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Undermining the Torture Ban

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.

Torture Evidence in Legal Proceedings:

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.
—David Blunkett, then home secretary, commenting in 2004 on a court ruling favorable to the Government²⁶

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.
—Lord Bingham of Cornhill, Britain’s most senior law lord, in a unanimous law lords judgement that overturned the 2004 ruling²⁷

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 country’s 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 government’s] 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 against—in effect, trumped by—the needs of security.

The appeal court ruling of 2004 was not allowed to stand. Britain’s highest court, the House of Lords judicial committee (commonly known as the law lords), unanimously overturned the judgment in December 2005. Seven of Britain’s 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,

The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention. ³⁰

As quoted above, Lord Bingham said he was “dismayed” at the British government’s 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 Clarke’s claim as chutzpah. It is difficult to disagree with that analysis, suggesting certain brazenness on the government’s 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 secretary’s attempt to put a brave face on the defeat, the government’s 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 Britain’s 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.

Sending People back to the Risk of 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.
—Tony Blair, August 2005³³

I strongly share the view that diplomatic assurances do not work as they do not provide adequate protection against torture and ill-treatment...
—Louise Arbour, UN high commissioner for human rights³⁴  

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:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.³⁵

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 torture—an explicit ban under the UN Convention—derives 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 prohibitions—most 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:

There are a number of factors which suggest that assurances [from Cairo] would do little or nothing to diminish the Article 3 risk. The main problem is that the Egyptian authorities’ record in the treatment of political opponents is, by any standards not good… In particular as you will see, abuse and torture are widespread despite the prohibition by the constitution of infliction of physical harm upon those arrested or detained. My first question therefore is whether in the face of this evidence, the Home Secretary might reasonably conclude that assurances from the Egyptians could be sufficiently authoritative and credible to diminish the Article 3 risk sufficiently to make removal to Egypt a realistic option.³⁷

Tony Blair was not impressed. The prime minister’s 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-Zari’s 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. Syria’s record of torture is described in the most recent U.S. State Department human rights report: 

Former prisoners, detainees, and reputable local human rights groups, reported that torture methods included electrical shocks; pulling out fingernails; burning genitalia; forcing objects into the rectum; beating, sometimes while the victim was suspended from the ceiling; alternately dousing victims with freezing water and beating them in extremely cold rooms; hyperextending the spine; bending the detainees into the frame of a wheel and whipping exposed body parts; and using a backward-bending chair to asphyxiate the victim or fracture the victim’s spine.⁴²

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 Arar’s account of his torture was entirely credible. Stephen Toope wrote,

The interrogation techniques used on Mr. Arar, especially in the first three days but also sporadically in the first two weeks of his detention amounted to torture. The use of the black cable in particular, and the generalized beatings he endured, could only have been ‘intentional’. They were meant to inflict severe pain and suffering. The pain was clearly physical. But in addition, the techniques of humiliation and the creation of intense fear were forms of psychological torture. This is particularly true of the strategy of blindfolding Mr. Arar and making him wait for the next interrogation session in a corridor or room where he could hear the screams of other victims.⁴⁶

The British way

In this dubious climate—worthless promises, followed by predictable torture—Britain 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 Lebanon—all countries with a known pattern of torture—in 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 government’s plans. The UK parliamentary Joint Committee on Human Rights published an assessment of the UK government’s 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:

… the Government’s policy of reliance on diplomatic assurances against torture could well undermine well-established international obligations not to deport anybody if there is a serious risk of torture or ill-treatment in the receiving country. We further consider that, if relied on in practice, diplomatic assurances such as those to be agreed under the Memoranda of Understanding with Jordan, Libya and Lebanon present a substantial risk of individuals actually being tortured, leaving the U.K. in breach of its obligations under Article 3 UNCAT [UN Convention against Torture], as well as Article 3 ECHR [European Convention on Human Rights].⁴⁷

Louise Arbour, United Nations high commissioner for human rights, has condemned what she calls the “dubious practice” of seeking diplomatic assurances. In her words:

[D]iplomatic assurances do not work as they do not provide adequate protection against torture and ill-treatment, nor do they, by any means, nullify the obligation of non-refoulement… [I]t is understood that diplomatic assurances would be sought only after an assessment has been made that there is a risk of torture in the receiving State. If there is no risk of torture in a particular case, they are unnecessary and redundant. It should be clear that diplomatic assurances cannot replace a State’s obligation of non-refoulement in these circumstances, either in fact or in law.  While some have suggested the establishment of post-return monitoring mechanisms as a means of removing the risk of torture and ill-treatment, we know through the experience of international monitoring bodies and experts that this is unlikely to be an effective means for prevention.⁴⁸

Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, is unequivocal in his opposition to the practice of seeking assurances against torture:

“Diplomatic assurances”, whereby receiving states promise not to torture specific individuals if returned are definitely not the answer to the dilemma of extradition or deportation to a country where torture has been practiced. Such pledges are not credible and have also turned out to be ineffective in well-documented cases… In short, the principle of non-refoulement should not be undermined by convenient, non-binding promises of such kind.⁴⁹ 

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 UN’s most senior expert on torture was telling. Charles Clarke declared, in response to Nowak’s 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 rights—such as freedom of expression and assembly—permit government restriction to protect the public.⁵² But they emphasize that some human rights obligations—like the prohibition of torture—are 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. Clarke’s comments ignore the government’s own stated philosophy about the dangers inherent in condoning torture. The government seems determined not to learn the lessons that it claims to preach.

No safeguard against torture

“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 Torture—which 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 tortured—to 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: 

Short of very intrusive and sophisticated monitoring measures, such as around-the-clock video surveillance of the deportee, there is little oversight that could guarantee that the risk of torture will be obliterated in any particular case. While detainees as a group may denounce their torturers if interviewed privately and anonymously, a single individual is unlikely to reveal his ill treatment if he is to remain under the control of his tormentors after the departure of the ‘monitors.’⁵³

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, and—as many countries around the world have demonstrated in recent decades—the 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:

Those who commit the torture deny it to themselves as much as they deny it to other people, so to track it is very difficult, but we are alive to those countries where we think malpractice of all kinds is used and we seek to deal with it.⁵⁵

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 victim’s 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.
—European Court of Human Rights judgment, 1996 (Chahal v. UK)⁵⁶

That jurisprudence says you can’t deport people where there is a serious risk of particular things happening to them - death, torture for example … We’re going to ask the European Court of Human Rights to look at that again.
—Attorney-General Lord Goldsmith, 2006⁵⁷

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 UK’s 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 Britain’s 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:

Our strengthening of human rights needs to acknowledge a truth which we should all accept, that the right to be protected from torture and ill-treatment must be considered side by side with the right to be protected from the death and destruction caused by indiscriminate terrorism.⁶¹

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 don’t 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 evil—but 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 values—except 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

It’s 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 rendition”—in effect, state-sponsored abduction and delivering people to be interrogated and tortured in third countries—has 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 2006—when 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 prosecuted—the U.S. had repeatedly refused to release information about where detainees were being held, in violation of the ban on incommunicado detention. Nor—in defiance of the ban on prolonged arbitrary detention—had 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 – that’s your job.”⁷³

President Bush was asked why people were transferred out of U.S. custody to countries where torture is common. The President’s response was less than convincing:

[In] the post-9-11 world, the United States must make sure we protect our people and our friends from attack.… One way to do so is to arrest people and send them back to their country of origin with the promise that they won’t be tortured. That's the promise we receive. This country does not believe in torture.⁷⁴

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 can’t?”  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 can’t 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 Baer’s 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] government’s 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 committee’s 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 government’s 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 House’s 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

Complicity in Illegal Transfers

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.”
—Statement of Jamil el-Banna to his lawyer during an interview at Guantanamo⁸⁴

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.
—Binyam Mohammed al-Habashi⁸⁵

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 government’s 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-Banna’s home about ten days before his travels when they told him they knew about his trip.  The UK authorities passed information—including flight and arrival details and the men’s associations in the UK—to the Gambian authorities and to those of another (undisclosed) country. According to the judgment of the High Court:

The fact of the matter… is that information was undoubtedly given to Gambians about the proposed movements of the claimants; and the surrounding circumstances suggest that either directly or indirectly this information came into the hands of the United States authorities.⁸⁶

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:

This case… is an example of (ill-conceived) cooperation between the services of a European country (the British MI5) and the CIA in abducting persons against whom there is no evidence enabling them to be kept in prison lawfully…⁸⁷ 

The case of Binyam Mohamed al-Habashi, an asylum seeker who lived in the UK since 1994, also raises the disturbing question of the UK’s 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:

Binyam’s case is an example for the very numerous detainees – most of whose names and whereabouts we do not know – who have become trapped in the United States’ spider’s web during the course of the “war on terror.” Binyam has been subjected to two CIA renditions, a U.S. military transfer to Guantanamo Bay and several other clandestine transfers by plane and helicopter. He has been held in at least two secret detention facilities, in addition to military prisons. During his illegal interrogations, he has been confronted with allegations that could only have arisen from intelligence provided by the United Kingdom.⁸⁸

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.
—Foreign and Commonwealth Office Human Rights Report 2005

We still haven’t had an independent investigation or inquiry into Abu Ghraib, or what led to Abu Ghraib, or where was it occurring before Abu Ghraib.
—Janis Karpinski, former military police commander at Abu Ghraib, May 2006 ⁸⁹

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, it’s 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 Bush’s 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,

Torture is one of most evil practices known to man. Once torture has become acclimatised in a legal system it spreads like an infectious disease, hardening and brutalising those who have become accustomed to its use

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,

We live by the rule of law. What Guantanamo Bay is doing is placing people beyond the rule of law, which I think is intolerable and wrong. It should never have been opened and it should be closed.⁹⁵

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 Washington’s dangerous stance:

We should try to avoid getting drawn on detail… and try to move the debate on, in as front foot a way as we can, underlining all the time the strong counter-terrorist rationale for close cooperation with the US, within our legal obligations. Armed with [Secretary of State Condoleezza] Rice’s statement and the Foreign Secretary’s response, we should try to situate the debate not on whether the US practices torture (and whether the UK is complicit in it): they have made clear they do not – but on to the strong US statements in Rice’s text on their commitment to domestic and international instruments. A debate on whether the US test for torture/CID [cruel, inhuman and degrading treatment] derives from their commitments under the US Constitution rather than international law is better ground than the principle of whether they practice torture.⁹⁶

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.