Almost a decade on from 9/11, the chickens of the War on Terror are coming home to roost. Law suits against the government and its agencies – of which Binyam Mohamed’s is the highest profile – allege UK complicity in torture. The cases swirl with satellite litigation. In some parts of Whitehall, they call it ‘lawfare’. But outlaws are a thing of the past, and a fundamental principle of British justice is universal recourse to the law.
The concern among civil servants has been widespread and high-level. Concern at the time and money tied up in defending the cases, at supposedly naïve human rights ‘absolutism’, at judges who ‘just don’t get it’. The assertion is made that these cases themselves threaten the safety of the realm, conflating national security with national embarrassment. All of this has led to a powerful sense that something must be done, whether that be cosy cups of tea with the judiciary, smearing the litigants and pulling their legal aid, or an inquiry to put these issues to bed, which is where we find ourselves now.
The inquiry that has been announced will be judge-led and some mix of public and private. The default should be one of openness, with material being heard in camera only where strictly necessary. The inquiry’s success or otherwise will be determined by the extent to which it: lays bare the truth, as a necessary precondition of reconciliation and learning; recognises and compensates victims, offering them remedy and reparation; holds perpetrators to account, at every level; deters potential offenders; and restores public trust. Where lies have been told, by alleged victims or alleged perpetrators, they can be disproven. And international law can again be worth more than the paper it is written on. Bygones cannot altogether be bygones. Sometimes, we need to look back in order to see ahead.
Some uncomfortable home truths may emerge. Perhaps the fog of war clouded judgments in MI5 back then when it was not so used to operating against neo-jihadis overseas. The system of checks whereby the relevant secretaries of state are made aware of activity with the potential to embarrass the government appears to have broken down. But I would be very surprised if British agents actually pulled out any fingernails. More likely, we sent questions into torture chambers, held our noses and looked away. Forgetting Luther King’s exhortation that ‘our lives begin to end the day we become silent about things that matter’, we may not have spoken out as forcefully as we might have done, or as forcefully as international law demands. Whatever the outcome, when the inquiry is said and done, what will be important is how we move on.
International problems associated with detention and interrogation in asymmetric conflict will not go away. Torture will continue to do violence to the defenceless, using their bodies against their souls. The prohibition on torture will remain a golden rule: universal, unqualified and non-derogable. And the torturer will remain – hostis humani generis – an enemy of mankind.
Yet a fundamental dilemma will also remain: UK intelligence liaison with the likes of the Pakistani ISI has saved British lives. We have good reason to believe that the ISI sometimes torture their detainees. They will always deny that, if asked. Such an intelligence relationship therefore inherently runs the risk of being perceived as – or, worse, actually being – collusive in torture. The only way to avoid that risk would be to terminate the relationship. That could cost British lives.
Whether or not our security and intelligence services end up colluding in torture in the future should be about more than the niceties of how we define a word like complicity. We must have some clear red lines. The exercise of drawing them would be improved by public debate, which we may now get, since the government has at long last published its new guidance for British interrogators. But the fact that this guidance – a Police And Criminal Evidence Act for the Agencies – until recently still hadn’t been published (unlike the terror threat levels) more than a year after the previous prime minister stated to parliament that it would be disclosed illustrates a more fundamental problem, namely one of who is calling the shots.
When the country’s democratically elected leader – the man with the mandate – promises something, it cannot be right that nameless and faceless spooks can make him break that promise. Shady bureaucracy must not be allowed to trump democracy. The same applies, for instance, when it comes to the prospect of admitting intercept as evidence in court, where for too long bureaucratic objections have got in the way of British justice, necessitating ‘special’ legal arrangements to impose controls and restrictions without proper trials and convictions. Politicians need to have the confidence to challenge the ‘deep state’, make decisions, and see to it that they are implemented. There were early signs of this from the Obama administration – ordering an end to forced disappearances, secret detention, extraordinary rendition and torture – and now perhaps from the Coalition here.
In a world where intelligence is used to justify state violence, including war, how it is governed – scrutinised, overseen, held to account – is of both public interest and national importance. Spying may be the second oldest profession, but the governance of intelligence needs to get with the times. In the modern information age, coupled with the decline of deference, ‘leave it to the experts’ is no longer good enough. All organisations benefit from accountability. MI5 and MI6 are no exceptions. But the Intelligence and Security Committee is weak and is too dependent on those it seeks to scrutinise. And a ‘no failure’ culture in the security service stymies progress and lends itself to cover-up.
As ippr’s Commission on National Security in the 21st Century found, legitimacy in security policy is a strategic necessity, not a liberal nicety. It is an influence-multiplier, mobilising allies and solidifying support. Legitimacy is strengthened by robust governance. It is undermined where accountability is absent, as it often appears to be when it comes to the operation of other countries’ intelligence and security agencies: cue the CIA’s drone-bombings in Pakistan by remote control from Langley, Mossad’s recent assassination in Dubai, or the murder of Alexander Litvinenko in London. In the end though, as Northern Ireland – the Guildford Four, internment, Bloody Sunday – taught us: in counter-terrorism, short cuts lead to long delays.
We live in a global security environment of shared destinies and shared responsibilities. In this interconnected and interdependent world we are going to have to collaborate with partners – not just The Five Eyes – on whom our security in part depends, and whom we cannot compel or control. How this globalised intelligence activity is governed is an important question for our times.
As the then prime minister wrote in 2009:
‘Our National Security Strategy – and the hard, often dangerous work our dedicated Armed Forces and others do in putting it into practice – is grounded in core British values of fair play, human rights, openness, individual liberty, accountable Government and the rule of law, because we cannot protect our country and our way of life unless we do so in a way that clearly exemplifies and protects those values’.
He was right. But was he in charge?