Flickr/codepinkhq. Some rights reserved.
Torture is a gross abuse and the cruellest of crimes. The English common law has banned it since the Middle Ages as Lord Bingham confirmed in the House of Lords in A v. Home Secretary  UKHK 71.
The Lords ruled that the prohibition was wide enough even to exclude from legal proceedings in the United Kingdom evidence “which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities.”
Lord Bingham cited several of the greatest jurists, including Sir John Fortescue, Blackstone, and Sir William Holdsworth. Fortescue, in the 15th century, pointed out the ineffectiveness of torture as a means of extracting accurate information. “But who is so hardy” he wrote “that having once passed through this atrocious torment, would not rather, though innocent, confess to every kind of crime, than submit again to the agony of torture already suffered…” Sir Edward Coke said torture contravened clause 39 of Magna Carta.
Britain diverged from France and many other nations, who practised torture unchecked for centuries, but the British example led to universal acceptance that torture is at the peak of criminality in international law. The prohibition of torture is ius cogens – obligatory on all nations. The UN convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment of 1984 has been adopted by 157 states (including the United Kingdom and the United States). It was designed to ensure implementation of the prohibitions in article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights. All states are required to ensure that all acts of torture, as well as complicity and participation in torture, are offences under its criminal law. Article 2.2 of the 1984 Convention says “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Yet governments persist in the most blatant violations of this fundamental law.
In April 2014 the US Senate Intelligence Committee on the Detention and Interrogation Programme of the Central Intelligence Agency sent the Findings and Conclusions of its 6,700 page report on torture to the president for declassification and subsequent public release. It has not been released but in December 2014 a 549 page summary was published, with a number of redactions. Despite its abbreviation, it is a devastating indictment of lawless brutality. It documents the relentless, daily subjection to continuous and unbearable pain through the use of euphemistically labelled “enhanced interrogation techniques”, acknowledged as torture by President Obama himself.” The victims were mainly detainees at Guantanamo and elsewhere suspected, often tangentially and on the flimsiest grounds, of involvement in the appalling attacks of 11th September 2001. None have been brought before the courts.
Responsibility for this criminal behaviour reaches the highest levels of the US government. President Obama, on assuming office in 2009, promised to end torture immediately and to close Guantanamo within a year. He has failed to achieve the latter (we can’t be sure about the former) and his Justice Department has failed to prosecute anyone for torture during the presidency of his predecessor George W. Bush. After publication of the Senate Committee summary, the CIA mounted a spirited defence, claiming they acted on legal advice from the Justice Department. They have claimed, contrary to the Senate conclusion, that the “enhanced techniques” were necessary to national security and that they secured essential evidence. There is no evidence to support this claim. Instead the evidence is to the contrary: that suspects provided information during traditional non-violent questioning and stopped doing so when subjected to torture. Yet the CIA’s challenge to the Senate findings, led by former vice-president Dick Cheney, seems to have achieved considerable public credibility in the US. Calls for prosecutions have fallen on deaf ears. And this major exposure of criminality at the heart of government has disappeared from the headlines.
Among the findings of the Senate committee are the disappearance of over 100 individuals named in the unpublished report, lies told by the CIA to Congress about the nature and extent of the torture, and evidence that legal approval of the use of the interrogation “techniques” was obtained by deliberate misrepresentation of the facts.
Were UK agencies involved? The report is said to contain details of collaboration by MI6 in the torture of terror suspects and that UK government pressure caused the findings to be redacted and suppressed. These are matters which a committee chaired by the former Court of Appeal judge Sir Peter Gibson should have examined but lamentably failed to do. When the summary of the US report was published David Cameron acknowledged that “things happened that were wrong” after 9/11 but that the issue had been dealt with from the British perspective because the Gibson Inquiry “has now produced a series of questions that the Intelligence and Security Committee will look at”. But where are the answers?
In America, major criminality has occurred without redress or retribution, undermining and defying the rule of law. There is good reason to believe that the British authorities have participated in this disgraceful and scandalous behaviour. Thorough investigation and accountability for their involvement is long overdue.
This article first appeared in the New Law Journal.