Secrecy and abuse: a special relationship

Britain's participation in torture is contingent on a cloak of secrecy. Yet the UK is planning to yield more powers of confidentiality to the government. 

Last Thursday, December 13th, three things happened that should have significance for us all.

First, a Libyan national was given £2.23 million by the British government. Secondly, the European Court of Human Rights ordered Macedonia to pay EUR 60,000 to a German national.  And finally, the US Senate Select Committee on Intelligence voted to approve a lengthy and potentially damaging report. In all instances, the underlying issue was the covert use of torture.

With the assistance of MI6, the Libyan dissident Mr Sami al-Saadi was rendered from Hong Kong to Tripoli in 2004, along with his wife and four children, following which he was subjected to years of torture by Gaddafi’s police. Despite its large payout, Cameron's government has not accepted liability. 

As for the German national, Mr Khaled El-Masri, he was handed over to the CIA by Macedonia, after being mistaken for a similiarly-named al-Qaida suspect.  Last week, the ECtHR’s Grand Chamber found explicitly that the combined measures used by the CIA in their rendition of Mr El-Masri constituted torture. 

The finding is unprecedented. The CIA’s use of torture is not. Emphatically, the court found against Macedonia specifically for, inter alia, transferring Mr El-Masri into US custody, despite there being “a real risk that he would be subjected to further treatment contrary to Article 3 of the Convention”. For us, and for our closest allies, the cat is out of the bag. 

And there is potentially more to come. The highly-anticipated 6000-page Senate Select Committee report is said to summarise three years of research into the CIA’s detention, interrogation and rendition of ‘terror suspects’ from 2002-2009. Despite its welcome endorsement, however, the decision on when, if ever, the report will be made public has been reserved.  It may remain secret. 

Meanwhile, speculation continues to mount as to what the report might conclude in relation to the efficacy of torture.  Earlier in the year, Reuters reported that the investigation was expected to find little evidence that torture had been crucial to critical intelligence breakthroughs.  

But so what, if the reverse is found?  Is not the point that torture is abhorrent and wrong, however you look at it?

This has been the position under English Common Law since the 15th century.  Even then, torture was rejected as intrinsically cruel, inherently unreliable and, as Tom Bingham wrote in 'The Rule of Law', degrading to “…all who had anything to do with it, including the courts, if they received or relied on the fruits of such treatment.”

Similarly, torture is absolutely proscribed under international law.  And, along with “inhuman and degrading treatment or punishment”, it is also unqualifiedly prohibited by Article 3 of the European Convention on Human Rights. 

And yet, compelling evidence such as the above, or indeed that documented in a new book by Ian Cobain, Cruel Brittania: a secret history of torture, reviewed here by Nicholas Mercer, demonstrates that all these things have been repeatedly and systematically resorted to, in our name, as he puts it: “from World War II to the War on Terror, via Kenya and Northern Ireland.”

In extreme situations, then, the British government’s perception appears to be that the abuse of detainees is justifiable, on grounds of utility.  But, if so, why is this so firmly at odds with the official line? 

One simple answer is that, as torture is irrefutably illegal, its use is contingent on secrecy.  A more complete answer, however, is that we are ashamed to admit to using it because, like the majority of the international community, we do not believe that torture is ever morally justifiable, even in extreme circumstances.

Yet, how then, are we repeatedly able to condone it, albeit in secret?  The answer is in the question.  That is, it lies in our deep-rooted culture of secrecy and its faithful bedfellow, abuse.  

Secrecy in government effectively amounts to unfettered authority, which, in turn, results in abuse.  Just ask Professor Philip Zimbardo, architect of the 1971 Stanford prison experiment, in which 24 students were divided into guards and prisoners.  Within six days the guards’ behaviour had become so brutal that the experiment was abruptly stopped.  Like it or not, sociology has taught us that, when given the right ingredients, we poison ourselves.

We know that torture is wrong and we know that we do it.  Attempts to dress it up in innocuous terms such as ‘enhanced interrogation techniques’, or to deny our involvement in it completely, are both dishonest and a pathetic waste of time. 

In the cool light of day, we want to get beyond the mutually degrading and self-perpetuating hypocrisy of fighting terror with terror.  Rather than deny our part, therefore, we should focus instead on preempting and mitigating situations and dynamics which have proved conducive to abuse. 

A good start would be to remove the most central ingredient in the poisoned chalice that is the ‘security at all costs’ fallacy: unchecked secrecy. 

Uncomfortable as it is to accept, the reason we torture people is because we can, even though we know it is wrong.  In certain situations, we are not as strong as we pretend we are.  That is why age-old, unsexy principles such as accountability and transparency are so indispensable - we need to keep ourselves in check.  

In this context, our concern in relation to the US Senate Select Committee’s investigation should be not so much with whether it proves that torture can be efficacious, as with when, if at all, the report will be ‘declassified’.

Meanwhile, on this side of the pond, the Justice and Security Bill is scheduled to have its second reading in the House of Commons today. (See Anthony Barnett and David Davis on the bill in their piece, The Coming Dictatorship). If enacted, it will allow closed (or secret) evidence to prevail in civil cases where it is alleged that national security would be compromised were the information to be made public.  Alarmingly, not only will the public be closed off from the secret evidence, but so too will the claimant and her legal representative.

There is an established link between secrecy and abuse.  Do we really want to cede more powers of confidentiality to the government? Just as no one is above the law, neither should anyone be able to distance themselves from its reach.  We know what happens when they do.   

As Benjamin Ward of Human Rights Watch comments:

“Given the context in which the proposals to expand secret hearings emerged and further evidence of British wrongdoing that has since come to light, it’s hard to avoid the conclusion that a key motivation of the proposals is to ensure that if abuses are repeated, they will never see the light of day in British courts.”

Our participation in torture makes us, at best, indistinguishable from those we ill-treat.  Quickly and inevitably, we lose sight of what we are trying to protect: ourselves, and what we stand for.  Our involvement is born of secrecy, is contingent on secrecy and protracts secrecy.  It is time to break the cycle.

About the author

Tom Gaisford is a human rights lawyer with particular experience in immigration and asylum law.  His work has been published in several national papers, including the Independent and The Tablet.