in 2005 Binyam Mohamed could first give an outside visitor an account of his rendition and torture in 2002, 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. Thereafter a sorry saga of misleading evidence by ministers, lost files, overlooked memoranda and forgotten vital facts unfolded in the UK courts. Mohamed, mercifully, has meanwhile been returned from Guantánamo. But the principle that he, a foreign national, could return to the UK, to the country in which he had lived, had been contested tooth and nail by the British government.
It was in fact a further twist of fate that finally forced the government to change its position on the issue of the return of UK residents from Guantánamo. As is now well known, two law-abiding, innocent non-nationals, both permanent residents of Britain, 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 the UK was the only safe place they could go: one of the men in question 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 lawyers representing the two men 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 the service would be exonerated since the telegrams did not carry the specific words ‘please arrest’. Instead, the official messages stunningly demonstrated that the CIA had been tipped off by British intelligence 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 were on their way to Gambia, gave their date of travel and 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 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 the men’s 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 a handful of British residents came to be accepted for return. Had Mohamed been returned at that point to the UK 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 before an ongoing military commission in Cuba, 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 was Shafiq Rasul, who returned from Guantánamo in March 2004. Rasul 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. Yet this, the first account made public from Guantánamo, would appear 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 entirely 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 it needs to take no note whatsoever. And for the past eight years the United Kingdom has shown a 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 was 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 in 2009 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 2009 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 established 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 again. 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:
