The British government has sought to undermine and continues to undermine the global ban on torture in a variety of ways. Taken together, these various policies pose a significant danger.
Let me make it clear, we unreservedly condemn the use of torture and have worked hard with our international partners to eradicate this practice. However, it would be irresponsible not to take appropriate account of any information which could help protect national security and public safety.
I am startled, even a little dismayed, at the suggestion - and the acceptance by the Court of Appeal majority - that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.
One might hope that the British government should need no arm-twisting in order categorically to rule out evidence gained under torture. Sadly, that has not been the case. The intervention of the countrys highest court was required to close the door on torture evidence.
The issue arose in connection with hearings of the Special Immigration Appeals Commission (SIAC), the body tasked with hearing deportation appeals for those alleged to be a threat to national security. In a ruling criticised by Human Rights Watch and other human rights groups at the time, the UK Court of Appeal ruled by a 2-1 majority in August 2004 that the British government was entitled to rely in the SIAC on evidence obtained under torture.28 The court acknowledged that this could put the UK in conflict with international law. But the majority judgment considered that the government was not precluded from relying on evidence which had or might have been obtained through torture by agencies of other states. The only requirement was that the government had neither procured nor connived at the torture.
Crucially, the majority in the Court of Appeal held that a recognition of [the governments] responsibility for national security was required. That conclusion, the court said, was not altered by article 15 of the United Nations Convention against Torture, which prohibits evidence obtained under torture from use in any proceedings.29 In other words, the court allowed international law to be balanced againstin effect, trumped bythe needs of security.
The appeal court ruling of 2004 was not allowed to stand. Britains highest court, the House of Lords judicial committee (commonly known as the law lords), unanimously overturned the judgment in December 2005. Seven of Britains most senior judges dismissed the argument that torture evidence should not as a matter of principle be excluded from British legal proceedings. Lord Bingham noted,
As quoted above, Lord Bingham said he was dismayed at the British governments apparent readiness to override this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken.Other judges on the law lords panel were equally clear-cut in their judgments.
After this humiliating rebuff, the UK government claimed it had merely sought reassurance on a technicality. Charles Clarke, then home secretary, declared, I welcome the decision, which gives clarity about an extremely important and very difficult issue.31 The Guardian described Clarkes claim as chutzpah. It is difficult to disagree with that analysis, suggesting certain brazenness on the governments part. If the government welcomed the ruling, one must ask why it fought so hard against the ban on torture evidence being recognized.
Despite the home secretarys attempt to put a brave face on the defeat, the governments submission to the court had been unambiguous in its claim that torture evidence should not be excluded. The government had argued, There is no rule of law which renders inadmissible statements of a third party obtained by means of torture or inhuman or degrading treatment inflicted by the agents of a foreign state.32The law lords decision slammed shut the door in the face of that argument, and Britains attempts to consume the fruits of the poisoned tree. Despite the law lords historic judgment, however, the government appears determined to bend the rules on torture.
[T]he circumstances of our national security have now self-evidently changed and we believe we can get the necessary assurances from the countries to which we will return the deportees, against their being subject to torture or ill-treatment contrary to Article 3.
I strongly share the view that diplomatic assurances do not work as they do not provide adequate protection against torture and ill-treatment...
The international ban on sending people back to the risk of torture is clear-cut. In the words of Article 3 of the UN Convention against Torture:
Article 3 of the European Convention on Human Rights is similarly unequivocal: No person shall be subjected to torture or to inhuman or degrading treatment or punishment. The European Court of Human Rights has repeatedly affirmed that under the Convention, the implicit prohibition on being returned to the risk of torturean explicit ban under the UN Conventionderives from the general and absolute ban on torture in the ECHR.36 The prohibition against torture would be meaningless if governments could get around it simply by sending a suspect to be tortured elsewhere.
The British government has long sought to devise ways of getting around these international prohibitionsmost notably, through diplomatic assurances. Diplomatic assurances in this context refer to promises from governments with poor track records on torture that a particular person will not suffer such treatment upon return. Unsurprisingly, these promises have proved unreliable, as cases described below illustrate. The British government, however, appears more determined than ever to force them through, no matter what the consequences to the individual at risk or to the global ban on torture. Whether the assurances will be sufficient to persuade British courts, to which every person subject to deportation can appeal on human rights grounds, remains to be seen.
In 1999, the UK government wished to deport an Egyptian, Hani Youssef, back to Egypt. Home Office and Foreign Office lawyers told the prime minister that this would be in breach of international law, including Article 3 of the European Convention on Human Rights quoted above. The Home Office pointed out that assurances would in practical terms be useless:
Tony Blair was not impressed. The prime ministers private secretary wrote: [The prime minister] believes that we should use whatever assurances the Egyptians are willing to offer, to build a case to initiate the deportation procedure and to take our chance in the courts. Blair himself was even blunter. On one of the letters, he scribbled a curt note: Get them back.38
The track record of diplomatic assurances is dire, as two notable examples make clear.
Ahmed Agiza and Mohammed al-Zari were sent back from Sweden to Egypt in 2001. Maher Arar was sent from the United States to Syria in 2002. In both cases assurances were received, and in both cases the men were tortured.
In December 2001 Ahmed Agiza, an asylum seeker in Sweden, was bundled onto a CIA-leased plane, without access to a lawyer, and flown from Stockholm to Cairo, together with another man, Mohammed al-Zari. It is now generally accepted that both men were tortured in custody upon their return, including with elect ric shocks.39 The Swedish government insisted it had obeyed its obligations under the UN Convention against Torture, because it had received assurances that the two men would not be tortured, and there were no substantial grounds for believing that they would be subjected to torture.40
No hindsight is needed to realize that there were, on the contrary, substantial grounds. The same information available to the UK for its deliberations in the Youssef case was widely and publicly available to the Swedish authorities in 2001. In May 2005, the UN Committee against Torture confirmed that commonsense conclusion, and decided that Sweden had violated the prohibition on transferring people to risk of torture by expelling Agiza.41 The committee noted that the assurances secured from Egyptian officials did not suffice to protect against this manifest risk. This, the committee said, should have been a natural conclusion despite the bilateral agreement between the two states and a post-return monitoring scheme allegedly aimed at guaranteeing that Agiza would not be ill-treated on return. At the time of writing, Mohammad al-Zaris case was under consideration by the UN Human Rights Committee.
Maher Arar, a Canadian-Syrian dual national, was arrested in transit at JFK airport in New York, en route home to Canada, in 2002. From there, he was delivered via Jordan to Syria, where he was severely tortured. Syrias record of torture is described in the most recent U.S. State Department human rights report:
As Vincent Cannistraro, former chief of operations for the CIA's Counterterro rism Center remarked: You would have to be deaf, dumb and blind to believe that the Syrians were not going to use torture, even if they were making claims to the contrary.43 Nonetheless, the U.S. administration claimed to believe Syrian promises that Arar would not be tortured. John Ashcroft, the U.S. attorney-general, said appropriate assurances were received before Arar was handed over.44
Despite strong evidence that the assurances were not respected, the U.S. government officially welcomed statements by the Syrian government that Mr. Arar was not tortured.45 The independent fact-finder appointed by the Arar Commission in Canada found, by contrast, that Arars account of his torture was entirely credible. Stephen Toope wrote,
The British way
In this dubious climateworthless promises, followed by predictable tortureBritain has forged ahead with its determination to find ways of (to quote the prime minister) getting them back, come what may.
The UK government agreed diplomatic assurances contained in memoranda of understanding with Jordan, Libya and Lebanonall countries with a known pattern of torturein August, October and December 2005 respectively. Britain is eager to agree assurances with Algeria, and remains in discussion with Egypt and other count ries. In the hope of persuading British courts that terrorism suspects returned under the agreements will be protected against torture, the memos purport to improve on the previous government promises by creating a formal mechanism for post-return monitoring and a blanket agreement covering all returns.
In May 2006, the Special Immigration Appeals Commission heard the first case on returns under the agreements, involving Omar Othman, also known as Abu Qatada, a terrorism suspect whom the UK government wishes to deport to Jordan. At this writing, the SIAC had yet to issue its decision on the case.
Despite the new name for the memoranda of understanding, the efforts to systematize promises of humane treatment, and the incorporation of monitoring mechanisms, the agreements suffer from the well-established flaws that affect diplomatic assurances.
Those who have looked most closely and dispassionately at the way these assurances would work have been skeptical about the governments plans. The UK parliamentary Joint Committee on Human Rights published an assessment of the UK governments compliance with the Convention against Torture in May 2006. After considering oral and written evidence from a wide range of actors, including Human Rights Watch, the Committee concluded:
Louise Arbour, United Nations high commissioner for human rights, has condemned what she calls the dubious practice of seeking diplomatic assurances. In her words:
Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, is unequivocal in his opposition to the practice of seeking assurances against torture:
Manfred Nowak, UN special rapporteur on torture, has also condemned the purported value of diplomatic assurances, and expressed a fear that the plan of the United Kingdom to request diplomatic assurances for the purpose of expelling persons in spite of a risk of torture reflects a tendency in Europe to circumvent the international obligation not to deport anybody if there is a serious risk that he or she might be subjected to torture.50
The response of the then UK home secretary to the UNs most senior expert on torture was telling. Charles Clarke declared, in response to Nowaks criticisms, The human rights of those people who were blown up on the Tube in London on July 7 are, to be quite frank, more important than the human rights of the people who committed those acts . I wish the UN would look at human rights in the round rather than simply focusing all the time on the terrorist.51
In reality, Nowak and others who criticize the diplomatic assurances have been eager to see human rights in the round. They acknowledge the obligation of states to protect their inhabitants against terrorism. They recognize that a number of human rightssuch as freedom of expression and assemblypermit government restriction to protect the public.52 But they emphasize that some human rights obligationslike the prohibition of tortureare so fundamental that they can never be set to one side.
The UK government, by contrast, has addressed the problem from a narrow perspective, where human rights are forced into second place. Clarkes comments ignore the governments own stated philosophy about the dangers inherent in condoning torture. The government seems determined not to learn the lessons that it claims to preach.
Assurances are sometimes used in the context of, for example, sending detainees to a country with the death penalty, with a condition attached that the death penalty shall on this occasion not be used. Such assurances are both transparent and legally binding; breach of the commitment can easily be verified.
In the case of diplomatic assurances on torture, none of these conditions applies. The countries with which the UK is discussing or has agreed diplomatic assurances have already signed up to the Convention against Torturewhich they flout. In effect, they are being asked to say: On this occasion, with this detainee, we will refrain from committing crimes which we secretly commit, despite legally binding commitments, on a regular basis. The UK insists that verification will be at the heart of these assurances, through the creation of a post-return monitoring mechanism in the form of an independent organization that will ensure that detainees are treated humanely. Comparisons are sometimes made with inspections by the International Committee of the Red Cross (ICRC). The comparison is misleading.
The ICRC meets many detainees during its prison visits. This means that complaints of mistreatment cannot easily be traced to individual prisoners, who might then suffer retaliation. By contrast, the UK proposals create a cruel dilemma for detainees who have been torturedto speak out, or not to speak out, in the knowledge that if they complain about their mistreatment they may be punished still more. The UK, at the same time, has little interest in discovering that a given country is in breach of the assurances. Rather, the contrary: Any such finding would be embarrassing to the UK, and amount to an admission that the UK had violated its obligations under international law.
As Louise Arbour has pointed out:
The government seems reluctant to engage with its critics on the substance. Instead, ministers try to portray those who express concerns about the worthlessness of the diplomatic assurances as being at the heart of the problem. Singling out human rights NGOs such as Human Rights Watch and Amnesty International, Foreign Office minister Kim Howells complained that those who express scepticism about the value of diplomatic assurances from countries with a track record of torture are condescending and display a real leftover from a colonial attitude.54
Human Rights Watch will be delighted if the pattern of abuse can be shown to have changed. Nothing is immutable, andas many countries around the world have demonstrated in recent decadesthe possibilities of improvement are enormous. Such belief in the possibilities of positive change lies at the heart of the work of Human Rights Watch. There is no reason to believe, however, that any country that continues to lie to the world about its international legal commitment not to torture will suddenly choose to tell the truth in connection with a non-binding bilateral agreement.
Then Foreign Secretary Jack Straw acknowledged in December 2005 the difficulty in persuading governments to admit torture:
Despite the mounting criticism, the UK government insists that diplomatic assurances will allow it safely to deport terrorism suspects to places where they face the risk of torture. But in the event that the courts rightly reject those arguments, the government has developed a complementary strategy that seeks to alter the very nature of the torture ban itself.
Trying to Rew rite the Rules on Deportation to Torture
The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victims conduct.
The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases.
In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.
That jurisprudence says you cant deport people where there is a serious risk of particular things happening to them - death, torture for example
Were going to ask the European Court of Human Rights to look at that again.
The case of Ramzy v. Netherlands, now before the European Court of Human Rights, illustrates the determination of the British government to loosen the ban on torture, thus reversing decades of progress.
In a landmark 1996 judgment, the European Court of Human Rights reaffirmed the absolute prohibition on sending people back to the risk of torture, in a case known as Chahal v. UK. The court ruled that the return to India of Karamjit Singh Chahal, a Sikh activist suspected of involvement in terrorism, would violate the UKs obligations under the European Convention on Human Rights, despite assurances that Chahal would not suffer mistreatment. The court ruled, The violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem Against this background, the Court is not persuaded that the above assurances would provide Mr. Chahal with an adequate guarantee of safety.58
The court made clear in its judgment that [t]he prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration [emphasis added].59 Similarly, the UN Committee against Torture has emphasized that [t]he nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the [Torture] Convention.60
The Chahal decision reflects the absolute prohibition under the UN Convention against Torture. The ban on sending people back to the risk of torture is absolute. There is, after all, no practical difference between permitting torture, on the one hand, and allowing people to be sent back to be tortured, on the other.
But the UK government is no longer prepared to accept the judgment of the court or Britains obligations under the torture convention. Its view is that the risk of torture to an individual should be balanced against the alleged threat that the person poses to national security. The former home secretary, Charles Clarke, made clear that the risk of torture was just one factor to be considered, when considering whether somebody could be deported to the risk of torture:
The current home secretary, John Reid, went further, describing the Chahal decision as outrageously imbalanced.62Reid argued that the judges in the European Court of Human Rights who decided the case just dont get it.
The UK government believes that the terrorist threat requires the Chahal judgment to be overturned. It is seeking to do so through the case of Ramzy v. Netherlands. Mohammed Ramzy, an Algerian suspected of involvement in terrorism, is challenging deportation from the Netherlands on the grounds that he would be at risk of torture if returned to Algeria. The case is a relatively straightforward dispute about risk upon return.
But the UK has seized upon the case as an opportunity to overrule Chahal, and rewrite European human rights law to introduce a balancing test between torture and national security. So keen is the UK government on overturning Chahal that it persuaded four other governments to join its intervention in the Ramzy case.63 It placed the matter on the agenda of a European Union meeting of justice and home affairs ministers when it held the Presidency of the EU.64
The letter that the UK government sent to the court requesting permission to intervene describes the prohibition on returns to torture expressed in Chahal as creating real difficulty that prevents states from expelling foreign nationals on their territories who are judged to be a threat to national security. It goes on to state, The Government of the United Kingdom would wish to suggest a number of alternative legal routes by which this difficulty could more appropriately be dealt with. This will involve examining where and how the balance between the rights of citizens . and the rights of suspected terrorists should fairly be struck.65 In this context, the key right which the government is content to set aside is the right not to be tortured.
This new yes, but attitude to the torture ban may be seen as part of what UN High Commissioner for Human Rights Louise Arbour has called the new normal.66 The new British policy appears to argue that torture remains unacceptable and evilbut less unacceptable and evil than it was, because of the terrorist threat.
In effect, the British government is arguing that the ban on torture is an expression of our most important valuesexcept where the implications are inconvenient. The insidiousness of that argument needs to be confronted. It is for this reason that a number of human rights organizations, including Human Rights Watch, have also intervened in Ramzy, to highlight the fundamental importance of the ban on returns to risk of torture to the torture prohibition as a whole.67
At the time of writing, the European Court has yet to set a date to hear the case. But as the Joint Committee on Human Rights has pointed out, even if the UK government were to succeed in its intervention, the ban on returns to torture would remain absolute under international law, including the UN Convention against Torture, and returns to risk of torture by the UK would violate international law.68
Complicity in U.S. Abduction and Torture: British Refusal to Ask Questions
As the questions multiply, there is such a thing as willful ignorance and it seems we are close to that point It is not enough to protest, as government spokesmen have, that we do not support torture. We must demonstrate that we do not by actions as well as words.
Former Foreign Office minister Chris Mullin69
Its a question of what degree of complicity it might involve by the territorial government, if it allows or ignores indications to the effect that there are other countries using its airports for the transfer of persons against their will.
Martin Scheinin, UN rapporteur on human rights and counterterrorism70
I have no reason to believe that suspected terrorists have been rendered through UK territory or airspace during the Bush Administration. None of the information published recently has demonstrated otherwise
Jack Straw, then foreign secretary, writing to the Joint Human Rights Committee71
The U.S. government policy of extraordinary renditionin effect, state-sponsored abduction and delivering people to be interrogated and tortured in third countrieshas become controversial worldwide in the past two years. Two examples illustrate the well-documented pattern.
An Italian judge has issued warrants for the arrest of twenty-five presumed CIA agents wanted in connection with the abduction of Hassan Osama Nasr (also known as Abu Omar), a radical Egyptian cleric, in Milan in 2003. An arrest warrant has also been issued against a U.S. commander at Aviano Air Base in northern Italy for his role in assisting the transfer of Abu Omar first to Ramstein Air Base in Germany and then on to Egypt. Abu Omar was under investigation by Italian police, with a view to possible prosecution, at the time of his abduction.
Khaled el Masri, a German citizen of Lebanese origin, was picked up in Macedonia in 2004. After a brief period of detention he was taken to Afghanistan and held in a secret U.S. detention facility in that country. He was later released without charge. El Masri is suing the CIA for wrongful imprisonment.
Planes leased by the CIA have been used to transport such detainees around the world, with itineraries that include Guantanamo, Afghanistan, Jordan, Morocco and Uzbekistan; many of the itineraries include stop-offs in the UK. On some occasions, the United States acknowledged taking the disappeared persons into custody.
Until September 2006when President George W. Bush finally admitted the existence of secret CIA detention facilities used to detain so-called high-value terrorism suspects, and indicated that 14 such suspects would be transferred to military custody and subsequently prosecutedthe U.S. had repeatedly refused to release information about where detainees were being held, in violation of the ban on incommunicado detention. Norin defiance of the ban on prolonged arbitrary detentionhad it sought to bring charges against those in custody.72
A number of other ghost detainees remained unaccounted for, and it remains unclear whether the 14 suspects transferred will be prosecuted in accordance with international fair trial standards.
The victims of these abductions were rendered to countries with a track record of torture. Robert Scheuer, formerly of the CIA, explains how the system evolved: When the CIA came back and said to the policymaker, where do you want to take them, the answer was thats your job.73
President Bush was asked why people were transferred out of U.S. custody to countries where torture is common. The Presidents response was less than convincing:
The President was then asked specifically about returns to Uzbekistan, a country with a notorious record on torture: As commander in chief, what is it that Uzbekistan can do in interrogating an individual that the United States cant? His response was: We seek assurances that nobody will be tortured.
Others spelled things out more clearly. One U.S. diplomat was quoted as saying: It allows us to get information from terrorists in a way we cant do on U.S. soil.75A former CIA agent, Robert Baer, explained, The ultimate destinations of these flights are places that, you know, are involved in torture.76 In Baers words, If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear - never to see them again - you send them to Egypt.77
Such returns are in flagrant breach of international law, including the UN Convention against Torture. In addition, there have been credible allegations that U.S. officials themselves have carried out abuses in secret interrogation centres that have become known as black sites.78
Jack Straw, then foreign secretary, put his name to an EU letter written in December 2005, while the UK held the Presidency of the European Union, asking Washington to answer questions about the handling of detainees in U.S. custody. But the British government has shown little eagerness to press the issue.
As Chris Mullin, a former Foreign Office minister, has pointed out: If the [UK] governments policy is against rendition, then we must make that clear. The franchising out of torture is wholly unacceptable.79 UN officials have been equally clear about the extent of the problem. Martin Scheinin, UN rapporteur on human rights and counterterrorism, warned of the danger that the UK government would be complicit [i]f it allows or ignores indications to the effect that there are other countries using its airports for the transfer of persons against their will.80The British government, meanwhile, has seemed determined to content itself with reassurance from Washington that everything that the United States government does is legal, despite a body of evidence to the contrary. British ministers have provided formulaic replies. The all-party Foreign Affairs Committee noted that government ministers failed to answer the committees questions with the transparency and accountability required on so serious an issue.81
Jack Straw told the Joint Human Rights Committee that he had no reason to believe that suspected terrorists may have been rendered through UK territory, and that none of the information published recently has demonstrated otherwise. But the committee noted the British governments conspicuous reluctance to press home this point: In regard to extraordinary renditions, as elsewhere, compliance with the Convention against Torture and other human rights standards requires more than passive non-cooperation in torture; it requires active investigative and law enforcement action to prevent torture or inhuman and degrading treatment.82
This determination not to speak out, nor publicly to press Washington with difficult questions, made it easier for the U.S. to continue this abusive practice. International pressure, together with decisions by the U.S. Supreme Court, helped prompt the White Houses September 2006 admission. But Britain has repeatedly avoided opportunities to exert such pressure, and even moved to prevent criticism by others of U.S. secret detention facilities, where torture is known to have been carried out. Geoff Hoon, the Europe minister, intervened at a meeting of European Union foreign ministers in September 2006 to ensure that the EU ministerial conclusions did not include criticism of the United States in connection with the secret detention facilities.83
My interrogator asked me Why are you so angry at America? It is your Government, Britain, the MI5, who called the CIA and told them that you and Bisher were in The Gambia and to come and get you. Britain gave everything to us. Britain sold you out to the CIA.
I never thought the British Government would allow me to be slashed with a razor blade for a full year. I never thought they would let me be hauled to the Dark Prison in Kabul for further abuse before my trip to Guantánamo.
The British government is not only complicit by its reluctance to speak out about renditions, in some cases it is implicated in them.
In November 2002 Bisher al-Rawi and Jamil el-Banna, both British permanent residents, were arrested in Gambia and interrogated incommunicado by Gambian security agents and then by U.S. operatives. After being questioned by U.S. agents about their alleged ties to al-Qaeda, the men were secretly transferred sometime in January 2003, first to Afghanistan and then to Guantanamo, where they remain in detention. The men were not allowed to consult a lawyer prior to transfer. Nor did they have an opportunity to challenge any evidence against them.
In the course of legal proceedings in the High Court of England and Wales in 2006, challenging the governments refusal to seek release of the men from Guantanamo, it was revealed that the UK security services had kept the two men under close surveillance in Britain during the run-up to their departure for Gambia, including a visit to el-Bannas home about ten days before his travels when they told him they knew about his trip. The UK authorities passed informationincluding flight and arrival details and the mens associations in the UKto the Gambian authorities and to those of another (undisclosed) country. According to the judgment of the High Court:
The UK government denies any complicity on the part of the Foreign Office or the Home Office in the detention of al-Rawi and el-Banna. The government does not mention possible complicity by UK security and intelligence agencies. According to a Council of Europe report on secret detentions and unlawful transfers involving European governments issued in June 2006, however:
The case of Binyam Mohamed al-Habashi, an asylum seeker who lived in the UK since 1994, also raises the disturbing question of the UKs role in providing information that may have assisted in a rendition. Binyam Mohamed al-Habashi apparently left the UK in 2001 in an attempt to control a drug addiction. He was arrested in Pakistan in April 2002 and then forcibly transferred from country to country, in his case three times, without any access to a court. He alleges that he was severely tortured and ill-treated in each country, Pakistan, Morocco, and in a dark prison in Afghanistan, and then flown to Guantanamo, where he is detained as of this writing. Information sharing between the UK and the various governments involved, including the U.S., has been a feature of the case. In the words of the Council of Europe report:
Whitewashing U.S. Government Abuses
The U.S. has since conducted three substantial enquiries into allegations of abuse in Iraq and has investigated and punished those responsible.
We still havent had an independent investigation or inquiry into Abu Ghraib, or what led to Abu Ghraib, or where was it occurring before Abu Ghraib.
Attempts by the United States to undermine the international prohibition against torture are well documented in recent years. In 2002, memos from the U.S. Justice Department explicitly sought to define torture so narrowly as to define it almost out of existence.90 In 2005, Senator John McCain fought hard, against the opposition of the White House, to close a loophole that would have left the CIA exempt from the torture ban.
The UN Committee against Torture issued a highly critical report in May 2006, calling on the United States to close all secret prisons, hold accountable senior military and civilian officials who authorized, acquiesced or consented to acts of torture committed by their subordinates, and end the practice of transferring detainees to countries with known torture records.91 The committee rejected U.S. claims that the Convention against Torture did not apply to U.S. personnel acting outside of the United States or during wartime.
Senior military lawyers in the United States understand the dangerous implications of the new U.S. permissiveness on torture. Thus, Alberto Mora, former general counsel of the U.S. Navy, commented, Getting information became the overriding objective. But there was a failure to look more broadly at the ramifications When you put together the pieces, its all so sad. To preserve flexibility, they were willing to throw away our values.92
More recently, in pushing a military commissions law through Congress, the Administration sought to redefine common article 3 of the Geneva Conventions, which prohibits torture and cruel treatment. The administration's goal was to permit the use of alternative interrogation methods that violate international law -- methods that the CIA had been using against detainees in secret prisons. As President Bushs former Secretary of State, Colin Powell, argued, in opposing the administration's effort: The world is beginning to doubt the moral basis of our fight against terrorism. To redefine Common Article 3 would add to those doubts.93
The views of the UK carry real weight in Washington. British Prime Minister Tony Blair perhaps has more influence in the White House than any other world leader. If criticisms from Blair were publicly expressed, that would have impact on U.S. public opinion, and thus help put pressure on the White House to change its policies.
But until very recently it was virtually impossible to find serious criticism in public from the British government of U.S. counterterrorism policies and practice. In the law lords ruling of December 2005, which rejected the use of torture evidence, Lord Hope noted,
Such strong but carefully chosen words were never heard from British ministers for a full three years. Instead, Tony Blair repeatedly used euphemisms like anomaly to describe Guantanamo. Only in spring 2006, by which time even the U.S. had begun to suggest that Guantanamo might be closed, did Britain suddenly find Guantanamo abhorrent. In June 2006 Lord Falconer, the lord chancellor, argued, I think that Guantanamo Bay is a recruiting agent for those who would attack all our values. He told the BBC television program Question Time,
The British government has never explained why it took more than three years to acknowledge this self-evident truth. To this day, the prime minister has never used such unequivocal language, which might be heard clearly in Washington.
In other contexts, too, the British government has been determined to play down abuses by the U.S. government. In criticizing the shameful abuses at Abu Ghraib, the 2005 Foreign Office Human Rights Report claims, The U.S. has since conducted three substantial enquiries into allegations of abuse in Iraq and has investigated and punished those responsible. In reality, the inquiries into the events at Abu Ghraib were constructed in such a way as to ensure that high-level officials would not be implicated. None of the various commissions constituted under the Department of Defense had either the institutional independence or the authority to investigate responsibility for policies devised at the highest levels of government.
On the broader question of U.S. torture policy, we see the same story of British determination not to criticize. A confidential memo from the Foreign Office to Downing Street, published by the New Statesman, lays bare the official determination not to criticise Washingtons dangerous stance:
Rather than advising a trusted ally that its policies on torture and inhumane treatment are wrong, the British government prefers to rely on legal abstraction to divert attention from the true issues. The memo itself thus reinforces the complicity.
26Court Of Appeal Judgment - Statement From The Home Secretary, UK Home Office press release, August 11, 2004, http://press.homeoffice.gov.uk/press-releases/Court_Of_Appeal_Judgment_-_State?version=1 (accessed June 16, 2006).
27 The panel unanimously overturned the Appeal Court ruling, see U.K.: Highest Court Rules Out Use of Torture Evidence, Human Rights Watch news release, December 8, 2005, http://hrw.org/english/docs/2005/12/08/uk12171.htm
28A and others v. Secretary of State for the Home Department  EWCA Civ 1123.
29 Article 15 of the Convention against Torture states: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked in any proceedings, except against a person accused of torture as evidence that the statement was made.
30 A and others v. Secretary of State for the Home Department  UKHL 71, para. 52 http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand.pdf (accessed June 16, 2006).
31 Charles Clarke, I welcome the ban on evidence gained through torture, The Guardian, December 13, 2005.
32 A and others, Case for the Secretary of State for the Home Department (undated). On file with Human Rights Watch.
34 Statement by UN High Commissioner for Human Rights Louise Arbour to the Council of Europes Group of Experts on Human Rights and the Fight Against Terrorism, March 29-31, 2006.
35 Convention against Torture, Article 3.
36See also the judgments of the European Court of Human Rights in: Soering v. United Kingdom, Judgment of July 7, 1989, (1989) 11 EHRR 439; Cruz Varas v. Sweden, Judgment of March 20, 1991, (1992) 14 EHRR 1; Vilvarajah v. United Kingdom, Judgment of October 30, 1991, (1993) 14 EHRR 248; Ahmed v. Austria, Judgment of December 17, 1996, (1997) 24 EHRR 278; D v. United Kingdom, Judgment of May 2, 1997, (1997) 24 EHRR 423; and HLR v. France, Judgment of April 29, 1997, (1998) 26 EHRR 29.
37 Youssef v. Home Office  EWHC 1884 (QB).
38 Ibid., para. 37.
39See, for example, UN Committee against Torture, Decision: Agiza v. Sweden, CAT/C/34/D/233/2003, May 20, 2005, http://www1.umn.edu/humanrts/cat/decisions/233-2003.html (accessed July 5, 2006); and Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report: Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, June 12, 2006 http://assembly.coe.int/Documents/WorkingDocs/doc06/edoc10957.pdf(accessed June 27, 2006).
41 UN Committee against Torture, Decision: Agiza v. Sweden, May 20, 2005.
42 U.S. State Department, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices - 2005: Syria, March 8, 2006, http://www.state.gov/g/drl/rls/hrrpt/2005/61699.htm (accessed July 5, 2006).
43Shannon McCaffrey, Canadian Sent to Syrian Prison Disputes U.S. Claims against Torture, Knight-Ridder, August 1, 2004.
44 Letter from Terry A. Breese, director, Office of Canadian Affairs, U.S. Department of State, to Stephen Rickard, Human Rights Executive Directors Working Group, in response to human rights groups concerns about the reliability of assurances from the Syrian government, November 26, 2003. Copy on file with Human Rights Watch.
45 Congressional Record, Case of Maher Arar, pp. S781-S785, February 10, 2004. http://www.fas.org/irp/congress/2004_cr/s021004.html (accessed May 13, 2006).
46 Commission of Inquiry into the Acts of Canadian Officials in relation to Maher Arar, Report of Professor Stephen J. Toope, Fact Finder, October 14, 2005, http://www.ararcommission.ca/eng/ToopeReport_final.pdf (accessed May 13, 2006).
47 House of Lords, House of Commons, Joint Committee on Human Rights - The UN Convention against Torture (UNCAT), Nineteenth Report of Session 2005-06, http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/185/18511.htm#a31 (accessed June 16, 2006), para. 131.
48 Statement by UN High Commissioner for Human Rights Louise Arbour, to the Council of Europes Group of Experts on Human Rights and the Fight Against Terrorism, March 2006.
49 Council of Europe Commissioner on Human Rights, Viewpoint: Torture can never, ever be accepted, June 27, 2006, http://www.coe.int/T/Commissioner/Viewpoints/Default_en.asp (accessed July 5, 2006).
50 United Kingdom must not deport people to countries with risk of torture UN rights expert, UN News Centre, August 23, 2005, http://www.un.org/apps/news/story.asp?NewsID=15513&Cr=UK&Cr1= (accessed August 4, 2006).
51 Ewen MacAskill, Julian Glover and Vikram Dodd, Expulsions illegal, UN tells Clarke, The Guardian, August 25, 2005, http://politics.guardian.co.uk/terrorism/story/0,,1555931,00.html (accessed August 4, 2006).
52 For example, the secretary-general of the Council of Europe has noted, The [European] Convention balances the rights and freedoms of individuals against the interest of the larger community. It allows for a robust, effective and fair response to all threats to society, including terrorism. Statement by Terry Davis, secretary-general of the Council of Europe, on the occasion of the Assembly debate on alleged secret detentions in Council of Europe member states, June 27, 2006.
53 Statement by UN High Commissioner for Human Rights Louise Arbour on Human Rights Day, New York, December 7, 2005.
54Anne Penketh, Howells in row over 'no-torture' memos, The Independent, February 6, 2006.
55 House of Commons, Corrected Transcript of Oral Evidence before the Foreign Affairs Committee, Q27-28, December 13, 2005, http://www.publications.parliament.uk/pa/cm200506/cmselect/cmfaff/c768-i/c76802.htm (accessed March 23, 2006).
56 Chahal v. The United Kingdom, Application No 22414/93, November 15, 1996, (1997) 23 EHRR 399, para. 79.
57 UK seeks human rights law review, BBC News Online, May 20, 2006, http://news.bbc.co.uk/2/hi/uk_news/politics/5000238.stm (accessed June 16, 2006).
58 Chahal v. The United Kingdom, para. 105.
59 Ibid., para. 80.
60 UN Committee against Torture, Communication No.39/1996, UN Doc.A/52/44 (1997) para. 94.
61 Home Office Press Office, The Home Secretary Speech to the European Parliament,http://press.homeoffice.gov.uk/Speeches/10-05-sp-euro-parliament (accessed June 16, 2006).
62 Human Rights Act reform ruled out, Press Association, July 20, 2006,
63 Lithuania, Slovakia, Portugal, and Italy. Italy subsequently withdrew from the intervention.
64 European Union, Justice and Home Affairs Council, Meeting on October 12, 2005. Main results of Council: Article 3 of the European Convention on Human Rights. The Presidency briefed the Council about the UK and the Netherlands positions regarding the possibility for the European Court of Human Rights of revisiting an earlier Court decision in the 1996 Chahal case, (undated), http://www.fco.gov.uk/Files/kfile/JHA_12Oct_Results,0.pdf (accessed July 5, 2006), p. 19.
65 Letter from the UK Foreign and Commonwealth Office to the European Court of Human Rights, regarding Ramzy v. the Netherlands, September 22, 2005.
66 Address by UN High Commissioner for Human Rights Louise Arbour at the Royal Institute of International Affairs, London, February 15, 2006.
67 Human Rights Watch has intervened in the case jointly with Interights, Amnesty International, the Association for the Prevention of Torture, the International Commission of Jurists, Open Society Justice Initiative, and REDRESS.
68 Joint Committee on Human Rights, Nineteenth Report of Session 2005-06, para. 27.
69Chris Mullin, America must tell us the truth about its gulag, The Independent, December 4, 2005, http://comment.independent.co.uk/commentators/article331006.ece (accessed June 16, 2006).
70Today Programme, BBC Radio 4, January 6, 2006.
71 Joint Committee on Human Rights Session 2005-06 - Written Evidence - Letter from Rt. Hon. Jack Straw MP, Secretary of State for Foreign and Commonwealth Affairs, December 21, 2005.
72 See Human Rights Watch, The United States Disappeared: The CIAs Long-Term Ghost Detainees, October 2004, http://www.hrw.org/backgrounder/usa/us1004/us1004.pdf Reed Brody (Human Rights Watch), Ghost detainees of the U.S.: Prisoners who disappear, commentary, International Herald Tribune, October 12, 2004, http://www.iht.com/articles/2004/10/12/edbrody_ed3_.php (accessed August 4, 2006); U.S. Operated Secret Dark Prison in Kabul, Human Rights Watch news release, December 19, 2005, http://hrw.org/english/docs/2005/12/19/afghan12319.htm.
73Stephen Grey, Trade in torture, The New Nation, October 11, 2005.
74 President's Press Conference. James S. Brady Briefing Room, March 16, 2005, http://www.whitehouse.gov/news/releases/2005/03/20050316-3.html (accessed June 16, 2006).
75 Duncan Campbell, U.S. sends suspects to face torture, The Guardian, March 12, 2002.
76 File on Four, BBC Radio 4, February 8, 2005. Transcript available at http://news.bbc.co.uk/nol/shared/bsp/hi/pdfs/15_02_05_renditions.pdf (accessed July 26, 2006).
77 Stephen Grey, America's gulag, New Statesman, May 17, 2004.
78 Human Rights Watch, The United States Disappeared; U.S. Operated Secret Dark Prison in Kabul, Human Rights Watch news release.
79 Ian Cobain, Stephen Grey and Richard Norton-Taylor, MPs from all parties prepare campaign to halt CIA terror flights from Britain, The Guardian, September 13, 2005.
80Today Programme, BBC Radio 4, January 6, 2006.
81 House of Commons Foreign Affairs Committee, Sixth Report: Foreign Policy Aspects of the War against Terrorism, Para 98.
82 Joint Committee on Human Rights, Nineteenth Report Session 2005-06, para. 156.
83 Suzanne Goldenberg and Nick Watt, Bush digs in after terror law rebellion, The Guardian, http://www.guardian.co.uk/international/story/0,,1873734,00.html (accessed September 20, 2006).
84 Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, para. 171.
85 Amnesty International, Who are the Guantanamo Detainees? Case Sheet 12: Benyam Mohammed al-Habashi, AI Index: 51/152/2005, September 21, 2005, http://www.amnesty.org.ru/library/Index/ENGAMR511522005?open&of=ENG-MAR(accessed August 4, 2006).
86 R. on the application of Bisher Al Rawi and others v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department,  EWHC 972 (Admin), May 4, 2006, http://www.bailii.org/ew/cases/EWHC/Admin/2006/972.html (accessed July 5, 2006). See also discussion in Amnesty International, Partners in Crime, p. 44.
87 Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, para. 163.
88 Ibid., para. 198.
89 Today Programme, BBC Radio 4, May 31, 2006.
90 See for example Reed Brody, The Road to Abu Ghraib: Torture and Impunity in U.S. Detention, in Kenneth Roth and Minky Worden, eds., Torture: does it make us safer? Is it ever OK? A human rights perspective (London: The New Press, 2005)
91 Conclusions and Recommendations of the UN Committee against Torture, United States of America, CAT/C/USA/CO/2, http://www.ohchr.org/english/bodies/cat/docs/AdvanceVersions/CAT.C.USA.CO.2.pdf (accessed June 16, 2006).
92 Jane Mayer, The Memo, New Yorker, February 27, 2006.
93 Letter to Senator John McCain, September 13, 2006. http://graphics8.nytimes.com/packages/pdf/politics/PowellLetter.pdf (accessed October 20, 2006).
95 Question Time, BBC 1, June 14, 2006.
96 Martin Bright, Rendition: the cover up, New Statesman, January 23, 2006, http://www.newstatesman.com/pdf/rendition/rendition.pdf (accessed August 4, 2006).