Louise Christian | ukwatch.net

The shame of British complicity

Ellie Keen — Fri, 22 Aug 2008 12:32:18 +0000

The judgment given by the high court yesterday in the case of Binyam Mohamed opens up the real prospect that the international law and rule of law transgressions of the “war on terror” will unravel in British courts. Never before has so much been disclosed of the real extent of the British government’s complicity even though much of the hearing was in closed sessions using special advocates and the only judgment we have access to is the “open” one.

Binyam Mohamed is the only British resident left in Guantánamo Bay. Although all the other residents have been returned the US has refused to bring him back to the UK on the grounds that he is to be put on trial before a military commission which could impose the death penalty.

Clive Stafford Smith, Binyam’s lawyer asked the UK government to disclose information in its possession which could help prove that he had been the subject of extraordinary rendition to Pakistan and then Morocco and had been tortured at the behest of the US on the basis that this might then persuade the US convening authority in charge of the military commissions to withdraw the charges against him. The court found that such information should be disclosed but has given the foreign secretary, David Milliband, further time to consider the security implications.

The information in British possession came about because of the involvement of the British security services in Binyam’s murky story. They were involved in the questioning of Binyam in Pakistan when he was detained unlawfully incommunicado and without access to a lawyer from May to September 2002. Witness B from the security services who gave evidence in secret at the hearing and at one point refused to answer questions because of possible self-incrimination of war crimes not only worked with the US on the questioning but told Binyam that he would not help him unless he cooperated fully with the US.

In the event the help he promised did not materialise and after September 2002, when Binyam reports being rendered to Morocco, the British security services continued to “facilitate interviews by the United States authorities … when also they knew BM was still incommunicado and when they must also have appreciated that he was not in a United States facility and that the facility in which he was being detained and questioned was that of a foreign government.”

Binyam alleges that his torture in Morocco included his penis being cut with a scalpel. Although the judgment makes no finding on this it contains pointed observations about the failure of the US to respond to the torture allegations calling its position “untenable”

The judgment makes a clear finding of complicity:

By seeking to interview BM in the circumstances described and supplying information and questions for his interviews, the relationship of the United Kingdom Government to the United States authorities in relation to BM was far beyond that of a bystander or witness to the alleged wrongdoing.

It is this which now really puts the cat among the pigeons. During the war on terror both MI5 and MI6 have flown around the world giving assistance to the US by providing information and conducting interviews with detainees known to them. They are known to have questioned people detained by the US in Afghanistan, Iraq and Guantánamo Bay and are believed to have assisted in renditions such as that of Jamil el Banna and Bisher Al-Rawi from the Gambia to Afghanistan and then Guantánamo.

The full extent of British “facilitation” has not yet come out but this action could be the tip of an iceberg. Did the British allow Diego Garcia to be used as a secret prison? Does our government or security services know of other secret prisons or arrangements with foreign governments? My firm is among others in bringing claims for damages and crucially a demand for a public inquiry by ex-Guantánamo detainees against the British government and security services for British collusion in the human rights abuses they suffered.

But really we should not now have to wait for the courts to pronounce on these matters. The last time we heard the words “ethical foreign policy” was years ago in the time of the late Robin Cook but they could have reappeared in the recent article by David Miliband.

Instead of waiting for more shaming disclosures of the same kind as in this judgment the government could make a real break with the moral equivalence of the Blair government by setting up a public inquiry and devising a new code for the security services to ensure they never “facilitate” torture and abuse again. If they do not do so it is increasingly clear that the UK courts will stand up to the executive on such fundamental government wrongdoing.

Louise Christian of Christian Khan solicitors acted for some of the detainees released from Guantánamo Bay

Mad Panic

Sat, 30 Jul 2005 09:56:20 +0000

Politicians tell the public who travel on public transport to remain calm and carry on normal life. Yet the response from politicians and police to terrorist attacks in London is one of panic and hysteria. Already one innocent man has been shot dead. Armed police roam the streets, and innocent people are being arrested and searched at gunpoint. Worse still, police have produced a “shopping list” of new legislation to be rushed in, and the leaders of all three main political parties have already agreed to much of it in a cosy chat in Downing Street without any parliamentary involvement.

We have been warned that attacks would happen for a considerable period of time; as the main ally of the US in its “war on terror”, the only surprising thing is that it did not happen sooner. Of course it is frightening, but there is little acknowledgement that the kneejerk response of more laws, more police shows of strength and more attacks on civil liberties may be counterproductive. Thursday’s announcement by the IRA is a timely reminder that we have our own recent history of political panic causing miscarriages of justice resulting in an increase, not a decrease, in violence.

It appears that parliament may be recalled in September to pass yet another Terrorism Act. While in opposition, the Labour party voted against the yearly renewal of the Prevention of Terrorism Act. But in 2000, the Labour government enacted for the first time a new permanent Terrorism Act which produced a new much wider definition of terrorism. The definition included the threat of damage to property as well as a threat to life if it is designed to influence the government or intimidate the public for the purpose of advancing an ideological cause.

Significantly, the act specifically provided that the definition extended to “action outside the UK”. Subsequently in 2001, in an immediate response to September 11, another act was rushed in – the Anti Terrorism Crime and Security Act (ATCSA) – allowing foreign nationals to be detained indefinitely without trial. After the House of Lords declared this contrary to the Human Rights Act, a new Prevention of Terrorism Act 2005 was rushed through parliament in March substituting control orders for indefinite detention under which both foreign and British nationals can be severely restricted in their movements, subjected to a form of house arrest and forced to wear electronic tags. These powers expire in March 2006 unless renewed before then.

What is proposed in the fourth Terrorism Act is the creation of new offences of acts preparatory to terrorism, incitement to terrorism and giving or receiving terror training. Other measures discussed include an increase in the amount of time that terrorism suspects can be held without charge.

The proposed new offence of acts preparatory to terrorism has been strongly pushed by the police following the acquittal of defendants in the “ricin trial”. The Metropolitan Police commissioner Sir Ian Blair went so far as to suggest that there would have been convictions if the new offence had been available. This is disturbing. The defendants in that trial were acquitted because of the lack of any evidence linking them to the plot – there was no ricin. It seems as if the intention behind the new offence may be an attempt to convict people on the basis of association with others without evidence of knowledge or intention. This is likely to result in innocent people in the Muslim community fearing to report their suspicions.

Secondly, it is proposed to create a new offence of incitement to terrorism. The wording was apparently changed after parliamentary drafters objected that a proposed new offence of condoning terrorism would be impossible to define. Threats to kill and incitement to murder are already offences. What more will be outlawed? Are all those who feel a huge sense of injustice about the same causes as the terrorists (Iraq, Afghanistan, the war on terrorism, Guantánamo Bay, Abu Ghraib) to be stopped from speaking forthrightly about their anger? Because terrorism is now defined in our law as actions abroad, will those who support liberation movements in, for example, Kashmir or Chechnya be denied freedom of expression? Since, in truth, the definition of terrorism should encompass the actions of terrorist states engaged in unlawful wars, how can one justify this when our government supports the war in Iraq? People must be free to debate ideas some find obnoxious such as creating an Islamic caliphate or imposing sharia law – suppression will only add to the attraction of such ideas.

Thirdly, a new offence of giving or receiving terror training is proposed. There are no known terror training camps here so this new offence will be used to justify vastly increased surveillance of Muslims going abroad, particularly to Pakistan. Already section 7 of the ATCSA gives police the power to pull people off flights without compensation and compel them to answer questions about their destination. This has created hardship when young Muslim men who have saved up for the hajj have missed their flights.

Is this really the right way to deal with the existence of the camps which, incidentally, were set up with US finance to encourage foreign fighters to fight the Russians in Afghanistan?

A particularly worrying recent proposal by the police is to increase the time terrorism suspects can be held without charge to three months. The current limit of 14 days is already very long. The police say they need longer to examine computers seized but this should only be the case if arrests are fishing expeditions and not intelligence led.

Civil libertarians do not oppose all new laws or indeed added resources for the police. Forensic investigations by the police take too long because they are under-resourced. Liberty has long supported the admission into evidence of phone-tap material. But parliament, when it is reconvened, should scrutinise proposals that may make things worse. In her speech in Malaysia (a country where human rights have been in considerable jeopardy), Cherie Booth eulogised the role of the judges in preventing governments from acting outside the rule of law. Yet the truth is that beyond a certain point the judges will be powerless. The Human Rights Act does not give them the power to strike down legislation.

The new provisions for control orders involve only extremely limited judicial scrutiny. History shows that a UK-style judicial system with independent judges did not stop the outrages of apartheid South Africa nor does it now stop human-rights abuses in places such as Israel. Repressive, unfair laws are likely to increase the risk of terrorism as the recent bombing in Egypt, with its long history of repression of the Muslim Brotherhood, demonstrates all too clearly. We need independent-minded members of parliament who will break free of any misconceived political consensus and stop laws going through that will create injustice and risk recruiting terrorists.

Louise Christian of Christian Khan solicitors acts for Guantánamo Bay detainees.

louisec@christiankhan.co.uk