When is an inquiry not an inquiry? When it’s a secret internal review
06 July 2011
Today the Government finally published the Evidence Protocol for the “inquiry” into allegations of British complicity in torture – a year after the inquiry was announced.
The “Protocol” makes clear that the crucial final word on whether material can be made public rests not with a Judge – as in public inquiries and normal legal process in Britain - but with the Cabinet Secretary, the Government’s chief civil servant. Further, the document gives more than a hint that sparing the blushes of foreign powers will justify the withholding of relevant information from the British public. It requires the inquiry team:
“to respect the understandings and commitment made or given by HMG including through its intelligence and security agencies, to the authorities and/or agencies of any foreign government ….against public disclosure…”
A covering letter received by Liberty also makes clear that the Government proposes that torture victims should not be able to put questions to those allegedly complicit in their abuse - even by way of their legal representatives.
Liberty has long called for an investigation and always insisted that any inquiry must be fair, independent and its findings presented openly and transparently.
Shami Chakrabarti, Director of Liberty, said:
“When is an inquiry not an inquiry? When it’s a secret internal review. The use of torture by great democracies was the most shaming scandal of the War on Terror. The new Government won wide praise for promising a public inquiry but as always the devil is in the detail. Today’s disappointing announcement suggests Ministers not independent judges will decide what the public is entitled to know. It is very hard to see the point of wasting public money on such a sham.”
Louise Christian, solicitor to four of the British citizens who were detained at Guantanamo Bay, said:
“The government has called this “the detainee inquiry” but the detainees will not be allowed to know what evidence is given by the security services about the agencies’ involvement in their torture and unlawful rendition. Because the proposed inquiry does not comply with the requirements of Article 3 of the Human Rights Act or promise any meaningful involvement of those who have suffered torture and abuse, it will command no confidence on the part of those people or the public here and internationally. It is shameful that the basis on which this inquiry has been set up casts such doubt on the commitment of the government to investigate the security services properly.”
Gareth Peirce, solicitor to eleven current or former Guantanamo Bay detainees, said:
“This is a wholly inadequate response to the gravest of state crimes - torture. Ironically the Ministry of Defence exposed the torture of Baha Mousa by its personnel at a time of war to public scrutiny. The intelligence services, in contrast, are being allowed to hide. History shows it is, above all, the vice of secrecy that ensures that the elimination of torture can never be achieved.”
Liberty first expressed concerns in November 2005 that the UK government may be complicit in alleged torture practices if secret “torture flights,” carrying suspects to third countries where they may face torture, transited UK airports.
Contact: Liberty Press Office on 020 7378 3656 or 07973 831128
NOTES TO EDITORS:
1. For a copy of the protocol for the Detainee Inquiry – http://www.detaineeinquiry.org.uk/key-documents/protocol/
2. Section 134 of the Criminal Justice Act 1988 makes torture an offence anywhere in the world. The offence may either be committed by a public official or someone acting in an official capacity, or by someone else acting at the instigation of or with the consent or acquiescence of a public official or someone acting in an official capacity. It follows that aiding, abetting, counselling or procuring torture anywhere in the world or conspiring to do so are also offences under British law.
3. Timeline of Torture allegations:
- The Guardian newspaper revealed on 6 December and 12 September 2005 that airports in Biggin Hill, Birmingham, Bournemouth, Brize Norton, Farnborough, Gatwick, Heathrow, Luton, RAF Mildenhall, Northolt, and Stansted have allowed CIA or CIA-chartered jets to land temporarily. These aircraft had flown into the UK approximately 210 times since 2001;
- Liberty alerted the then-Foreign Secretary Jack Straw in November 2005 of its fears that the UK is in breach of domestic and international law by allowing CIA “extraordinary rendition” flights to land and re-fuel in Britain. A dossier of Liberty’s ongoing correspondence with the Foreign and Commonwealth Office is available on www.liberty-human-rights.org.uk;
- On 30 November 2005, Liberty called on the Police Chief Constables of Bedfordshire, Dorset, Essex, Hampshire, the Metropolitan Police, the Ministry of Defence Police, Suffolk, Sussex, Thames Valley, and West Midlands to conduct an investigation into whether the airports in their regions were being used to transport suspects to countries known to practice torture. In response to Liberty’s request to the police, Greater Manchester Police Chief Constable Michael Todd confirmed on 19 December 2005 that he would look into “extraordinary rendition” flights on behalf of the Association of Chief Police Officers (ACPO);
- In 26 May 2006, the Parliamentary Joint Committee on Human Rights concluded that the Government was not doing enough to investigate whether UK airports are being used by secret CIA flights involved in the practice of extraordinary rendition;
- On 7 June 2006 the Council of Europe released preliminary findings concluding that CIA flights carrying terror suspects likely to face torture have been given access to UK airspace and airports;
- On 26 June 2006 the Parliamentary Assembly of the Council of Europe (PACE) passed a resolution calling on all member states, including the UK, to pressure the US into ending rendition flights, closing secret prisons and changing their own laws and practices to guarantee the rights of persons captured from, detained in or transported through their states;
- In February 2007 the European Parliament’s temporary commission on extraordinary rendition approved a report accusing EU states of complicity with CIA rendition flights;
- On 21 February 2008, British Foreign Secretary David Miliband admitted that two US extraordinary rendition flights refuelled on Diego Garcia in 2002;
- In May 2008, in order to assist his defence against terrorism charges in the US, Binyam Mohamed made an application to the High Court requesting the UK government to disclose documents provided to it by the US government which gave details of his treatment by the US authorities. Mr Mohamed alleged that he had been subjected to torture while in US custody, consisting of genital mutilation, deprivation of sleep and food, being held in stress positions for days at a time, and being forced to listen to loud music and screams of other prisoners while locked in a pitch black cell, all while being forced to implicate himself and others in terrorist plots against the US;
- The High Court ruled that Mr Mohamed was entitled to the documents because they concerned wrongdoing by a third party in which the UK government had been involved. Binyam Mohamed's treatment occurred at a time when the UK intelligence services had been involved in questioning him. The UK government then issued "public interest immunity" (PII) certificates claiming that disclosure of the documents, and seven paragraphs of the High Court's judgment which summarised them, would not be in the public interest. Mr Mohamed challenged this assessment and the matter was considered by the High Court;
- Binyam Mohamed subsequently obtained the documents from the US authorities and charges against him in the US were ultimately dropped. However the UK government continued to resist publication of the 7 paragraphs of the High Court's judgment because it claimed that it would breach the diplomatic rule that intelligence provided by one government to another should not be disclosed without the consent of the government which provided it ("the control principle"). It was said that the consequence of this was that the Bush administration would reduce its co-operation with the UK intelligence services;
- The High Court accepted the UK government's concerns and decided not to publish the seven paragraphs;
- Subsequently the High Court agreed to reopen the case after it materialised that the Obama administration may not adopt the same stance as the Bush administration had done. The Court ruled that there was no proper basis for the UK government's assertion that the US government would react in the way that was claimed. It therefore ruled that the seven paragraphs should be published. The UK government appealed this decision and as a result the publication of the seven paragraphs was postponed pending the appeal;
- Meanwhile a US court ruled in an application for habeas corpus by a Guantanamo Bay detainee that Binyam Mohamed had been treated in the way he alleged (i.e. as summarised in the seven paragraphs). Despite this the UK government continued to argue that the seven paragraphs should not be published. The Court of Appeal decided on 10 February 2010 that the seven paragraphs should be published;
- On receiving the embargoed draft judgment of the Court of Appeal, the government’s counsel made the unusual request in a letter to the Master of the Rolls to delete one paragraph of his judgment. On 26 February 2010 after receiving further submissions on the issue, the Master of the Rolls rejected the government’s request and published the disputed paragraph with only minor alterations;
- In separate litigation, Binyam Mohamed and a number of other former Guantanamo Bay detainees brought civil claims for damages against the UK government for involvement in their ill treatment and unlawful detention by the US authorities. The government asked the High Court to adopt a “closed material procedure” which would involve the claimants and their lawyers being excluded from the hearing of the case, and the issuing of a “closed judgment” which they would not be entitled to see.
- On 18 November 2009 the High Court ruled that it had the power t; adopt such a procedure. The claimants appealed that ruling;
- On 4 May 2010 the Court of Appeal ruled that Court would not adopt the ‘secret procedure’;
- On 6 July 2010 The Prime Minister announced an inquiry, to be chaired by Sir Peter Gibson, into allegations of British complicity in torture. A former senior judge, Sir Peter Gibson’s also has a continuing role as Intelligence Services Commissioner which he has held since 2006 (not due to end until 2012);
- On 16 November 2010 the Government announced the settlement of civil claims by former Guantanamo detainees;
- 24 – 27 January 2011, the Supreme Court heard the Government’s appeal against the Court of Appeal ruling on closed hearings (judgment still awaited).