The pursuit of secrecy

15 Jul 10 | News and features

As secret files reveal the UK’s role in abuse and torture, Richard Norton-Taylor addresses Labour’s legacy of secrets, spin and cover-up

“Drop it”, ministers strongly advised, as I sensed the government was not coming clean about their role in “extraordinary rendition”, the US practice of secretly transferring terror suspects to places where they were likely to be tortured.  It was the familiar attempt to smother an embarrassing tale, a practice at which New Labour and its spin doctors were particularly adept. The first indications from the Con-Lib coalition are that it intends to unearth its predecessor’s activities. William Hague, the foreign secretary, has delivered what he promised before the general election — a judge-led inquiry into allegations of complicity in torture.

What was astonishing was the lengths to which ministers and officials went to cover up their activities. As they persisted in a shameless pursuit of secrecy, they blamed journalists and conspiracy theorists, fed, they claimed, by human rights groups and misguided lawyers, for not letting go.

The determination of the Blair and Brown administrations, which in their very early days promised a new era of openness, to suppress information was more than an instinctive bureaucratic reaction by those simply enjoying power and wanting as quiet a life as possible. Ministers, and Blair in particular, adopted an extraordinarily cavalier attitude to the rule of law, and to constitutional and democratic principles.

The government was quick to use the Official Secrets Act for political reasons. In 2007, David Keogh, a Cabinet Office official, and Leo O’Connor, former researcher to a Labour MP, were convicted after an Old Bailey trial, partly heard behind closed doors, in a move that stopped the public finding out whether George Bush proposed to Blair at a meeting about Iraq in Washington in April 2004 what would have been a war crime and how Blair reacted.

The evidence the government suppressed was an official record of the Washington meeting when the situation in Iraq was deteriorating fast. The leaked memo is reported to have referred to Bush’s alleged proposal to bomb the Arabic TV channel al Jazeera and, ironically, to have revealed how far Blair went in criticising US military tactics when its forces were assaulting the Iraqi town of Falluja.

Before the trial, Margaret Beckett, then foreign secretary, made it clear embarrassment was the real issue at stake. She signed a Public Interest Immunity (PII) certificate claiming the disclosure of the document would have a “serious negative impact” on UK-US diplomatic relations. “The ultimate consequence”, she claimed, “would be a substantial risk of harm to national security.” Such a claim, implying that good relations with Washington were more important than upholding the rule of law or standards of morality, was echoed precisely by David Miliband, Beckett’s successor, in the Binyam Mohamed case.

Strikingly, and to the government’s chagrin, it was not Parliament but the courts, and the country’s most senior judges, who have proved the most effective enemies of secrecy. For 18 months, David Miliband, the foreign secretary, egged on by MI5 and MI6, dismissed increasingly angry warnings by the high court about the implications, notably for the rule of law, about the government’s determined attempt to suppress evidence of British complicity in the torture of terror suspects.

Bit by bit, more and more evidence emerged of MI5’s involvement in the unlawful treatment of Binyam Mohamed. A British resident of Ethiopian descent, he was arrested in Karachi in 2002 with a false passport. Held incognito, he was interrogated by an MI5 officer, known only as Witness B. He was subsequently secretly rendered to Morocco, where he was brutally tortured, then rendered to the notorious “black” prison at Bagram in Afghanistan before being flown to Guantanamo Bay. MI5 officers willingly provided information and photographs to the CIA about what they knew of Mohamed’s past even though the US authorities refused to tell MI5 where the prisoner was being held.

In six separate damning judgments, Lord Justice Thomas and Mr Justice Lloyd Jones observed that the relationship of the UK to the US in connection with Mohamed “was far beyond that of a bystander or witness to the alleged wrongdoing”. The government and its lawyers relied on the tired old argument, to which English courts have traditionally deferred, whereby claims by ministers that secrecy is needed on the grounds of national security cannot be challenged.

The long-held assumption has been that when the executive flies the flag of “national security”, the courts, Parliament, the media, must immediately genuflect. In the Binyam Mohamed case, it was the courts – and not Parliament – which broke that taboo. “The suppression of reports of wrong- doing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law”, Thomas and Lloyd Jones insisted. “Championing the rule of law, not subordinating it, is the cornerstone of democracy.”

In particular, in a judgment last October, they ordered the release of a seven-paragraph summary of a CIA report showing what MI5 knew of Mohamed’s “cruel, inhuman and degrading treatment“. They dismissed Miliband’s claims that disclosing CIA evidence of unlawful treatment would harm national security and threaten the UK’s vital intelligence-sharing arrangements with the US.

“Of itself”, said the judges, “the treatment to which Mr Mohamed was subjected could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or ‘a summary of classified intelligence’.” What the seven paragraphs revealed was “admissions of what officials of the US did to BM [Mohamed] during his detention in Pakistan”.

They added: “It was impossible to believe that President Obama would take action against the United Kingdom” if the summary of CIA material was disclosed. Publication was “necessary to uphold the rule of law and democratic accountability”, the judges continued. “In our view”, they said, “as a court in the United Kingdom, a vital public interest requires, for reasons of 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.”

Would Obama really “curtail the supply of information to the United States’ oldest ally when what was put into the public domain was not intelligence?”, they asked rhetorically. There was no “rational basis”, they said, for claims made by Miliband and Hillary Clinton, the US secretary of state, that disclosure would affect the supply of US intelligence to the UK and put British lives at risk. Miliband’s case was irrational because it was “logically incoherent”.

Moreover, it transpired that the British government and their lawyers were trying to suppress information that had already been released by the Obama administration, notably his decision to publish CIA memos on interrogation techniques. One document Miliband eventually agreed could be disclosed referred to a memo from Jay Bybee, former US assistant attorney general, to John Rizzo, acting CIA general counsel, which, the judges said, “made clear that the techniques described were those employed against Mr Zubaydah, alleged to be a high-ranking member of al Qaida”. Another document which the British government insisted had to remain secret consisted of a “verbatim quote” from a memo made public in the US seven months previously.

When, to the government’s dismay, the appeal court, consisting of three of the country’s top judges, also dismissed Miliband’s argument in a devastating ruling in February, it did so partly because of what had been revealed already in the US courts – namely, evidence about Mohamed’s torture an American judge accepted as true. If any doubts remained, the Lord Chief Justice, Lord Judge, the Master of the Rolls, Lord Neuberger, and the President of the Queen’s Bench division of the high court, Sir Anthony May, made it clear that what Miliband wanted to suppress was not only involvement in unlawful activities but attempts to lie about it.

A passage written by Neuberger (and toned down at the request of Miliband’s counsel, Jonathan Sumption QC) refers to MI5’s denial that it “knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government”. Neuberger continued: “Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials.”

Some security officials “appear to have dubious records when it comes to human rights and coercive techniques”, Neuberger added. There was reason to “distrust” the advice and information of the security services when it came to Mohamed’s mistreatment. This in turn, Neuberger added, raised the whole question of whether statements in public interest immunity (PII) certificates – gagging requests to the court – signed by ministers on the basis of advice from the security and intelligence agencies could be relied on as being accurate. “The Security Services have an interest in the suppression of such information”, noted the appeal court referring to knowledge of torture and inhuman treatment.

In a key passage, the judges stated: “In principle, a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice when it concerned UK knowledge of unlawful interrogation techniques used by US officials”. They also rejected Miliband’s claim that the “control principle” applied, whereby only the provider of intelligence could release it, not the receiver of it, whatever the circumstances. The principle could not be applied, they said, if it concealed that “those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture”.

While the government and its security and intelligence agencies were publicly insisting that it abhorred torture and the abuse of prisoners, privately they were complicit in it. The Mohamed case showed that this was not on the grounds that in the fight against international terrorism they had to cooperate with countries and agencies which did not share the same “standards” as Britain – an explanation they now deploy. No, Miliband defended his actions and those of his officials not out of any conviction, however misguided, or even for pragmatic reasons, but ultimately because he did not want to upset the US government. This was the case even though Washington had severely embarrassed the British government, to put it no higher than this, by not informing it of the use of Diego Garcia, the US air base on the British Indian Ocean Territory, for secret CIA rendition flights, or the whereabouts and torture of terror suspects, including Binyam Mohamed and – as Baroness Manningham-Buller, the former head of MI5 recently complained – Khalid Sheikh Mohammed, the alleged mastermind of the 11 September 2001 attacks on the US. Questions remain about what ministers, including Tony Blair, privately knew of the activities of American security and intelligence officers, who in the Bush administration sanctioned them, and what his own attitude was.

That the government secretly tried to suppress what it knew about CIA “torture flights” was made clear as early as 2005 with the leak of a note from Irfan Siddiq, a member of then Foreign Secretary Jack Straw’s private office, to Grace Cassy in Tony Blair’s office, drawn up in response to a Downing Street request for advice “on substance and handling” of the controversy over CIA rendition flights and allegations of Britain’s connivance in them. “We should try to avoid getting drawn on detail”, Siddiq warned, “and try to move the debate on, in as front foot a way as we can, underlining all the time the strong anti-terrorist rationale for close cooperation with the US, within our legal obligations.”

After referring to a statement by Condoleezza Rice, Bush’s secretary of state, that, “where appropriate”, the US would seek assurances before transporting suspects to countries where they risked being tortured, the Foreign Office noted: “We would not want to cast doubt on the principle of such government-to-government assurances, not least given our own attempts to secure these from countries to which we wish to deport their nationals suspected of involvement in terrorism: Algeria etc.” In April, Amnesty International singled out the UK among European countries striking “no torture” deals with foreign countries as a means to deport people it labels a threat to national security.

Less than two years after he came to power in 1997, Blair repeatedly intervened in an attempt to deport asylum seekers to Egypt, despite being told that they might be tortured and sentenced to death. Court documents showed how he tried to get Egypt to give assurances that the men would cooperate with countries and agencies which did not share the same “standards” as Britain – an explanation they now deploy.

Warned that there was “ample evidence from a range of sources of serious human rights abuses in Egypt” and that there was “little scope for pushing deportations any further”, he replied: “This is crazy. Why can’t we press on?” Told that no assurances were forthcoming, Blair wrote: “This is a bit much. Why do we need all these things?” All this may help to make The Ghost Writer, directed by Roman Polanski and based on Robert Harris’s political thriller about the memoirs of a prime minister threatened with war crime charges, particularly piquant.

Guidance given to MI5, MI6 and military intelligence officers interrogating detainees abroad remains secret at the time this article was going to press. In March last year, Gordon Brown responded to growing evidence of British collusion in the torture and abuse of detainees abroad by promising to give the parliamentary Intelligence and Security Committee (the ISC) new guidelines on interrogation. Eight months later, the ISC were given them – in a form, noted officials, “in which they could be published”.

A year later, the ISC sent Downing Street its criticisms of the guidelines. The prime minister’s office, which vets ISC reports and decides how and when they can be published, suppressed them until after the general election. Stung by criticism of its ineffectiveness by both the courts and the media, MPs on the committee directed their fire at their critics rather than the security and intelligence agencies they are supposed to hold to account.

One of the tools successive governments have relied on to suppress information in court cases is the PII (public interest immunity) certificates. They are signed by ministers and are meant to alert judges to the damage to national security, or threat to individuals or the administration of justice, if sensitive information is released. That is their proper function. As independent lawyers argued in the Binyam Mohamed case, PII is not supposed to be invoked “to prevent disclosure of evidence of serious criminal misconduct by officials of the United Kingdom”. If PII certificates are upheld by the judge, then the information or evidence referred to or contained in them cannot be used by either the prosecution or the defence in a subsequent trial.

Special procedures are now in place governing the proceedings of the Special Immigration Appeals Commission (SIAC) set up to hear challengesto Home Office decisions to deport or exclude someone from Britain. Special Advocates, suitably vetted, are appointed on behalf of the defendants to have sight of information gathered by the intelligence agencies. But they cannot pass this on to lawyers representing the defendants, let alone the defendants themselves.

The Brown government wanted to extend this way of suppressing information for the first time to civil cases. Pressed by MI5 and MI6, ministers argued it should be introduced so that seven British residents incarcerated in Guantanamo Bay, or their lawyers, will not have access to what the security and intelligence agencies describe as “secret government information” – a reference to what British officials knew about the prisoners’ ill-treatment. The seven – Binyam Mohamed, Bisher al- Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes, Moazzam Begg and Martin Mubanga – are suing MI5 and MI6, and the home and foreign secretaries, for unlawful acts, negligence and conspiracy. In a further devastating judgment, the appeal court said this attempt to suppress evidence in a civil trial undermined deep- seated principles of common law and open justice. One of those principles, ruled Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan was that “trials should be conducted in public, and the judgements should be given in public”. The judges ruled: “In our view the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim such as a claim for damages for tort or breach of statutory duty.” They added: “Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that is applicable only in exceptional circumstances nonetheless often becomes common practice.”

The determination to suppress information on the grounds of national security has been extended to military operations in Iraq. Senior judges last year accused the Ministry of Defence of “lamentable” conduct over attempts to suppress information on the interrogation of Iraqi detainees held by British troops in Camp Abu Naji, an army base in Amara, north of Basra, after a fierce battle in 2004. The high court described the MoD’s handling of the case, including false claims made in PII certificates, as “truly alarming”. Perhaps we have witnessed the nadir in the pursuit of official secrecy in the name of security. It was a theme pursued with special vigour by Tony Blair after all.

During their post-election negotiations, the Liberal Democrats and David Cameron’s Conservatives cited civil liberties as an area they could agree on. They had both called for an independent judicial inquiry into complicity in the abuse and torture of terror suspects. Now David Cameron has announced a judicial inquiry, though its scope and how much of it will be held in public or behind closed doors remains unclear. Given the mounting evidence, it is difficult to see how the new government could have continued as if nothing happened.

This article appears in Radio Redux, the new issue of Index on Censorship, out now. It has been updated for the web to reflect developments in the time since the magazine went to print.

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