of orange-suited detainees in Guantánamo just as a reporter from the Sunday newspaper of MI5’s choice arrived at his door to inform him that his brother Shafiq was being held there. So much for state secrecy. Habib, a student whose political science project had been the lawless West Midlands Serious Crime Squad in the 1970s and its success in achieving the wrongful conviction of scores of innocent men, determined that there must be a legal inroad. He found lawyers in the UK, who in turn could now provide 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.
And
