By William Fisher
Breaking from President Barack Obama’s insistence on “moving forward, not backward” in investigating U.S. detainee torture, the British Government appears poised to investigate U.K. complicity with the American Central Intelligence Agency (CIA) in “rendering” British citizens and residents and treating them with “enhanced interrogation” techniques.
The British newspaper, The Guardian, is reporting that Prime Minister David Cameron and the new foreign secretary, William Hague, are understood to have agreed the terms of a judge-led inquiry into claims that British security services were complicit in torture of terrorism suspects.
The newspaper says the inquiry is expected to offer compensation in cases, where necessary, and is likely to be held in private. A judge-led inquiry or commission may have the advantage of bringing together the 13 separate compensation cases currently going through the courts.
It claims those cases are leading to complex demands for the disclosure of documents that the intelligence services may not welcome, and are finding difficult to control.
U.S. Constitutional lawyer and Harper’s magazine writer Scott Horton writes of the inquiry in his on-line column of Harper’s Magazine. He says the inquiry’s focus on compensation to torture victims shows that the British Government takes seriously its obligations under the Convention Against Torture to compensate victims of torture carried out by those acting under color of office.
“Compare this with the dismissive posture taken by the U.S. Justice Department, which has sought zealously to foreclose all paths of compensation and pointedly ignores America’s formal treaty obligations, which are to be implemented by the Executive,” he says.
The UK inquiry is independent of the question of criminal prosecutions. As The Guardian notes, a police investigation is still pending, and it is likely to lead to a recommendation to the Director of Public Prosecutions on specific criminal charges.
Some of the litigants have demanded an inquiry as part of their civil claims. Cameron is understood to have discussed the issue in recent days with President Obama, but no decision is expected very shortly.
While some in Whitehall have said no inquiry can be held while so many alleged victims of torture and rendition are suing the government, most legal experts believe it is possible, the Guardian said.
The government's reviewer of terrorism legislation, Lord Carlile, said he did
not believe the inquiry could be held until the Metropolitan police had decided whether to recommend to the director of public prosecutions (DPP) that charges against intelligence agents should go ahead. But he said this was not the universal view.
Hague first spoke of the need for a judge-led inquiry after the coalition agreement, but his remarks appeared to unsettle the intelligence services and required further discussion on Cameron's national security inquiry.
Complex issues such as perjury, the publication of evidence and whether those seeking compensation would be required to drop all other claims will need to be agreed.
Backbench MPs and human rights groups hailed the government's imminent decision on an inquiry into UK involvement in torture and rendition while warning ministers that it needed to be independent and have a broad remit.
Andrew Tyrie, the Tory MP whose all-party parliamentary group on extraordinary rendition has been campaigning on this issue for several years, said: "It is essential that the judge is independent, and seen to be independent, and makes as much as possible of his or her findings public. It is in the national interest that we get to the bottom of this, get to the truth and move on."
Tyrie said the inquiry needed to examine not only complicity in torture, but also involvement in the US rendition program, while others said the inquiry should also embrace abuses perpetrated by British armed forced in Iraq.
David Davis, the former shadow home secretary, also stressed that the inquiry needed to be led by a judge who had access to all relevant documentation. "It is vital that such an inquiry is led by a senior and impartial judge who is able to establish the facts beyond any doubt, to remove this stain on Britain's reputation, and to ensure that such allegations can never be made again," Davis said.
"To do this he must have unfettered access to all the people and papers related to this matter and should be able to publish anything he thinks is in the public interest, to ensure that we can draw a line under this issue once and for all."
Speaking for the Liberal Democrat coalition partners, European Parliament member (MEP) Sarah Ludford said, “Only a very thorough cleaning of the stables can re-establish Britain’s reputation as a nation of principles rather than a sidekick to appalling human rights abuses. It should also be judge-led, held as far as possible in public, and not rule out the possibility of prosecutions.”
Horton says her reference to being a “sidekick to appalling human rights abuses” is clear enough. It’s an unpleasant consequence of what used to be called the “special relationship.”
“For those in the White House who argue for a policy of ‘don’t look back’ that violates their oath to uphold the Constitution and the criminal laws of the United States, the British government is furnishing an example. This is how a modern democracy—and one under Conservative leadership at that—deals with the legacy of torture, Horton said.
The question of complicity between the UK security services and the U.S CIA has continued to raise contentious issues between the two countries. Earlier this year, a former Guantanamo prisoner and British resident, Binyam Mohamed, sued the U.K. government for complicity with the CIA in his rendition and torture and requested documents to substantiate his claims.
The U.S. Government declined to grant the High Court permission to make these documents public and allegedly threatened that their disclosure could undermine relationships between the two countries’ intelligence services.
The Court eventually ordered the documents made public.
The central figure in this British case is the same Binyam Mohamed who appealed a separate U.S. case, on behalf of himself and four other terror suspects, to the U.S. Circuit Court of Appeals in San Francisco. In that case, government lawyers from the Obama Administration sought a decision not to reinstate a case that was thrown out by a lower court last year because government lawyers argued successfully that allowing the case to go forward would jeopardize U.S. national security.
In opposing reinstatement of the case, Obama’s lawyers used the same “state secrets” privilege used by Bush lawyers in the original case.
Stafford Smith told IPS that his letter to President Obama speaks for itself. He says he doesn’t know who redacted the materials he submitted to the Defense Department.
President Obama’s strong preference for not mounting a full-scale investigation of CIA prisoner treatment emerged early in his administration, despite the release by the Justice Department of a series of “torture memos” written by Bush-era DOJ senior lawyers. The memos authorized and explained enhanced interrogation techniques, including waterboarding.