On Liberty (13 page)

Whatever they may have done or are accused of having done (many of those in custody are on remand awaiting trial) prisoners are some of the most vulnerable people in any society. As Winston Churchill famously said, our treatment of prisoners is one of the most important tests of our values as a society, ‘… the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and proof of a living virtue in it’.

In 2013 the coalition consulted the public on the compulsory competitive tendering of criminal defence work and the implementation of incentivized payment models that would create a conflict between the interests of a client and their lawyer. For instance, rewarding the professional for a guilty plea. There was talk of legal aid ‘factories’ to provide cut-price advice. This particular proposal was defeated in the short term. But for how long can we fight off these fundamental changes to the way law is administered in this country if we fail to grasp the importance of access to justice and true equality under the law for the vulnerable and the powerful, whether they be big business or the state itself?

As it is, the decreasing remuneration of criminal lawyers makes it more likely that in the future, as in the United States where they don’t have either an NHS or a legal aid system, the legal fate of poor people facing the gravest criminal charges and consequences will be left in the hands of idealistic but inexperienced graduates straight out of law school.

Louise Christian is one of the most celebrated legal aid
lawyers of her generation, with clients ranging from terror suspects to the families of those killed in rail and other major disasters. She left a promising early career in a leading City law firm many years ago for a life of legal public service. This is how she sees the legal state we’re in:

The effective destruction of legal aid means that in many situations, poor people can no longer get redress for government wrongdoing in the civil courts and that they face getting a criminal conviction in the criminal courts because of substandard legal representation. It cannot be right that we can no longer afford equal access to justice in the 21st century.

Quite so.

Torture cannot be justified in any set of circumstances at all
.

– Tony Blair, 7 December 2005

Well it all depends on what you mean by rendition. If it is something that is unlawful I totally disapprove of it; if it is lawful, I don’t disapprove of it
.

– Tony Blair, 22 December 2005

Let’s face it – if you really think there are only fifty shades of grey, you probably need a bigger box of crayons. I’ve already discussed some of the many necessary ethical dilemmas confronting democrats who treasure fundamental human rights, especially in the face of challenges to law, order and national security. While we cherish our privacy, liberty, free expression and association rights among so many others, few of us would suggest that they can ever be completely absolute or unqualified. So we argue for any interference with these rights to be proportionate rather than counterproductive to the threats we seek to address. We demand tight and accessible legal process protections, especially for the application of a calm and even hand to ensure equal treatment and avoid the discrimination that divides us by fostering injustice and the natural resentment that follows.

Yet if human rights are to mean anything they must have hard edges as well as smooth corners. They must be robust as well as flexible. Some absolutes do exist. The rules against torture and slavery in particular. Since 9/11 many have questioned why this should be the case. I’ve lost count of the number of times people have asked me why it is that the Human Rights Convention allows killing – for example on the battlefield or even in peace time if strictly necessary to save life – but forbids inhuman and degrading treatment and torture in all circumstances, including emergencies such as war or a terrorist attack. From the routine way in which the scenario is trotted out to justify ‘enhanced interrogation techniques’, another classic War on Terror euphemism, you would think that ticking nuclear bombs are found every other day at tube stations all over the democratic world. Nonetheless, this depressing or even shocking, oft repeated question deserves a serious answer.

Remember how the modern notion of international human rights was born. The drafters of the Universal Declaration and the European Convention on Human Rights did not just witness the barbarity of conventional armed conflict during the Second World War, but saw images and heard testimony from survivors of Nazi concentration and extermination camps and Japanese prisoner-of-war camps. It is hardly surprising, therefore, that the concepts of torture, inhumanity and degradation were foremost in their minds. If that provides a historical context for the absolute rule against torture, what is the philosophical justification, especially if you are not a pacifist and are prepared to tolerate killing as a lawful and moral action in certain extreme circumstances?

Human rights instruments take life and death extremely seriously. The right to life in Article 2 of the Convention and Human Rights Act provides for lawful killing only when ‘absolutely necessary’ to protect life, prevent a prisoner escaping or quell a riot. The test of absolute necessity is deliberately tighter than the idea of ‘proportionality’ that we use when, for example,
intruding on people’s privacy and family life. Further, the obligation against the state isn’t just a negative one as far as the lives of its people are concerned. It extends also to a positive duty to protect life and investigate suspicious deaths.

Yet the right to life is not absolute. The right not to be tortured or subjected to inhuman treatment, on the other hand, is.

I think perhaps the biggest clue lies in the word ‘inhuman’. Large sections of the British population eat meat and some even hunt or rear animals for slaughter. However, I suspect that many or even most of this group, including large numbers who probably wouldn’t remotely associate themselves with the idea of ‘animal rights’, disapprove of unnecessary cruelty, even to those animals that have been brought into the world for the sole purpose of human food consumption. Why is that? I think it is because of a fundamental understanding that torture and cruelty do something hideous, not just to the victim, but to the perpetrator and the wider society of which she is a part.

We don’t all like to talk about it, but we will all die one day. In practical terms, an absolute ‘right to life’ would require medical miracles rather than philosophical or legal development. We can hope for long, happy and fulfilled lives but still death will come. Torture and degradation need not. To take another’s life and choose the moment of their ending is quite literally to ‘play God’. It is, rightly, almost always unacceptable. However, to inflict inhuman treatment is to play a yet more terrifying role, and in so doing to force a fellow human being to endure a darkness of which we should aspire to rid the world.

The last decade proved how far from that goal we still are. It also demonstrated how near to home some of the challenges and obstacles are. The contagion of outsourcing, excusing and sugar-coating torture began in the United States with Guantanamo, rendition, ‘enhanced interrogation techniques’ (EITs) and so-called ‘black sites’ around the world, including in Eastern Europe. Debates continue to rage about the reliability of intelligence gained by such methods. I have greater stores of
moral than physical courage and an extremely low threshold for pain. The less than completely tender mercies of the natural childbirth lobby notwithstanding (‘you’re not a real woman unless you do it in the bushes with nothing but Mozart and aromatherapy oil for pain relief’), I only managed to give birth with a great deal of pharmaceutical and eventual surgical assistance. If you tortured me, I suspect that I would tell you whatever I thought you wanted to hear – whatever might make the excruciating pain cease. The other side of the argument is that the material can be reliable sometimes and could possibly therefore foil the plans of a particular terrorist group. Well, what sort of reliable is that?

David Davis puts the point starkly:

Sheikh al-Libi was an al-Qaeda emir at the al-Khaldan training camp in Afghanistan. Captured by the Pakistanis, he proved a useful source when he was interrogated by the FBI using conventional methods. When the CIA took him over, however, they sent him to Egypt to be tortured to obtain more information. Under torture he ‘confessed’ that two al-Qaeda operatives were sent to Iraq for training in use of chemical and biological weapons, exactly what the Americans wanted to hear, and no doubt what was necessary to bring his suffering to an end. This was the evidence that Colin Powell was referring to when he told the UN he had ‘proof’ of Iraqi WMD to justify the war.

It was, of course, not true. Sheikh al-Libi later recanted his confession, but not before hundreds of thousands of innocent Iraqis had died.

The Egyptians were embarrassed. Sheikh al-Libi had been sent back to Libya to be imprisoned by Gadaffi. The Egyptian head of intelligence, Omar Suleiman, visited in 2009. Before he left, al-Libi had ‘committed suicide’ in his cell. You may draw your own conclusions.

It’s like the ticking bomb tale turned on its head. The question often posed in this debate is whether you would torture
someone for information if you knew there was a bomb about to go off. Except this wasn’t an undergraduate hypothetical. It really happened.

If there is a special place in hell for the doctors who participated in torture by way of medical experiments in the darkest moments of the twentieth century, what about the lawyers who excused and legitimized torture with the thought experiments of the twenty-first? As late as January 2014, the former top CIA lawyer John Rizzo was promoting his aptly titled book
Company Man
with media appearances in which he justified torture techniques including sleep deprivation, cramped confinement, placing suspects in stress positions and waterboarding them. In an interview with Gordon Corera for BBC2’s
Newsnight
programme Rizzo, the ‘company man’, admitted that he had reinterpreted the word ‘torture’ to suit his clients and that the justification was fear of another 9/11 rather than any obvious legal reasoning. In the follow-up studio debate that I had with the eminent retired Harvard law professor Alan Dershowitz, the once-renowned liberal lawyer argued that while he did not personally approve of torture, as it happens anyway it ought to be legalized and subject to signed ‘warrants’. He made an analogy with the death penalty which, on reflection, seemed to reveal how the huge barbarism of that continuing practice in the United States can be used incrementally to justify everything from drone strikes and targeted assassinations to torture.

My own horror at the death penalty began my personal human rights journey. For this I have my father to thank. As an eleven-year-old girl watching the TV news in my parents’ North West London semi I remember being transfixed by the seemingly endless updates in the hunt for the Yorkshire Ripper. One evening, especially unnerved by the coverage, I said something about what they should do to ‘this animal’ or ‘monster’, or something like that, when he was caught.

In my dad’s first and perhaps last Atticus Finch moment, he
asked me to consider that no justice system capable of human design or operation can ever be perfect. What would it feel like, I remember him saying, to be the one wrongly convicted person in a thousand or million walking to the gallows or electric chair or lethal injection? What would it feel like when every due process appeal was exhausted and when even your own family no longer believed you – yet you went to your death knowing that you didn’t do that terrible thing for which you were about to be executed?

That evening my father’s words captured my imagination and turned my stomach and it makes the hairs on my neck stand up even today as I write. I duly reconsidered and never looked back. If I went on in adult life to become the bug-bear of so many authoritarian men, they only have one of their own number – my dear old dad – to blame.

But I suppose that if you believe in the death penalty and have it at the heart of your justice system it would seem reasonable to assassinate Osama bin Laden. He was after all the most obvious and notoriously ‘guilty’ man in the world, so putting him on trial before you execute him is surely just a bit of a circus and a dangerous one at that. This is what the War on Terror was capable of doing to lawyers. It could turn stupid ones into yes men for corner-cutting and cruelty and clever ones into the architects of increasingly byzantine processes with which to conceal or even legitimize barbarism.

By the beginning of 2009 the game was up on covering up the British government’s complicity in torture. In early February I appeared on BBC1’s
Question Time
programme with the Right Honourable Geoff Hoon MP (then Transport Secretary). Our heated exchange seemed to divide viewers along gender lines – at one point he conformed to stereotype by describing me as ‘emotional’. This was his response to my profound disgust at the attempts of his government to cover up their antics in court, even to the point of telling senior judges to keep passages of legal decisions critical of the authorities a secret. This
had come to a head in the case of Binyam Mohamed, an Ethiopian who had been resident in the United Kingdom but who, in 2002, was arrested in Pakistan and ‘rendered’ by the United States to Morocco where there was allegedly a CIA black site where he was tortured and interrogated for eighteen months.

It was proved that M15 agents had participated in Mohamed’s interrogation, despite knowing about his ill-treatment, which included extensive beatings, subjection to loud noise – sensory bombardment – for days on end, and scalpel cuts to his chest and genitals. MI5 agents also provided pictures and information from the UK for the interrogating agents to put to him, and received information gleaned from his interrogation in return. The idea was to get the suspect to confess to involvement in a dirty bomb plot against a US city. Though his torturers extracted a statement from him at the time, Mohamed subsequently retracted it and maintains his innocence of terrorism charges.

Subsequent civil proceedings against the UK government in London, initially to gain access to vital evidence of the torture, became incredibly important for a number of reasons. Firstly, they once more highlighted governments’ capacity to contract out their dirty work, whether to fellow democratic governments, as in the ‘special relationship’ with the US, who treat each other’s territories and nationals with less respect than their own, or even to less ‘developed’ allied nations, where grave human rights violations such as torture are routine and accepted. Democratic states that launder their torture are no better than the tyrannies they conspire with. And what precisely is the difference between rendering someone or deporting them to a place of torture? Only that in the case of rendition you have the express prior motive of extracting intelligence.

Even now, years after the heart of darkness that was rendition was laid bare, politicians remain hugely frustrated at their inability to deport foreign suspects to places of torture. This issue continues to be at the forefront of the human rights
debate. The case of Abu Qatada, in particular, still haunts me like a stalker ex-boyfriend. Everywhere I go, the time that it took to get the ranty cleric and former Belmarsh detainee out of the country is put to me as a classic example of ‘human rights madness’. Let’s examine our sanity, humanity and logic a little more closely. There were umpteen offences with which he might have been charged, for example, incitement and soliciting murder. Instead he was subject to various forms of lengthy detention and subsequent community restriction without trial. The prize that successive governments sought was deportation rather than prosecution. Possibly they believed it would be the easier option. Ironically, while politicians can make up and change policy in the spur of a soundbite, the machinery of practical administration can be slow and reluctant to re-evaluate strategy, even after years of failure.