By Cynthia Banham
Centre for International Governance and Justice
Six days before the Christmas just gone, the British government unexpectedly released the public version of the report of the Detainee Inquiry into torture complicity by British officials after 11 September 2001. Established in 2010, the Detainee Inquiry was ordered by Prime Minister David Cameron soon after taking office. It followed a series of damaging court cases brought by Britain’s detainees in the war on terror (citizens and residents) over their alleged torture, and the UK’s involvement.
The Report of the Detainee Inquiry raises many difficult questions for the government and its intelligence agencies, but makes no findings. Some of the questions concern official advice given to British intelligence agents who witnessed the torture of terrorist suspects to the effect that “there was no obligation to intervene”. Others relate to whether the UK became “inappropriately” involved in the US’s extraordinary rendition program. The 115-page report, which the government held onto for 18 months before releasing, is an incomplete work. The Inquiry, headed by former judge Sir Peter Gibson, was abandoned prematurely in 2012 before it could hear from any witnesses, ostensibly because of fresh criminal investigations into new torture and rendition cases involving Britain and Libya.
The report’s unfinished nature, and the government’s response to it, mark a disappointing finale to what had initially promised to be a thorough exercise in torture accountability. This is in a post-11 September 2001 context, where examples of torture accountability are few and far between. The Detainee Inquiry’s report nominated 27 issues it believed required further examination. On releasing the report, the government announced it was handing them over to a parliamentary committee to pursue – a committee previously criticised for its lack of independence from the prime minister and its failure to properly examine the rendition issue. The decision sits at odds with Cameron’s previous comments, made as opposition leader and restated soon after he took office as prime minister, about the importance of holding a judge-led inquiry into allegations of British torture complicity. In July 2010, for example, Cameron told the House of Commons:
While there is no evidence that any British officer was directly engaged in torture in the aftermath of 9/11, there are questions over the degree to which British officers were working with foreign security services who were treating detainees in ways they should not have done… The longer these questions remain unanswered, the bigger will grow the stain on our reputation as a country that believes in freedom, fairness and human rights. That is why I am determined to get to the bottom of what happened… an independent inquiry, led by a judge, will be held. It will look at whether Britain was implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11.
The issues raised by the Inquiry cover four topics: interrogations and treatment, rendition, guidance and training, and government policy and communication. Among the most significant issues are: Did UK intelligence officers have knowledge of inappropriate interrogation techniques applied by the personnel of other countries? Was there reluctance in some cases to raise detainee issues at all, or sufficiently robustly, with liaison partners? Did UK intelligence agencies inappropriately continue to engage with liaison partners in the cases of individual detainees after concerns about treatment had been identified? Were the agencies’ own questioning of detainees appropriate having regard to the Geneva Conventions’ prohibition on coercive treatment? Should the agencies have been quicker to identify a pattern of detainee ill-treatment by foreign liaison partners?
The Cameron government’s decision to have the parliamentary Intelligence and Security Committee (ISC) continue the work the Detainee Inquiry was not allowed to finish met with criticism from human rights NGOs, British MPs, and members of the Detainee Inquiry. While the government has left open the possibility that, following the completion of the ISC’s work, it will hold another judicial inquiry, this seems a distant prospect.
The Detainee Inquiry had a troubled history from the start, with its legitimacy called into question on day one. Gibson had for the four years prior to the Inquiry’s establishment served as Intelligence Services Commissioner, prompting questions about his impartiality. In addition, the protocol governing the Inquiry gave the government the final say as to what evidence should be disclosed to the public. It also stipulated that, apart from the heads of the security and intelligence services, all other members of these agencies would give their evidence in private, meaning former detainees could not challenge the official version of events. In 2011, the detainees, through their lawyers, announced that they would take no part in the Inquiry. At the same time, a group of 10 high profile domestic and international human rights NGOs declared they were boycotting the Inquiry too.
One wonders whether, given the situation today, NGOs should have been so quick to drop their support for Gibson’s probe. As the situation stands, a parliamentary inquiry with a dubious record of scrutinising the government over war on terror human rights issues will now see out the final investigations into British torture complicity. A judge-led investigation into the conduct of Britain’s intelligence agencies – albeit an imperfect one – was an accountability opportunity that does not come along very often. In relation to the war on terror, it may not present again.
In many ways the turn of events in Britain is consistent with the pattern set by other liberal democracies also implicated in the use of torture in the war on terror. US President Barack Obama has refused to engage in any form of political accountability for state torture carried out during the war on terror. Obama’s view is that “nothing will be gained by spending our time and energy laying blame for the past”. In Australia, a closed inquiry was carried out by the Inspector-General of Intelligence and Security into the actions of Australian officials in connection with the extraordinary rendition of one of its citizens, Mamdouh Habib. The torture claims of another citizen detained at Guantánamo Bay, David Hicks, have gone ignored. Canada’s robust public judicial inquiry into the rendition and torture of its citizen Maher Arar stands out as a glaring exception to the general reluctance by the US and its allies to deal openly with the torture issue.
There are however some interesting points of comparison to be made between the British and Australian governments’ handling of the torture issue that emerge from the Report. One in particular points to curious differences in the two countries’ political cultures, and the contrasting ways that human rights play out politically in each polity.
On the day the Cameron government released the Detainee Inquiry report, Jack Straw, who was Foreign Secretary in the Labour Blair government in 2002, when British nationals were first transferred to Guantánamo Bay, spoke in Parliament. Straw was concerned to defend his role in the matter – particularly in light of the Inquiry’s implied criticism of his handling of the detention of Britons in Cuba, and of the allegations of their abuse and mistreatment. One of the 27 issues raised by the Inquiry for further investigation was whether the government should have done more to secure the release of British nationals and UK long-term residents from Guantánamo.
Straw told the House of Commons that in early January 2002 he “agreed that the UK should not stand in the way of UK nationals who were detained in Afghanistan by the United States being transferred to Guantánamo Bay”. He added: “I did so after careful legal advice and because, at the time, it was the only practical alternative to their remaining in custody in Afghanistan”. Straw then asked (addressing the Cameron government Minister without Portfolio, Kenneth Clarke):
But will the right hon. and learned Gentleman also accept that we never agreed in any way to the mistreatment of those detainees or to the denial of their rights, that we made repeated objections to the United States Government about these matters, and that I was able to secure the release of all British detainees by January 2005?
Why is this an interesting point of difference? The UK, unlike Australia and, for that matter, Canada, refused to allow its citizens at Guantánamo Bay to be subjected to the US military commission process (which in its original incarnation permitted the use of evidence obtained by torture). Britain pulled its citizens out of Cuba in 2004 and 2005: in 2006, it started asking for its residents back too. For Straw, it was a point of pride – or at least a factor he was happy to use in defending his conduct – that he stood up to the US for British citizens, and had secured their release by early 2005 (two years before Australia, and seven years before Canada whose last citizen, Omar Khadr, was only released in 2012).
Compare this to Australia, where standing up for the rights of an Australian Guantánamo Bay detainee is not something politicians from the major political parties have ever sought to boast about. To the contrary, when Australia repatriated Habib from Guantánamo Bay in 2005, the government issued a press release in which it seemed almost to express regret that it had been forced to bring him home. “It remains the strong view of the United States that, based on information available to it, Mr Habib had prior knowledge of the terrorist attacks on or before 11 September 2001,” the press release noted.
As to Hicks, who was brought home in 2007, in his memoirs the prime minister at the time, John Howard, described the case as a “barnacle”. It was an issue that had “really aggravated sections of the electorate for no long-term policy gain and where no important principle was at stake”. It was for this reason the Hicks matter had to be resolved: to placate voters ahead of the 2007 federal election. The defence of human rights is rarely good politics in Australia.