“Whitewash” is a powerful word, but when it comes to the British government’s proposed judicial inquiry into British complicity in torture abroad in the years since the 9/11 attacks, Amnesty International and a number of prominent British NGOs — including Cageprisoners, JUSTICE, Liberty, the Medical Foundation for the Care of Victims of Torture, Redress and Reprieve — are so alarmed that it “will fail to meet the UK’s obligations under international and domestic law,” as the Guardian explained on Wednesday, that they are “considering whether they should boycott the inquiry, due to be headed by Sir Peter Gibson, because they fear it will not be sufficiently independent, impartial or open to public scrutiny” — in other words, they are concerned that it will be a whitewash.
Ever since Prime Minister David Cameron announced the inquiry last July, deep doubts have been expressed about the scope of the inquiry and fears of a whitewash. Less than two weeks after Cameron’s announcement, Reprieve’s director, Clive Stafford Smith, wrote a letter to Gibson in which he called on him to step down from his role as the judge in charge of the inquiry, complaining that “his impartiality is fatally compromised,” and noting that, “As the Intelligence Services Commissioner (ISC), it has been Sir Peter’s job for more than four years to oversee the Security Services,” and as a result “he cannot now be the judge of whether his own work was effective.”
In September, the nine NGOs mentioned above wrote a letter to Sir Peter Gibson outlining their concerns, explaining that, as well as being prompt, independent, thorough and subject to public scrutiny, the inquiry must also involve the participation of the victims. “Survivors or victims must be involved in the process to ensure their right to effective investigation and redress, and special measures must be adopted to ensure this participation is supportive, safe and effective,” they wrote.
The NGOs also explained that the inquiry’s mandate must include “the need to hold accountable those responsible for serious human rights violations,” including, if required, senior officials. They wrote that the inquiry “must be able to pronounce on state responsibility for knowledge and involvement in the serious human rights violations that have been alleged and to identify any individuals responsible for such abuses, including establishing the responsibility of superior officers for crimes committed by subordinates under their effective control.”
These points were made forcefully in the September letter, but they were, however, couched in polite terms, with the NGOs “offer[ing] a number of constructive comments to ensure the success of the inquiry.” In contrast, in a recent letter from the NGOs, which followed a number of meetings with Gibson, the groups involved expanded on the concerns outlined in September, stating, in no uncertain terms that, as the Guardian put it, “the credibility of the inquiry risks being undermined by the high level of secrecy it appears will surround the hearings — at the insistence of the very agencies whose activities are being scrutinised.”
In particular, the NGOs expressed concern that, as the Guardian put it, the inquiry would “fail to meet the UK’s obligations under the European convention on human rights,” which “establishes standards that must be met by official investigations into torture.” These include “the need for a mechanism independent of government to decide what evidence should be made public, and powers to compel evidence.”
In the letter, the NGOs specifically warned that a higher level of public scrutiny is needed “to prevent any appearance of [the government’s] ongoing collusion in or tolerance of unlawful acts.”
When David Cameron announced the inquiry in July, he stated that the reputation of Britain’s security services had been “overshadowed” by allegations of complicity in torture, and had decided that it was “time to clear this matter up once and for all.” Although the government had not been compelled to order an inquiry, pressure for it had come from a seemingly unlikely source — William Hague, the foreign secretary, who had spoken about it on numerous occasions when in opposition — and was driven by a recognition that, particularly with reference to Binyam Mohamed, a British resident who was rendered by the CIA to Morocco (where he was held and tortured for 18 months) after being seized in Pakistan, and was then held in Guantánamo until his release in February 2009, there had been what the Guardian described as “a series of damning court judgments that detailed MI5’s knowledge of the way in which Binyam Mohamed was being tortured before one of its officers questioned him.”
This was all that had come out in court, and it had involved an 18-month game of cat-and-mouse between two high court judges and foreign secretary David Miliband, who had repeatedly (and rather desperately) warned that public disclosure of a summary of Mohamed’s treatment at the hands of the Americans, compiled by the judges, would endanger the intelligence-sharing relationship between the US and the UK.
In February last year, the Court of Appeal brought his obstruction to an end and ordered the release of the summary, but much more of Mohamed’s story — including claims that he was visited in Morocco by a British agent, and by a prisoner-turned-informer captured in Afghanistan — remains barely reported, although it clearly needs to be investigated by Sir Peter Gibson, and is, in addition, information that, like Mohamed’s torture in Pakistan, is of importance to the public because it touches on questions of complicity in torture that should not be hidden from view in a country that claims to treat torture with the repugnance it deserves.
The case of Binyam Mohamed was the most high-profile case involving a prisoner who ended up in Guantánamo, but on a domestic level the government was also under pressure because of an accumulation of media reports — largely in the Guardian — providing disturbing details of “terrorism suspects being questioned by MI5 and MI6 officers after being tortured in secret prisons around the world.”
They include Rangzieb Ahmed, from Rochdale, who received a life sentence on terrorism charges in December 2008, although he has claimed that, in the 13 months that he was held In Pakistan before he was returned to the UK to face a trial, he was tortured — and had three of his fingernails pulled out — by Pakistani operatives who asked him questions drawn up by MI5 and Manchester police, even though both parties knew that their Pakistani counterparts used torture. Ahmed has just lost an appeal against his sentence, on the frankly risible basis that, although “he may have been subjected to the ‘lesser evil’ of cruel, inhuman or degrading treatment, ‘torture had not been demonstrated to have occurred, and had been demonstrated not to have occurred before the sole occasion when Rangzieb said he had been seen by British officers,’” as the Guardian described it.
As the Guardian also explained, getting to the heart of what should be the inquiry’s remit, if there is not to be a whitewash, “Gibson is expected to examine the degree of ministerial oversight of such operations and the extent to which ministers and intelligence agents were complicit in torture and illegal ‘rendition’ of terrorism suspects from one country to another.”
There are, however, two more issues relating to the inquiry that are of concern, and that need to be resolved before it can begin, and both, at least partly, involve Shaker Aamer, the last British resident in Guantánamo, who is still held despite being cleared for release by a military review board in 2007, when President Bush was still in power.
The first of these concerns an ongoing Metropolitan Police inquiry into allegations that representatives of MI5 ands MI6 were complicit in torture. One, as the Guardian put it, “involves allegations that an MI6 officer was involved in the mistreatment of one detainee, who has not been publicly identified,” and the other involves claims made by Shaker Aamer, which were first exposed in a court case in the UK in December 2009, that British agents were in the room when he was tortured by US operatives in the US prison in Kandahar prior to his transfer to Guantánamo in February 2002.
When he announced the inquiry in July, David Cameron told the House of Commons that it could not start “while criminal investigations are ongoing.” One other investigation, into the agent who interrogated Binyam Mohamed in Pakistan, concluded last November with Keir Starmer, the Director of Public Prosecutions, stating that there was insufficient evidence to press charges, although he made a point of noting that a “wider investigation into other potential criminal conduct” was still ongoing. However, as the Guardian reported, “Gibson has indicated that he expects his inquiry to begin hearing evidence in March, which may indicate that he has reason to believe neither police investigation will result in criminal charges.”
Even if this is true, Shaker Aamer’s allegations of torture provide another obstacle to the launch of the inquiry, as it cannot legitimately begin while he is still held, because he is undoubtedly an important witness, whose testimony Sir Peter Gibson will need to hear if the inquiry is to have any credibility. The Guardian noted that, although Jamil Rahman, a British citizen, alleges that British agents “walked into a cell in Dhaka, Bangladesh, where he was being tortured, but retreated, laughing, before returning to question him later,” Shaker Aamer is the only prisoner to have “alleged that he was tortured while British intelligence officers were present.”
Ever since the inquiry was announced — timed in particular to suppress alarming disclosures of the complicity of Tony Blair and Jack Straw in the rendition to Guantánamo of British citizens and residents, which were emerging, at the orders of senior judges, from a civil claim for damages against the government that was brought by seven former Guantanamo prisoners — the need for Shaker Aamer’s return has been pressing.
When 15 former prisoners reached a financial settlement with the government in November, it was revealed that Shaker Aamer was also included in the settlement, although there was, of course, no way that he could conclude the settlement while he was still in Guantánamo. In subsequent statements, former prisoners revealed that they had all pushed the coalition government for his return, alerting ministers and civil servants to his plight, and his importance to them, and apparently securing a promise that, unlike the Labour government — which, it was revealed, had neglected his case, while stating in public that they were pressing for his return — they would be pushing their US counterparts to release him.
Despite this, Shaker Aamer is still held, and while the nine NGOs mentioned above are right to press the government and Sir Peter Gibson to make sure that the proposed inquiry will not be a whitewash, it remains even more troubling that plans for the inquiry appear to be moving ahead without securing Shaker Aamer’s return.
To his lawyers, and to his supporters, Shaker Aamer is “the man who knows too much,” a fearless advocate for the prisoners’ rights, who knows an enormous amount about the dark secrets of Guantánamo, including the deeply suspicious deaths of three prisoners in June 2006. This almost certainly explains why the US government is reluctant to release him, and why the UK may not be in any hurry to have him back here either, but if David Cameron is to have any chance of drawing a lne under British complicity in torture, the immediate return of Shaker Aamer is just as important as the terms of reference for the government’s inquiry.