On Monday March 30, in a committee room in the House of Commons, Diane Abbott MP chaired a meeting entitled, "Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts," to discuss the stories of some of the men held as "terror suspects" on the basis of secret evidence, and to work out how to persuade the government to change its policies. A detailed report of the meeting is available here, and the profiles of five prisoners are available by following this link), but I thought it was also worth addressing a question posed by the meeting’s title, and to ask if it is fair to compare the bitter fruits of Britain’s anti-terror legislation with the iconic symbol of the Bush administration’s "War on Terror."
In some ways, of course, it is not. The British government, while clearly complicit, to some extent, in the rendition and torture of prisoners by or on behalf of the Bush administration, and in interrogating them while they were held in illegal and unjustifiable conditions, was not directly involved in their industrial-scale rendition, in the establishment of a vast offshore prison devoted to coercive intelligence-gathering, or in the direct implementation of torture, under the cover of flawed legal advice which included blatant attempts to redefine its very meaning.
That said, there are, in fact, many unnerving similarities between the Bush administration’s policies, which prompted universal condemnation on an unprecedented scale, and those implemented in the UK, which have caused barely a ripple of protest.
The similarities between Guantánamo and the UK terror laws
At Guantánamo, since January 2002, the US government has, at various times, held 779 men, mostly without charge or trial, who were picked up in 20 different countries but detained neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects, to be tried in a recognized court. When, after three and a half years, the Supreme Court ruled that they had habeas corpus rights, the government responded not by allowing them access to the US courts, but by holding military tribunals, designed to justify their detention through the use of secret evidence that the prisoners — known as "detainees" — were not allowed to see.
In the UK, since December 2001, the British government has, at various times, held around 70 men without charge or trial, refusing to try them as criminal suspects in recognized courts. The policy began with the imprisonment of 17 men in Belmarsh high-security prison, but when, after three years, the Law Lords ruled that their imprisonment was in contravention of the Human Rights Act, the government responded by introducing control orders and deportation bail, both of which involve draconian restrictions that amount to house arrest. Throughout this whole period, the government has justified the men’s detention through the use of secret evidence that the prisoners — known as "detainees" — are not allowed to see.
Another similarity concerns attempts by both the British and American governments to bypass their obligations under the UN Convention Against Torture — which prevents the return of foreign nationals to countries where they face the risk of torture — by reaching diplomatic agreements with various dictatorships in North Africa and the Middle East. These purport to guarantee that repatriated prisoners will be treated humanely, but in reality they have proved worthless.
Deportation to Tunisia
In June 2007, for example, after the US government signed a "diplomatic assurance" with the Tunisian dictator Zine El Abidine Ben Ali, so that prisoners cleared for release from Guantánamo could be repatriated, two prisoners who were returned — Lotfi Lagha and Abdullah bin Omar — reported that they were threatened and mistreated in Tunisian custody. They were then subjected to show trials, apparently based on evidence obtained through the torture of other prisoners, and received prison sentences of three and seven years.
In the UK, the British government has been involved in a similar policy, signing "memoranda of understanding" (MoUs) in 2005 with Jordan, Libya and Lebanon, and attempting, without success, to do the same with Algeria, in order to deport "detainees" held on the basis of secret evidence, instead of putting them forward for trial in the UK. This is apparently because of the British government’s refusal to join the rest of the world in finding ways to use information obtained by the intelligence services in court, while preserving the confidentiality of sources and methods (PDF), but it is difficult not to conclude that, in fact, the government has been swept up in its own rhetoric, and has actually lost sight of the correct balance between liberty and security.
There are further disturbing parallels. After the demonstrable failure of the Americans’ "diplomatic assurance" with Tunisia, a District Court judge intervened to prevent the return of a third Tunisian — Lotfi bin Ali — in November 2007, arguing that he could suffer "irreparable harm" that the US courts would be powerless to reverse. Since then, no other Tunisians have been repatriated from Guantánamo, and, although the British government subsequently persisted in attempts to deport Tunisians from Europe, intervening in an Italian case, Saadi v. Italy, which was being considered by the European Court of Human Rights at the same time, the British attempts were struck down by the Court, which ruled, in March 2008, that attempts to return Nassim Saadi to Tunisia would be a clear breach of Article 3 of the European Convention on Human Rights (which states that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment").
Deportation to Libya
Both the US and the UK have faced struggles with repatriating foreign nationals to Libya, not because of any difficulties either government has with its enemy-turned-ally, the dictator Moammar Gadhafi, but because courts on both sides of the Atlantic have intervened to prevent Libyans from being repatriated: a Libyan in Guantánamo, Abdul Rauf al-Qassim, has been resisting his enforced return since June 2007, and in the UK, attempts to return 12 Libyans accused of having connections with terrorism were scuppered when, in April 2008, as the Independent described it, the Court of Appeal "gave a damning verdict on promises" that two men — identified only as AS and DD — "would not be tortured in their home country." The judges ruled that the government "failed to give enough weight to the risk of torture."
What is particularly galling in the Libyans’ case is that nowhere along the line has a single voice in authority been heard pointing out that those who once opposed Colonel Gadhafi’s regime — and are now wanted in his dungeons — would, not so long ago, have been regarded as our friends, but that observation, of course, succinctly demonstrates an uncomfortable truth: that yesterday’s freedom fighters can all too easily become today’s terrorists when the winds of politics change.
Deportation to Algeria
Where both the British and American governments seem to be in accord — and seem also to be meeting with some success in their mission to discard the UN Convention Against Torture and the European Convention on Human Rights — is with Algeria. Although some Algerians in Guantánamo — most notably Ahmed Belbacha, who had lived peacefully in the UK for two years before he took an ill-timed holiday in Pakistan — are still striving to prevent their enforced repatriation from Guantánamo, others are on record as having returned willingly, even though the fate that awaited them — whether freedom, or a bent trial followed by further imprisonment — seems to be akin to a round of Russian Roulette.
Given the choice of two evils, eight Algerians (see here, here, here, here and here) settled for Algeria over Guantánamo between July 2008 and January 2009, and the same thing has happened with a number of "terror suspects" in the UK, who, exhausted by the imprisonment and house arrest foisted on them by the British government, on the basis of unknowable and unchallengeable secret evidence, opted to return "voluntarily " to Algeria, with mixed results, as Amnesty International has reported (PDF). Some were released without charge, while others received prison sentences after dubious trials, and in all cases it has been next to impossible for human rights observers to monitor what has been happening with the kind of diligence that is necessary.
The British government — or the Law Lords, at least — know how shaky is the assumption that Algerians returned from the UK will be treated humanely and given fair trials, for two particular reasons: firstly, because the Algerian government has refused even to sign a worthless "memorandum of understanding" and has also refused to allow any British representatives to monitor what happens to those who are returned, and secondly, because, when the Lords approved the deportation in February of two prisoners — BB and U — they resorted, as I explained in an article at the time, to claiming that President Bouteflika has improved Algeria’s human rights record, and has "acknowledged and approved a letter from the Prime Minster which included the statement that ‘this exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms.’"
In quiet desperation, the Lords also quoted the judges of SIAC (Britain’s secret terror court), who had noted that "Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties," and concluded that, as a result, "it is barely conceivable, let alone likely, that the Algerian government would put them at risk by reneging on solemn assurances." As I noted at the time, it was hardly reassuring that, if returned prisoners did find themselves abused, they could be comforted by the fact that the government, SIAC and the Law Lords had thought that such abuse was "barely conceivable."
Deportation to Jordan
And finally, while the US managed to return all the Jordanians it was holding in Guantánamo without apparent incident, the British government faced an even more uphill struggle to conclude that it most-celebrated would-be deportee, Abu Qatada, would be treated humanely on his return. In the same ruling in which the Law Lords declared that it was safe for BB and U to be returned to Algeria, they concluded that Abu Qatada would not be tortured, and would receive a fair trial — or at least, would not receive "a flagrant denial of a fair trial" — for two reasons; firstly, because, in October 2005, a human rights organization in Jordan "signed an agreement with the United Kingdom government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU," and, secondly, because "the fact that he would have a very high profile, coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it."
The judges made their decision in spite of the fact that Abu Qatada had been previously tortured in Jordan, and had been convicted in absentia in a terror trial at which witnesses claimed they had been tortured to make false confessions. In addition, their ruling was disappointing because a "likelihood" that he would not be tortured is far from reassuring, and seems, instead, to be another form of Russian Roulette that plays games with a man’s life and with the universal torture ban.
An unnerving conclusion
For now, the deportations of Abu Qatada, BB and U are on hold, pending a review by the European Court of Human Rights, which may mean — if both torture and judicial secrecy are regarded with the horror and scorn that they deserve — that the British government will eventually be obliged to abandon its blanket use of secret evidence and its labyrinthine attempts to circumvent the universal torture ban, by allowing the use of intercept evidence and reintroducing fair trials.
Ministers might also want to reflect that, although Barack Obama has not magically dismantled the legacy of the Bush administration’s "War on Terror," he is at least committed to closing Guantánamo within a year, has established a review of the prisoners’ cases that has started to approve the release of prisoners, and is continuing to allow judges — empowered by a Supreme Court ruling last June — to challenge the Bush administration’s secret evidence, with the result that, in 24 of the 28 cases so far reviewed, the judges involved have ordered the prisoners’ release because the government failed to provide sufficient evidence that they should ever have been held in the first place (a summary is here, and see here for the latest decision).
In Britain, in contrast, the government would still have us believe that all of its supposed "terror" evidence is infallible, and cannot be challenged, even though much of what is known appears to be misguided intelligence, or intelligence obtained through torture, and even though glaring errors on the part of the Home Office and the security services have been repeatedly noted over the last seven years. This not only makes a mockery of due process; it also leaves the government — and Home Secretary Jacqui Smith in particular — looking like the last bastion of the kind of unprincipled and unfettered executive power embraced by former US Vice President Dick Cheney and his chief of staff David Addington, the architects of the "War on Terror."
As Jane Mayer explained in her book The Dark Side, in the summer of 2002, when John Bellinger, the National Security Council’s top lawyer, tried to approach the White House counsel, Alberto Gonzales, to seek a review of the prisoners’ cases — expressing some of the same doubts about the US intelligence services that lawyers have sought to expose in relation to the intelligence services in the UK, and that judges in the US have finally been allowed to prove in some of the Guantánamo cases — he was met with the sternest of rebukes, when a scheduled meeting was hijacked by David Addington, who declared, imperiously, "No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it."
Without fair trials for "terror suspects" in the UK, Jacqui Smith, like Jack Straw, David Blunkett, Charles Clarke and John Reid before her, appears to be nothing less than David Addington’s Anglicized twin, and in Addington’s statement above, all that needs changing are the words "President" to "Tony Blair," and "enemy combatants" to "terrorists," and the picture is complete. In democracies founded on the rule of law, it is not sufficient for an elected minister to maintain, as President Bush declared for over seven years, that it was true because he said so.