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November 5, 2010 7:43 pm
One of David Cameron’s early acts on becoming prime minister in May was to appoint yet another committee of inquiry into an aspect of the Iraq war. It will be the latest in a series of inquiries in which Hutton, in January 2004, was the first, followed by Butler (July 2004) and Chilcot, which will report early next year. Several House of Commons committees have also inquired into the war. Last year, the public administration committee inquired into an inquiry (the Chilcot).
These inquiries have largely exculpated Labour governments from serious breaches of public duty or honesty, and in so doing have disappointed many who believe that going to war was wrong and culpable. Cameron’s inquiry is the first authorised by politicians who had no part in the undertaking of the war. Activists thus hope that political blood will be drawn. After all, this inquiry is on as sensitive a subject as any in the world – torture.
To be chaired by the retired judge Sir Peter Gibson, its purpose is to bring into the light persistent reports and allegations – as well as pending court actions from British Guantánamo detainees alleging torture and British complicity – that the British secret services and military had at least colluded in torture, and used the intelligence extracted. The committee will pick away at one of the sorest scabs of the past 10 years: that the wars in Afghanistan and Iraq, and the linked “war on terror”, stimulated the widespread use of torture by Americans, practised in the war theatres, the US base Guantánamo on the island of Cuba and in prisons scattered throughout eastern Europe and the Middle East, to which suspects had been rendered to be interrogated.
Britain, as Tony Blair said immediately after the attack on the World Trade Centre in 2001, stood “shoulder to shoulder” with the US. A relationship between the two countries’ security services, always co-operative, was now doomed to be even closer. Thus an assumption has become widespread: that since the British stood at the shoulder of the Americans, they could look over their allies’ shoulders and see – or even share in – horrors. This closeness now haunts the British intelligence services, which see themselves as in danger of being sullied by co-operation.
Torture occupies a particularly hideous spot in the minds of most people – linked as it is to medieval sadism, colonial oppression and the horrors of Nazism, Stalinism, Maoism, the Khmer Rouge and other 20th-century tyrannies. Yet three things become immediately apparent when you inquire into it. First, it can work. Second, it is widely practised. And third, those in and close to British intelligence services believe that, unusually, the British don’t do it. Both MI6 (the Secret Intelligence Service) and MI5 (the Secret Service) – believe they have nothing to hide. It was the Americans.
Torture works in the way those who justify it claim: it delivers information. It was successfully used in the short term by the French in the late 1950s during the Algerian war of independence, providing them with information that allowed them to win the Battle of Algiers. However, they later lost the war, leaving behind a bitterness deeper for the torture used.
Nearly 50 years later, its effectiveness seemed proven again when, in 2002, the 11-year-old Jakob von Metzler was kidnapped in Frankfurt and a €1m ransom demanded. It was paid, but the boy was not released. Magnus Gäfgen, whom police had seen picking up the money, refused to reveal von Metzler’s whereabouts. The Frankfurt deputy police chief, Wolfgang Daschner, then threatened torture. The threat was enough: Gäfgen revealed the hiding place, but the boy was found dead. Daschner was fined €10,800, but the sentence was suspended and the judgment seen as a mild warning. Daschner said at his trial that a high official in the state of Hesse’s interior ministry urged him on – “Do it! Show the instruments!” – an allegation the ministry denied. In a comment in 2006, the Chancellor Angela Merkel said that the majority of Germans disapproved of Daschner’s actions (though some polls had shown approval) – and so did she.
Alan M. Dershowitz, the Harvard law professor who has argued that torture is so prevalent – and inevitable – that it should be put on a legal footing, gives another example of what might have been: a case where torture was not used. In 1978, a terrorist group kidnapped Italy’s former prime minister, Aldo Moro, and threatened to kill him. An investigator for the Italian secret services proposed to General Carlo dalla Chiesa that a prisoner who seemed to have information on the kidnap should be tortured. The general rejected this, saying memorably (and perhaps apocryphally), “Italy can survive the loss of Moro but it cannot survive the introduction of torture.” Moro was later murdered by his captors (dalla Chiesa was too, in 1982, by the Sicilian mafia, when prefect of Palermo). The tantalising question that Dershowitz puts is: could Moro thus have been saved?
Iranian author Darius Rejali, whose Torture and Democracy is the most detailed and most passionately anti-torture book available, admits it works, although he insists it works best when needed least – when interrogators have plenty of time, when innocents are identified and released, when there are many cross-checks on the information and when there is no emergency and little pressure.
And the writer and academic Michael Ignatieff, now the leader of the Liberal opposition party in Canada, cautiously and implicitly accepted that torture can be effective in the Gifford Lectures he gave at Edinburgh University in 2003. Ignatieff allowed that “permissible duress might include forms of sleep deprivation that do not result in harm to mental or physical health, and disinformation that causes stress”.
Torture does not work reliably. But no interrogation works reliably. Those countries which continue to use – or, like the US, have adopted – torture, do so because it can sometimes deliver. If torture were driven only by the forces of tradition, sadism or revenge, it would not continue to be practised in – according to one estimate – more than 130 countries. It is so because torture exists within a moral dilemma.
Ignatieff, in his Gifford Lectures, said that, “Torture is probably the hardest case in the ethics of the lesser evil. A clear prohibition (against torture) erected in the name of human dignity comes up against a utilitarian case also grounded in a dignity claim, namely, the protection of human lives.” In other words, though the leader of the Canadian Liberals is unlikely now to put it this way, there is a moral case for torture.
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The British, of course, are not making such a case. Insiders say the services will face the inquiry with a clean conscience and a clean state. Last month, in the first widely publicised speech by a head of the Secret Intelligence Service (SIS), Sir John Sawers welcomed the inquiry, saying that, “I am confident that, in their efforts to keep Britain safe, all SIS staff acted with the utmost integrity, and with a close eye on basic decency and moral principles.”
Kim Howells, the former Labour MP for Pontypridd, was in the latter part of his career a Foreign Office minister with responsibility for counter-terrorism, and then chairman of the parliamentary intelligence and security committee. Howells doesn’t just believe that the British security services are clean: in an interview, he said that, “We have the most open and the most accountable secret services in the world now.”
Howells added: “One of the great difficulties in this trade is knowing who does what. Not one of the intelligence services in the UK can be sure whether our closest allies – the US, but others too, France and others – are using techniques of interrogation that we would consider unacceptable.
“I asked one of the agency heads who came before the ISC, ‘Who can we trust not to abuse the human rights of suspects?’ He paused for some time and then said, ‘Maybe Sweden’. It’s not that other countries don’t have human rights organisations, but they are not as influential as here, and the media don’t use them as much. Ministers from every country would say to me things like, ‘Why are you so worried about all this human rights stuff?’”
Asked about the possibility that Britain had collaborated in “renditions” – repatriating suspects to home or other countries where they were at risk of torture – Howells said: “This is important for us: I spent a lot of time working out repatriation with assurances that those repatriated wouldn’t be abused. But the judges wouldn’t permit it. They said they didn’t believe that the people returned wouldn’t be tortured. They pointed to countries like Algeria and Libya where torture had happened and people were imprisoned without trial. But these were past abuses: in fact, these countries were trying to get away from that, because they wanted to be accepted by Europe.
“There are also problems about repatriating Americans because of the death penalty. This leaves us with a very big problem – what do we do with dangerous people? They have to be watched. And the cost of surveillance is huge.”
Lord Alex Carlile, a barrister, independent reviewer of terrorism legislation and, for 14 years, a Liberal Democrat MP before moving to the Lords, has been active in human rights causes for much of his career. He was the first politician to campaign for the rights of transsexuals, and remains president of the Howard League for Penal Reform. Carlile has studied legislation introduced in the US since the 9/11 attack – especially the Patriot Act, signed into law with a big bipartisan majority soon after the attack in 2001, which greatly increased the power of the security services. He believes that the US and the UK have, over the past 10 years, diverged sharply on how to react to terrorism, treat terrorist suspects and frame laws.
“You have nothing remotely like Guantánamo in the UK. The difference, I think, is basically historical – between that of a frontier society, and that of a long-developing democracy. When I went to the US to talk about the Patriot Act, I came to the view that it could never pass through any government here. The powers of the act include the power to detain witnesses. Witnesses, not suspects! By contrast, the development of UK legislation was rather cautious, taking close account of the European Convention on Human Rights. The US does pay close attention to its constitution, but not so much to the convention. And this has carried over into the new [Obama] administration.”
Carlile, like Howells, thinks that Britain is held in some contempt by foreign agencies and governments for its pernickety approach. “I have sensed it in discussion with lawyers and officials from other states – a frustration that the Brits don’t go far enough. There’s been a reaction in foreign intelligence agencies against what they regard as the prissiness of MI6 on the terrorist threat.”
Several commentators in the US – including the Washington Post columnist Charles Krauthammer and Alan Dershowitz – believe torture should be used in extreme circumstances – as in “ticking bomb” situations, or when a “very high-value” terrorist with crucial information is captured. Others, such as the former Republican presidential candidate John McCain (himself a torture victim), and the Princeton political scientist Michael Walzer, believe it should not be used – but where, at an extremity, it is permitted, the politician or official permitting it should take responsibility, and suffer, for it. Walzer, in a 1973 essay called “The Problem of Dirty Hands”, posits the figure of a politician with a conscience, choosing to torture in order to save lives: “His choices are hard and painful, and he pays the price not only while making them but forever after.”
For many in the US military, however, the soul is in danger not by the decision to use torture, but by abstaining from it. Sir David Omand, a leading figure in the UK government-security world, who has served as head of the intelligence listening station GCHQ, permanent secretary at the Home Office and security intelligence co-ordinator in the Cabinet Office, referred me to evidence given to a US congressional committee in 2007 by Michael Scheuer, former head of the CIA’s counter-terrorism centre. In it, Scheuer blasted European governments including the UK for hypocrisy, describing them as “sanctimonious Europeans who take every bit of American protection offered them, while publicly damning and seeking jail time for those who risk their lives to provide that protection”.
Omand was security and intelligence co-ordinator in the first years after 9/11. In that capacity, he says, he “knew nothing about the methods used in the US. By 2003, there was a lot of useful intelligence coming from the US. Where was it coming from? We did share intelligence but we didn’t know how it was gained, and often didn’t know from whom. We thought, maybe they had turned the detainees. Maybe they had bribed them. And, yes, maybe they had worked them over. You can reproach us for our lack of curiosity.
“When it became clear to us in 2004 that the US was running a rendition programme – with camps and prisons in eastern Europe, these stories were around – the British legal position on this was very clear. Rendition was for us illegal. No foreign secretary could sign an order to do it. We couldn’t.”
The SIS has been the closest organisation to the US intelligence community. Now, under pressure from a forthcoming inquiry and in an effort to distance itself from allegations that it believes have no foundation, it emphasises the gulf which opened up between the “cousins”. Starkly put, it sees itself as lawful – and the US services as careless of both laws and of human rights. The British “spooks” sharply differentiate themselves from a US approach based on taking out top terrorists. By contrast, they see themselves as cleaving to an intelligence-based approach, delivering outcomes – arrest and jail – via a judicial process.
The relationship is never equal – the US security establishment has swollen, according to a recent Washington Post investigation, to more than 800,000 people; the British remains at a low percentage of that. The 9/11 attack was on America, and America made it clear it would manage the response. The UK agencies were directed to support the US: it was not an alliance in the sense of give and take. The Brits had no defined status – they were piggy-backing on a US machine.
The relationship is thus undercut as never before by mutual suspicion and occasional contempt. If few would express themselves as saltily as the ex-CIA man Scheuer, they still see the Brits as, at best, excessively legalistic, and worry that future disclosures of their activities in court will compromise security – with cause (see below). The US now sees many of its partners as walking out of the party and leaving others to wash the dishes.
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The British services, by contrast, believe with Kim Howells that they are now among the cleanest in the world. This is the result of a self-administered shock in Northern Ireland. As the IRA campaign ratcheted up in the early 1970s, the British army and security services employed torture against about a dozen men whom they had interned. They used the “five techniques”: wall-standing (being forced to lean against a wall on tip-toes); hooding; subjection to noise; deprivation of sleep; and deprivation of food and drink.
A Privy Council report in 1972, the Parker Report, condemned the practices and they were largely discontinued. Six years later, the Irish government, on behalf of the men subjected to the techniques, took the UK to the European Court of Human Rights. The court ruled that they were “inhuman and degrading treatment” and a breach of the Convention on Human Rights. The attorney-general undertook that “the ‘five techniques’ will not in any circumstances be reintroduced as an aid to interrogation.”
And that, the security services say, has held, through the furnace of the war on terror. In successive notes of guidance on interrogation, agents are warned that they must not put themselves in a position where they are complicit with interrogations using torture, nor must evidence obtained from torture by any agency be used.
That last leaves a grey area. Evidence can be detached from the occasion of obtaining it: or it can come with assurances, which may or may not be credible, that torture was not used. David Omand, who as a young Northern Ireland desk officer in the Defence Ministry in 1970-74 had to “help clean up the mess” left by the five techniques, says that “we must use material which will save British lives, no matter where it’s from.”
But the security service is more literalist: it believes it cannot use such evidence if there is any cause to believe that it came from tortured confessions. That people may thus die is not the point: the point is that to use the evidence would be illegal. In his speech, the SIS chief Sawers – admitting that “some may question this” – said that “torture is illegal and abhorrent under any circumstances, and we have nothing whatsoever to do with it.”
But, he went on, “if we hold back and don’t pass that intelligence, out of concern that a suspect terrorist may be badly treated, innocent lives may be lost that we could have saved. Sometimes there is no clear way forward. The more finely balanced judgments have to be made by ministers themselves.” This careful formulation means that doubtful instances, where torture may have been used by others, are at times passed, with ministers bearing the moral burden.
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Human rights groups and activists see much of this as self-serving nonsense. They think that Britain and other European states have betrayed and continue to betray their legal obligations to ban and oppose torture. A Human Rights Watch report of earlier this year said that Germany and France routinely used evidence obtained elsewhere under torture, while the UK’s “ambiguous rules” made such use “a real possibility”. The report says that “France, Germany and the UK… demonstrate a willingness (even eagerness) to co-operate with foreign intelligence services in countries like Uzbekistan and Pakistan – notorious for abusive practices.” In September this year, the Equality and Human Rights Commission wrote to David Cameron and the heads of the security services to express “serious concerns” that the guidance given to security agents left them exposed to claims of complicity in torture.
Philippe Sands, a law professor at University College London and a barrister who has specialised in issues of torture, rendition and terrorist law, says that “what’s crucial for this [Gibson] inquiry is how far up it goes. My understanding is that Blair signed off on everything which the secret services did. And we don’t know what that was. For example, its 2002 guidelines on interrogation have never been published. The revised 2008 guidelines have been published – but that’s late.”
Sands and others concerned with human rights point to the case of Binyam Mohamed as central. Mohamed, an Ethiopian and British resident, was arrested in Pakistan in 2002, turned over to US authorities, rendered to Morocco, where he claims he was tortured, taken to Kabul, where he says he was further tortured, and then held without charge for five years. After prolonged court proceedings, he was released back to the UK on the UK government’s request, where he was set free early in 2009.
In February this year, the UK Court of Appeal held that the government’s evidence on Mohamed must be revealed. David Miliband, then foreign secretary, had refused to release sections of that evidence, arguing that it would harm national security and that the evidence had been given by the US in confidence. In February, White House officials were quoted as saying that release “will complicate the confidentiality of our intelligence-sharing relationship”.
The lawyer Clive Stafford Smith, who also heads the legal charity Reprieve, believes this is a key issue, and that “we must know what happened here – not to punish the intelligence officers, some of whom were conscientious in reporting suspected abuse – but in determining how far up the decision to be complicit went.” Many think they already know the basis of the “real decisions”: the solicitor Gareth Peirce, who has defended many accused of various degrees of terrorist involvement, writes in her recent book, Dispatches from the Dark Side, that British courts’ declarations that torture, or torture evidence, can never be used are seen by UK governments as “only the most temporary of impediments… irritating interferences with an overarching quest for claimed national security”.
Presently, some four other former detainees besides Binyam Mohamed – Bisher al-Rawi, an Iraqi and British resident; Jamil el-Banna, a Jordanian with refugee status; Richard Belmar, a British citizen and Omar Deghayes, an Algerian and British resident, all released from Guantánamo at British insistence – are now preparing cases against the security services in the High Court. The Gibson inquiry cannot begin until these cases are resolved.
In a conversation detailing his five-year detention by Pakistani and US security services in Lahore, Bagram base in Afghanistan and, for the bulk of his detention, Guantánamo, Omar Deghayes told me that UK agents had conducted interrogations in the latter two locations, working with CIA counterparts, including its head of the Libyan section. His main complaint against the British is that they fed information to the US agents, that the latter then used in interrogations which included torture – he cites starvation, being kept in the stress position for hours, sleep deprivation, excrement smeared on his face and much else.
Though Deghayes was released in 2007, he remains convinced that while the British agents did not take part in torture, they were complicit. “They knew – of course they knew what was going on. You could see it all in Guantánamo – people being beaten up, people held down. I told them I had been starved. The first time I met them – a British agent called Andrew – in Bagram, I thought he was shocked. But it went on after.” He added: “These allegations should be put in the US, but they can’t be. But here it’s a free judicial system and people in the system recognise what happened.”
When Sands was writing his 2008 book, Torture Team, he spoke at length to Douglas Feith, who had been an under-secretary for defence in George W. Bush’s first administration and was a strong advocate of coercive interrogation. Feith had told Sands that, “The new situation means that weapons are now in people’s heads – so getting it out is crucial.” For that reason, terrorist suspects must be interrogated until they talk: any other course compromises national security.
Feith, who was condemned by the Pentagon’s inspector-general after he left office for dissem-inating material on al-Qaeda “inconsistent with the consensus of the intelligence agencies”, is never-theless correct that humans are now potentially devastating weapons. Torture – ironically, at a time when human rights, democracy, the rule of law and the protection of women’s rights are being globalised – now suggests itself as a response to the most urgent problems of security.
The dilemma of the lesser evil will not recede. The challenge for democratic governments committed to the rule of law is to find ways of securing their populations without degrading their beliefs. Have Britain’s moral spooks found it? And will it keep us safe?
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