Clive Stafford Smith: Beyond Iraq, a public inquiry that would really matter

As an investigation is launched into one consequence of 9/11, a top lawyer calls for ministers to come clean about another - torture

Saturday 13 July 2013 03:15

In the early days of Guantanamo Bay, the Bush administration came up with a formidable wheeze: If a prisoner told his lawyer how he had been tortured, this had to remain classified, because it would reveal the "methods and means of his interrogation" by intelligence officers. Like other lawyers, I would travel to Guantanamo and listen to tales of abuse from various prisoners. But we could say nothing as President Bush endlessly intoned his pious opposition to torture. Eventually, we forced a change in the procedures and some – but far from all – of the evidence came out.

Sunshine is, they say, the most powerful disinfectant – and in Britain the Freedom of Information Act (FoIA) should be the ultimate sunshine law. The more we learn about material that has been covered up, the more we see the need for open government. For example, it is rather clear now, in the wake of weeks of revelations on expenses, why MPs wanted to exempt themselves from the FoIA. It is equally clear that, if the people are to make an informed judgement at each election, government officials should be the first group covered by Freedom of Information laws, not the last.

There have been many casualties in the first decade of the new millennium, not all of them in Iraq and Afghanistan. One victim of the Bush-Blair era was the unanimity of 20th-century democratic opinion against the use of torture. Another has been the truth about who is using it.

As journalists and lawyers have tried to unravel the errors of the "war on terror", information is becoming increasingly shackled. At every turn, there has been a new form of secrecy, each one tagged with a new euphemism, each more "special" than the last. The Government files "public interest immunity certificates" which are intended to keep evidence from the public. The "Special Immigration Appeals Court" (SIAC) hears evidence in secret, and "special advocates" represent, but are forbidden to talk to, the prisoner.

Throughout this erosion of our liberties, the consistent theme is the insidious conflation of national security with national embarrassment. If a document will make the Government look bad, then the minister insists it must be withheld – or it will "give succour to our enemies".

This was the slogan recited last week by David Miliband, testifying before the Foreign Affairs Select Committee. Britain is about to get a new "torture policy" which, with much fanfare, will be made public. There will be the instructions to British officials dictating the proper course of action when they learn about torture. They will be reminded of their duty under the UN Convention, and enjoined to file a complaint whenever the ugly face of torture rears before them. This is the kind of good news that ministers like the electorate to read.

What, then, of the "torture policies" that have been in force since 9/11? How is it that so many cases of torture seem to have taken place over eight years, yet ministers have remained so silent, commenting only when cornered, and then restricting themselves to platitudinous protestations on never condoning torture?

Mr Miliband insisted this week that these earlier policies would remain secret. To reveal them would, he said, only lend "succour to our enemies". Why is that? What do these policies say that would lend aid to our enemies? Who are these enemies?

To understand what he meant, we need to see the policies. As fortune would have it, Mr Miliband appears to have missed the fact that the cat is already halfway out of the bag, and yawling loudly. The regulation in place from 2002 to 2004 has already seen daylight. In January 2002, a British officer witnessed Americans abusing prisoners. He asked what he should do. On 11 January 2002, the Government sent advice to all agents stating: "Given that [the prisoners] are not within our custody or control, the law does not require you to intervene to prevent this." In other words, you need do absolutely nothing about torture when you see it.

Does knowing this give "succour" to Osama bin Laden? It would matter not one ha'penny worth to him. If he found himself in an American torture chamber, he would hardly expect some British officer invited into the interrogation to be his saviour.

So who might gain succour from this information? Deep in his heart, I suspect Mr Miliband was thinking of his real enemies – journalists lawyers and, of course, the Tories.

A second round of torture advice was apparently issued in 2004. When pressed, Mr Miliband said that lawyers could see it if it was necessary to their case – but of course these would be the "special" advocates in the "special" tribunal, so not even the prisoner could know what the advice was.

Cynics will assume that this advice was as reprehensible as the policy it replaced, else why would the Government be so desperate to hide it? But we should not have to rely on a sceptical imagination. We deserve to be told. We should also be told why the British still have not revealed the evidence of former Guantanamo prisoner Binyam Mohamed's torture. We should be told about any other abuse that has been witnessed by British officials. And we should be told how it was that the Blair government concocted the scandalous advice quoted above – a policy that clearly violated our obligations under the UN Convention Against Torture.

There were many ways Parliament acted in haste after 9/11. By abandoning our commitment to fairness and due process, the Government has held us up as hypocrites to the world.

The truth about torture is simple: it should never have been classified as secret. There is much current debate over just how open the proposed Iraq war inquiry will be. When it comes to torture, there is even less excuse for secrecy. It is long past the time that a full and open public inquiry should be held into how British officials gradually slid down the treacherous slope towards turning a blind eye whenever they came across an act of torture.

If the Government is not willing to allow an inquiry, perhaps the IoS would like to sponsor one? I have a sense that there are witnesses waiting to tell their stories.

Clive Stafford Smith is the director of Reprieve, the UK legal action charity.

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