“Do justice”: Why torture must be exposed
by Andrew Goddard
St Augustine famously wrote, in City of God Book 4 Chapter 4,
Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on. If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues peoples, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of impunity. Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, “What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor.
This passage sprang to mind as I read the most important High Court judgment issued last week by Lord Justice Thomas and Mr Justice Lloyd Jones in the case of Binyam Mohamed (BM) vs The Secretary of State for Foreign and Commonwealth Affairs. The case – unsurprisingly given its significance and the fact that several key sections are “redacted” (ie omitted from the published open judgment at the request of the government and security services) – has received much media attention. However, the full-scale of what it reveals about the British state’s past actions and their current attempts to prevent these being brought into the public realm is perhaps still really to sink in.
What is new in the judgment?
This judgment is the fifth open judgment in the case (there have also been closed ie secret judgments, full details and links to open judgments are here). The key development is that the judges have decided that information they previously “redacted” at the request of the Foreign Secretary should now be made public. That information – seven key paragraphs – is still unpublished in order to allow the government to appeal against this ruling. Nevertheless, their basic outline is already clear and both the contents and the pattern of arguments used to prevent their publication should be a cause of major concern to anyone who cares for justice and the protection of human dignity and believes that truth-telling, accountability and upholding the rule of law are essential to good government.
What is already clear?
It is clear that the claimant (BM) was interrogated by the US authorities when held in Pakistan in April/May 2002. It is clear that those authorities gave reports to the British Security Services about his treatment. It is clear that following receipt of those reports a Security Service officer interviewed BM and provided information to the US authorities.
What does the government seek to prevent being made public?
The judges have written seven paragraphs which summarise the account of the treatment of BM which the recent judgment has decided should be made public. Significantly, “there is nothing in the redacted paragraphs that would identify any agent, facility, secret means of intelligence gathering, or any other matter relating to intelligence. There would therefore be no disclosure of any matter relating to intelligence” (para 74(i), this and all subsequent para references are to the latest judgment, linked above).
Why did the Court originally agree to redaction and what has changed?
The judges ruled in February that the seven paragraphs which had been redacted from the first judgment should remain redacted but agreed in May to review this decision. This was because it was claimed by lawyers for BM and the press that the court “had been misled or there had been a misunderstanding as to the evidence of the position of the United States Government in relation to action that they might take if we had decided to make public the redacted paragraphs of our first judgment” (para 3). Crucially, the decision to withhold publication in February was because of a “threat” from the Bush government that “if the information contained in the 42 documents or the 7 redacted paragraphs was made public there would be a re-evaluation of the existing intelligence information sharing arrangements between the two Governments, thereby giving rise to the real risk of serious harm to national security” (para 12).
What has most obviously changed in recent months are the developments in the US government’s approach to interrogation and openness about interrogation techniques since the Bush administration was replaced by the Obama administration. On 16th April, Obama’s “commitment to transparency and the rule of law in relation to the treatment of detainees suspected of terrorist activity was made clear by a statement....and the release of a number of memoranda issued by the United States Department of Justice’s Office of Legal Counsel dealing with the treatment of Al-Qaida detainees” (para 38 (iii)). The High Court ruling notes that “the memoranda that were released set out details of the treatment inflicted on detainees by the CIA and a minute legal analysis as to whether those techniques would constitute an infringement against the prohibition on torture”. Significantly, this part of their report – para 38 (iv) - then reads “REMAINDER OF SUB-PARAGRAPH REDACTED”. Thisclearly suggests that the material in the seven paragraphs relates to techniques now confessed by the Obama administration to have been used on suspected terrorists they detained (as also implied in para 69(iii) which refers to this redacted paragraph). The openness demonstrated in the release of this information was a major shift in US policy and “statements made immediately after the release of these memoranda by very senior officials of the Bush Administration explained why they wished to keep the matters secret” (para 40). As a result of these changes, it was submitted to the court that “in the light of making public of these memoranda, it was quite impossible to contend that the Obama Administration would ever have contemplated reconsidering the intelligence sharing relationships with the United Kingdom if we made the redacted paragraphs public” (para 39).
How did the UK government respond to these changes in US policy?
The government claimed in March that, despite the change from Bush to Obama, nothing relevant to the Feb judgment had changed and, in a hearing in April, the Foreign Secretary asked for an adjournment which the court refused (paras 42-44). A week later the Foreign Secretary asked the judges to defer the handing down of their judgment. It was, however, pointed out by those asking for reconsideration that the UK government was still failing to ask the US the key question – “whether the threat which was so clearly enunciated on behalf of the Bush Administration....is being maintained by the Obama Administration” (para 46). The court therefore refused the government’s bid to buy more time.
During May the government issued another Public Interest Immunity (PII) Certificate (a means, which some will recall from the infamous Matrix Churchill trial, of pleading national security required secrecy) (paras 52, 66). It also sought to prevent making public which bodies in the UK and the US were communicating on this matter of the new Administration’s likely response to disclosure. The court ordered public identification of the bodies on 3rd June but it wasn’t until 15th July the Foreign Secretary complied and stated the information was sent by the CIA to the Secret Intelligence Service (SIS). This was after the judges made clear they would not reconsider the decision because “the Foreign Secretary had advanced no reason for keeping the identities confidential other than that the communication was confidential and that the United States had not consented to its disclosure. These reasons provided no basis whatsoever on which we could conclude that the disclosure of the information could cause any risk of serious harm to the national security or international relations of the United Kingdom” (para 58).
During this period it also became clear to the court that the Intelligence Services of our country, by searching their documentary electronic archive system, had “brought to light a number of very significant documents which made parts of our first open judgment inaccurate” (para 60). The significance of these is clear from the facts that (1) “Further PII Certificates with significant closed evidence were provided by the Home Secretary and Foreign Secretary in relation to the documents” (para 60), (2) the judges had to take “the quite exceptional step of correcting parts of our first judgment which were, in the light of the documents, incorrect. Extensive revisions were also required to our closed judgment” (para 61) and (3) if the documents had been available at the original hearing in July 2008 the judges are clear that the SIS witness who interrogated BM would have been cross-examined further and “it is inevitable that we would have made further findings some of which we would have put into the open judgment”. The late revelation of the documents means, however, that the judges have done no more than correct inaccuracies in their earlier judgments. The judges note that explanations were given for the failure to provide these documents in July 2008 and that mistakes are understandable but comment “we have not enquired into the accuracy of the explanations given to us in relation to the highly significant documents, as it was inappropriate for us to do so” (para 63).
Why is the UK government still resisting publication of these 7 paragraphs and are they right to do so?
There are two issues at stake here which this judgment insists must be distinguished (paras 15-16), one of principle and one of consequences. There is the question of whether their publication breaks a wider principle relating to release of intelligence information and if so whether such a breach is justifiable. There is also the question of what the US will do if they are released and the effect US actions will have on the UK’s national security.
(1) The claimed principle
First, there is “the principle of control over intelligence”. This is a general principle or convention (not a legal requirement, para 71) that “intelligence information received by one State from another will not be released into the public domain or otherwise used without the consent of the state supplying it” (para 15(i)). This is an important and justifiable principle of confidentiality which is perfectly acceptable in a more general ethic of confidentiality than that restricted to state secrets and consonant with, indeed arguably implicit it, the obligations that are undertaken in receiving secret information. It is clear that the US government continues to refuse to give consent in relation to the seven paragraphs (which, although they are the judges’ own summary, clearly release information into the public domain supplied by the US government, even though the judges are clear that “the 7 paragraphs do not contain any material of an intelligence nature” (para 68; cf para 74(i) quoted above).
The key questions then are whether release would amount to infringing this principle and if it did whether such infringement was justified.
It is here vital to recognise that the principle is not an exceptionless rule or absolute principle (para 72). Although “the receiving State will normally be expected to resist the making of a court order for disclosure” (and the most charitable reading possible of the government’s action is that it is simply “going through the motions” to fulfil this expectation), governments understand courts may order disclosure. This means that “court ordered disclosure would not ordinarily have adverse consequences to the national security of the United Kingdom” (para 15(i)). Indeed, the judges note that as early as their original first open judgment they included “information provided to the United Kingdom authorities by the United States authorities” but “no objection was made to the publication of such information” (para 72(iii)). Again, this acceptance of exceptions within the general principle should be uncontroversial (in terms of the limits of disclosure in relation to wrongdoing and the demands of justice there may be interesting comparisons to be made with, for example, the limits of clerical confidentiality and the sanctity of the confessional in relation to serious crimes).
The judges, after weighing the different representations, are clear that “viewed objectively, a decision by a court in the UK to put the redacted paragraphs into the public domain in the circumstances of this case would not infringe the principle of control over intelligence” (para 73, italics added). The exception built into the principle applies in this case they argue because court ordered disclosure is necessary and justifiable (para 73(i)) and is exceptional. It is their explanation of these two key claims that highlights the significance of this case in six central points:
- BM’s case is that “the UK Government had facilitated or become mixed up in wrongdoing of the US, alleged to amount to cruel, inhuman or degrading treatment or torture”.
- BM argued that the UK Government knew of the US wrongdoing “and in the light of that wrongdoing facilitated further wrongdoing by interviewing BM when it knew of the treatment that had been accorded to BM and thereafter providing information to the US authorities about BM”.
- The court therefore needed “to explain what the UK Government actually knew about what was alleged to be cruel, inhuman or degrading treatment or torture...”
- It was necessary to refer to information’s source ie “information supplied to the SyS by the US authorities as to what officials of the US Government admitted actually doing to BM....”
- “The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law. Championing the rule of law, not subordinating it, is the cornerstone of democracy” (emphasis added).
- “The proceedings in this case are, we believe, unprecedented....The information [supplied by the US] related to matters of great public importance....” (emphasis added).
The judges, however, go further. Even if publication did infringe the principle (the view they reject for the reasons above), such an infringement would not be “highly significant” (as the Foreign Secretary claims).
Their explanation why they believe infringement would not be “highly significant” is itself highly significant. They give 3 reasons, the second of which again appears simply as “SUB-PARAGRAPH REDACTED” ie their reason relies on information about the US actions which were reported to the UK government and appear in the key 7 paragraphs they still cannot publish. The third reason then reads: “The fact of any such breach would now receive publicity in the context of the current debate over action by the British Security Services carried out with knowledge of the use of unlawful interrogation techniques, would not make any infringement “highly significant”” (para 74(iii)). This opening reference back to the missing paragraph suggests the redacted paragraph likely refers to the treatment of which the UK government was informed being a potential or actual breach of international law. This theory is supported by para 76 where the judges note that since their previous judgment “the debate over the use of interrogation techniques and the position of the executive branch of the UK Government and its Security Services in relation to intelligence gained through the use of unlawful interrogation techniques has become more intense. The Attorney General of the US has decided to refer the use of certain interrogation techniques by the CIA to a special prosecutor”.
The court is therefore clear, and here it is simply reiterating its earlier fourth judgment: “in the circumstances, the balance of the public interest would necessitate making the paragraphs public, even if this would infringe the principle of control” (para 77, italics added). Despite continued pressure and protestations from the government, the judges have stuck to their guns, and were indubitably right to do so.
Although they reached this conclusion in their last judgment they then refused to publish the seven paragraphs they now say should be published.
This is because of the second issue at stake – whether disclosure “would cause serious harm to the national security or international relations of the UK” (para 78).
(2) The alleged consequences
As the judges note, “it was the existence of evidence of the threat to the UK made clear by the Bush Administration that led us to conclude we should defer to the views of the Foreign Secretary and maintain the redaction of the paragraphs” (para 78). That basis for continued secrecy - the threat that “the US authorities would respond by limiting their security and intelligence co-operation in the event that details of their unlawful conduct were to be made public” (BM’s solicitor, quoted para 19) - is one of the strongest signs of the truth of Augustine’s words quoted at the start. It also reveals the rather dark underside to the “Special Relationship”. The court giving decisive weight to what (despite the Foreign Secretary’s protestations cf. paras 12-14) the judges still refer to as a “threat” points to the triumph of bullying power over truth-telling and is hard to square with the claims quoted above concerning “championing the rule of law, not subordinating it” unless “national security” is an idol whose demands for such sacrifices we simply accept.
Sadly the judges do not abandon this flawed viewpoint which led to their fourth judgment maintaining secrecy but they do have the courage to ask whether the situation is still as they understood it to be when they agreed to “defer to the views of the Foreign Secretary” (para 78).
The Foreign Secretary not only still upholds that principle that we must bow to threats of retaliation by the US that might damage our national security, he seeks to argue that those threats remain in place and that his views on this matter should simply be accepted by the judges. (This latter claim is vividly described in para 70 – “It was vigorously submitted on behalf of the Foreign Secretary that there was evidence for his view, that he had plainly acted in good faith and there was therefore no basis for a court to differ from conclusions on matters on which he was the expert” (para 70, italics added)).
The judges – in great detail we need not go into – painstakingly show that the US Administration is no longer clearly stating that disclosure would result in certain consequences but simply that certain consequences could
happen if the court made the 7 paragraphs public. This shift is of course perfectly plausible given that “The Obama Administration had made public on 16 April 2009 the CIA memoranda dealing with interrogation techniques” and “President Obama had made clear that he had prohibited such techniques as they undermined the moral authority of the US and did not make it safer” (para 69(iii), summarising case put to judges). As the judges themselves conclude, “in the light of the disclosure of the US Dept of Justice memoranda...it is now impossible to contend that the details of the interrogation methods are themselves matters of intelligence” (para 103). In short, under Bush, disclosure would have made public the US’s admission of certain techniques in a particular case, revealing that they were in some sense authorised and it is understandable that this might lead to threats of dire consequences. Now, however, all that is being revealed is that techniques the US has now admitted it authorised were used in this particular case (and, crucially, that the UK government knew this at the time it also participated in BM’s interrogation).
The Foreign Secretary, however, is insistent that there has been no such change and that “the Foreign Secretary and his advisers, including the SIS to whom the letter was addressed, were better placed in interpreting the letter than other persons and the court. The Foreign Secretary’s views, based on such advice, was that “could” should be read as meaning “would”...” (para 79(ii), emphasis original). Thankfully, the judges are clear that “we cannot accept the view that the Foreign Secretary or his advisers are better placed than other persons or indeed ourselves to interpret the CIA letter”. They tellingly conclude (after explaining how the letter was written for the court by people “well used to drafting documents to be provided to courts which operate on the same common law principles as our own”) – “Both letters are written in ordinary English. They do not require expert interpolation to be placed between the drafters and the court” (para 79(iii)).
In critiquing the Foreign Secretary’s view, the judges again have had to redact some key sub-paragraphs. These make clear that the contentious seven paragraphs simply refer to “what officials of the United States did to BM during his detention in Pakistan” (para 79(vii)) and “not intelligence” (para 81) but “the objective facts” (para 94 referring back to the now redacted para 81). They are clear that “it cannot be suggested that information as to how officials of the US Government admitted treating BM during his interrogation is information that can in any democratic society governed by the rule of law be characterised as “secret” or as “intelligence”” (para 93(ii)).
The judges thus conclude that while “we accept...that there must be some small risk that intelligence sharing would be reviewed or affected if we were to disclose the redacted paragraphs, we have been led to the conclusion that, on proper analysis, the evidence simply does not sustain the Foreign Secretary’s opinion that there is a serious risk” (para 95, italics added).
As a result, “We cannot accept looking at the matter objectively on all the evidence...and as a matter of reality, that there is a real risk that the United States would reassess its intelligence relationship or reduce its intelligence sharing if we made the 7 paragraphs public” (para 104).
Indeed, in another crucial, climactic statement the judges clearly state:
In our view, as a court in the United Kingdom, a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom (para 105).
In those words we perhaps discover what is really at stake and why the government is so desperate to avoid these seven paragraphs reaching the public. They will provide “the most important evidence relating to the involvement of the British security services in wrongdoing” (para 105, emphasis added).
The exact nature of that evidence is still unclear. What is in little doubt is that our country was informed that techniques now confessed to and banned by the new US administration were being used, that it then carried out its own interrogation of the individual who had been subjected to these techniques and shared the results of that interrogation with the US authorities who still detained him and whom they knew were using these techniques. No wonder government ministers and departments are trying every trick in the book – appeals to national security, requests for adjournments and delays, dire warnings about consequences, claims that courts cannot interpret letters written for their benefit but must trust the government’s interpretation, possibly “losing” crucial evidence - in order to prevent any more details reaching the public domain.
As Christians in the UK these events present major challenges about the need to speak the truth to power and call it to account, challenging its abuse of power. At the heart of the Christian gospel, in the story of Christ’s passion, we see Christ shunted between Jewish and Roman authorities and subject to interrogation and torture. This is a divine revelation and unveiling of how human political power – especially when it believes it itself is under threat from dangerous forces – can work destructively. Whether or not Binyam Mohamed is guilty of involvement in terrorist networks or, like Christ, innocent of the charges made against him is ultimately irrelevant to the judgment that has to be made, in the light of the gospel, on the actions of the US and UK authorities which are slowly being brought into the light through this and other cases.
Many Christians in the US have bravely spoken up and spoken out against their government’s involvement in abuse and torture. As part of the powerful testimony of people from many faiths against the evil of torture (such as leading theologian George Hunsinger) there has been the significant formation of Evangelicals for Human Rights and their important Evangelical Declaration Against Torture. It was undoubtedly in part because of such witness that we have had signs of hope from the new Obama Administration as it has acted to overturn and investigate the actions of the Bush Administration.
The sad fact is that it is becoming increasingly clear that our own British government was implicated in those actions. Furthermore, rather than following the example now being set by President Obama and admitting this and reversing direction, our government seems determined to seek to prevent the evidence of this complicity coming fully to light through the due process of law and the courts of the land. The judgment of the High Court last week is a sign of hope that wise and independent judges will prevent them from succeeding but the determination of the principalities and powers to overturn this judgment must not be underestimated.
If Augustine was right and justice is essential if kingdoms are to be distinguished from robbers (which we may perhaps translate today to say that justice is also what truly distinguishes true governments from terrorists) then Christians in the UK are now clearly called to follow the example of many Christians in the US. By our prayers, statements and actions, we need to work to ensure that justice is done. Any involvement in or condoning of torture is collaboration with evil and must be condemned as such. Truth must be told by governments to those on whose behalf they govern and suppressing reports of wrongdoing by public officials is, as the judges rightly declared, “inimical to the rule of law” and cannot be justified.
The Revd Dr Andrew Goddard is Tutor in Christian Ethics at Trinity College, Bristol, editor of the theological journal Anvil and on the Leadership Team of Fulcrum.