Human rights campaigners have reacted with cautious optimism to the British government’s official announcement of a judicial inquiry into the involvement of the British security services -- MI5 and MI6 -- in torture and rendition since the 9/11 attacks, although many pressing questions are, as yet, unanswered.
These concern the scope of the inquiry, its transparency (or lack of it), how the issue of compensation for the victims of British involvement will be played by the government, whether the inquiry involves a thinly-veiled attempt to gag the courts, which have been openly critical of British involvement in torture, and, perhaps most crucially, whether the inquiry will lead to a genuine renunciation by the government and the security services of any further involvement with torture, which, lest we forget, is not only illegal, but also counter-productive, morally corrosive, and fundamentally unreliable.
First, the good news: After years of obstruction and obfuscation by the Labour government, almost any kind of inquiry would be welcome. However, as Ian Cobain explained in yesterday’s Guardian, although “Leading figures within both parties of the coalition had concluded that an inquiry was inevitable because of the noxious position they had inherited,” without bold action by foreign secretary William Hague, Deputy Prime Minister Nick Clegg and Prime Minister David Cameron, there would either have been no inquiry at all, or something so perfunctory that it would have been both insulting and inadequate.
It was Hague -- critical of the Labour government as shadow foreign secretary, but never quite calling for an inquiry -- who got the ball rolling, in the following exchange on the BBC, which took place shortly after the General Election, when he was asked about an inquiry:
Hague: We have said again in the coalition agreement that we want a judge-led inquiry.
BBC: So will there be an inquiry of some form?
Hague: Yes, both parties in the coalition said they wanted that. Now what we're working on is what form that should take.
According to Ian Cobain, Hague's remarks "came out of the blue". He added, “The intelligence agencies and senior figures in the Cabinet Office were stunned. They had no idea that Hague was about to make such an announcement.”
In a frantic “rearguard action,” senior officials in the security services, noting that the foreign secretary had not committed the government to a judicial inquiry, tried to ensure that a political figure rather than a judge -- “someone more malleable,” in Cobain’s words -- would be appointed to head the inquiry.
The government then consulted senior figures in the judiciary and legal experts in academia, in an attempt to work out what form the inquiry should take. According to Cobain, David Cameron was reportedly committed to an inquiry, and “had been minded to appoint a judge to lead it,” but just a few weeks ago, following talks with senior figures in the Cabinet Office who are closely connected to the security services, “he experienced what one observer called ‘a wobble.’” His sources advised him to be careful not to replicate the Saville inquiry into Bloody Sunday, which “could drag on for a decade or more at a cost of hundreds of millions of pounds.”
It was presumably as a result of the “wobble” that, two weeks ago, a source in the Foreign and Commonwealth Office briefed journalists that the inquiry “would examine only one case -- that of Binyam Mohamed -- and that Cameron had already concluded that the country’s intelligence agencies were guilty only of errors of omission, not commission.”
The source also explained that the plan, at the time, was that “the allegations would be examined briefly, and in secret, by a commission sitting over the summer.” According to Ian Cobain, it was at this point that Nick Clegg weighed in, persuading the Prime Minister that “such a commission would be seen as a whitewash, one that would do nothing to end the mounting litigation,” leading to the announcement on Tuesday that there would be a judicial inquiry, and that it would be led by Sir Peter Gibson, a former appeal court judge who monitors the activities of the intelligence agencies, assisted by Dame Janet Paraskeva, head of the civil service commissioners, and Peter Riddell, a former Times journalist and a fellow of the Institute of Government.
The scope of the inquiry: problems with secrecy and transparency
On the scope of the inquiry, David Cameron signaled that it would be thorough, allowing the victims and their representatives to give evidence during open sessions, as well as representatives of human rights groups. In the House of Commons, he explained that he had asked Sir Peter Gibson to "look at whether Britain was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11," noting that, although there was no evidence that any British officer was "directly engaged in torture,” there were "questions over the degree to which British officers were working with foreign security services who were treating detainees in ways they should not have done."
Nevertheless, the scope of the inquiry is clearly limited by the fact that, as Richard Norton-Taylor explained in the Guardian, “It will not summon witnesses from foreign countries, such as current or former CIA officers. And it will not be able to compel any individuals to give evidence.” Norton-Taylor added that, on Tuesday evening, Whitehall officials said that “former Labour ministers, including Tony Blair, will not be asked to give evidence, even though the treatment of British citizens and residents under investigation happened on their watch,” and even though, as was alleged last June, former Prime Minister 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.”
Moreover, doubts about the transparency of the inquiry are in place from the very beginning, as the Prime Minister also announced that most of the inquiry would be held in secret and stated, "Let's be frank, it is not possible to have a full public inquiry into something that is meant to be secret."
This provoked a sharp response from Reprieve, the legal action charity whose lawyers represent dozens of Guantánamo prisoners. In a statement, Reprieve explained:
The scourge of the last government was the fact that they tried to cover up all the facts relating to torture complicity cases. In particular, the Binyam Mohamed litigation revolved around the government claiming public interest immunity in materials which were simply embarrassing. Now, the Prime Minister is saying that much of this inquiry will be held in secret. The only way in which public confidence is going to be restored in the intelligence services is if the public is able to see this inquiry functioning properly.
Reprieve also took exception to other elements of secrecy surrounding the plans, noting that it appeared that the judge would see all the relevant documents, but that the Prime Minister would decide what will be made public. “[W]e will only see what the government wants us to see,” Reprieve stated, adding, “This was the problem with the last government, and as long as politicians are making these decisions the national embarrassment/ national security problem will remain.”
In its most significant complaint, Reprieve asked why the inquiry will not be held under the Inquiries Act of 2005, noting that the Baha Mousa inquiry (into the murder, in British custody, of a hotel clerk in Iraq) was held under the Act and has been “a model of an inquiry functioning efficiently, including the hearing of secret evidence.” Reprieve lamented that, under the current plan for the torture inquiry, “there is no formal mechanism for civil participation -- so Reprieve and other civil organisations will not be allowed access to documents and proceedings,” whereas, under the Inquiries Act, “document classification review proceedings are sophisticated and rightly allow the judge to balance the need for national security against the need for transparency.”
Questions of compensation – and the urgent need for Shaker Aamer to be returned from Guantánamo
Two of the most pressing questions in the wake of David Cameron’s announcement concern the timing of the inquiry, and the question of compensation for the victims. In the House of Commons, David Cameron complained that the security services were “paralysed by paperwork," primarily relating to a civil claim for damages filed by six former Guantánamo prisoners, and ongoing investigations by the Metropolitan Police into the conduct of intelligence officers in the cases of Binyam Mohamed, Shaker Aamer, and a third man who has not been publicly identified, but who may well be Rangzieb Ahmed, the British citizen, reportedly tortured in Pakistan, who has just been given leave to appeal his conviction in December 2008, in a trial in which all mention of his alleged torture was excluded.
Announcing the inquiry, David Cameron stated that it would not begin “until civil claims have been resolved through mediation or settled with compensation,” as the Guardian explained, and until the Metropolitan Police investigations had concluded.
Although he expressed his hope that the inquiry would start before the end of the year, and would conclude its investigations with 12 months, there are two fundamental problems with this scenario. The first, as identified by Reprieve, is the possibility that, if the civil claims are to be settled by the end of the year, “this will mean that the claimants will be paid off and that no disclosure [or] documents will come out of those cases. This, together with a secret inquiry, will mean that information will never reach the public.”
Or, as former prisoner Omar Deghayes explained to the Daily Mail:
It feels a little bit like blackmail in a way. They want us to keep quiet and shut up … If you listen to David Cameron's speech in its entirety, it seems that a condition of us accepting the compensation will be that we drop the civil cases and then keep quiet about everything … This is not a compensation issue. I must stress that we did not begin civil proceedings to get a bit of money, we did it to raise awareness and try and stop the same thing happening again. It is not acceptable that we be required to keep quiet and not talk about torture again.
The second problem is that, according to David Cameron’s plan, the Metropolitan Police are supposed to conclude their investigation into Shaker Aamer’s claims of torture while Mr. Aamer himself remains held in Guantánamo. This is completely unacceptable -- not only because the physical presence of Mr. Aamer (who was cleared for release by the US authorities in 2007, but is still mysteriously held) is essential for the police inquiry, but also because it is inconceivable that any of the cleared prisoners will agree to cooperate with the government at all while he remains in Guantánamo.As a result, the very first thing that David Cameron, Nick Clegg and William Hague need to do is to secure Shaker Aamer’s return.
Gagging the courts?
Allied to the general problem of secrecy is the government’s approach to the courts, which, of course, have done so much to expose complicity in torture, and to exert exactly the kind of pressure that has led to this inquiry in the first place. Primarily, this pressure has emerged in the case of Binyam Mohamed, when, for 18 months, former foreign secretary David Miliband fought to prevent two high court judges from revealing a summary of documents relating to Mohamed’s torture in Pakistan that had been provided to the British security services by the CIA. Miliband argued that doing so would imperil the intelligence-sharing relationship between the US and the UK, although the High Court judges disagreed, as did the Court of Appeal when, in February this year, they finally ordered David Miliband to release the summary, which demonstrated that MI5 knew that Mohamed had been subjected to treatment "at the very least cruel, inhuman, and degrading."
David Cameron was evidently acutely conscious of this in the House of Commons on Tuesday, when he told his fellow MPs that, next year, the government will "publish a green paper which will set out our initial proposals for how intelligence is treated in the full range of judicial proceedings, including addressing the concerns of our allies". At the heart of the plans for the green paper is an attempt to make sure that, in future, there will be no more opportunities for judges to order the release of information provided by foreign intelligence services (whether the US or anyone else), although another obvious motivation is the cost of legal proceedings. It is surely no coincidence that, in the civil damages claim brought against the government by six former prisoners, a high court judge had set a deadline of this Friday for MI5 and MI6 to provide a list of 250,000 documents relevant to the case.
Whether through a desire to cut costs, or as seems more probable, through a desire to prevent the courts from delivering the kind of condemnation of the security services’ activities that came from Lord Neuberger in February, in Binyam Mohamed’s case, when he stated that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, and had a “culture of suppression” in its dealings with Miliband and the court, the government‘s proposal for a green paper cannot, in all reality, be seen as anything other than a cynical attempt to shield future wrongdoers from judicial scrutiny. As Reprieve explained, “There is already ample opportunity -- much increased recently -- for evidence to be heard in secret. There is no need to expand this dangerous practice."
Renouncing torture, or leaving loopholes open?
On the final point -- the renunciation of torture -- the government is also on thin ice. It is all very well for David Cameron to state that what is at stake is the UK’s reputation “as a country that believes in human rights, justice, fairness and the rule of law,” but grave concerns remain about the guidelines issued to the security services. This long-running saga, triggered by questions surrounding what advice had been given to a British operative known only as “Witness B” for his interrogation of Binyam Mohamed in Pakistan in May 2002, was revived last June, when the Guardian reported that, in January 2002, MI5 and MI6 officers in Afghanistan were told they could not be “party” to torture and must not “be seen to condone it,” but that because prisoners were “not within our custody or control, the law does not require you to intervene to prevent this.”
Following the Abu Ghraib scandal in April 2004, the guidelines were rewritten, but although Prime Minister Gordon Brown stated in March 2009 that these guidelines would be released, he left office without doing so. On Tuesday, just before the new government’s torture inquiry was announced, attempts by Reprieve to launch a judicial review of the guidelines were quashed after the government stepped in at the last minute with a claim that new guidelines would be published “very shortly,” just after Mr. Justice Collins had stated that, if the allegations about how British agents interrogated prisoners held overseas were true, they “indicated that there may well have been complicity in acts of torture.”
The new guidelines were published on Tuesday, at the same time that the inquiry was announced, but, as Reprieve noted, two troubling points remain unanswered. The first concerns the fact that “the previous policy has not been published,” which “suggests that there is something within it to be hidden.” Reprieve added, “The judge will see that, but will we? Will we know whether unlawful acts carried out in the past were authorised by that policy [or] guidance?”
The second point, more worryingly, concerns the new guidance. As the Guardian explained, there is “concern that the government's new interrogation guidelines … contain a number of loopholes that could still lead to it being used to facilitate torture,” or, as Reprieve put it, the new policy still ”allows ministers to authorise torture.” The key to this, as the Daily Mail explained in an analysis of the new guidelines, is that, although the guidelines state unambiguously that “In no circumstance will UK personnel ever take action amounting to torture or cruel, inhuman or degrading treatment or punishment,” the perception of such treatment “will cover a wide spectrum of conduct and different considerations and legal principles may apply depending on the circumstances and facts of each case,” and that the final approval for what may be regarded as “torture or cruel, inhuman or degrading treatment or punishment” rests with government ministers, who must be “consulted.”
As Reprieve noted, “This is illegal under the Convention Against Torture. Was this clause also in the previous guidance? If so then ministers must be held accountable for allegations of complicity in torture.”
In conclusion, then, the announcement of the inquiry is welcome, but issues of secrecy, compensation, the need for the release of Shaker Aamer and the seeming inability of the government -- any government -- to prohibit torture without leaving loopholes open, look likely to dog the inquiry’s every move. While the government is to be congratulated, ministers also need to be careful, as many people are scrutinizing their every move, and will not settle for anything that resembles a whitewash.