Below is a transcript of the Torture session. It is loosely edited.
Victoria Brittain: Thank you all very much for coming. Sorry they didn’t give us a bigger room. As soon as I saw the number of the room, I knew they’d made a mistake and I’m sorry for those of you who are very uncomfortable, but there we are. And I am very sorry that Dominic Grieve isn’t here, those of you who heard him this morning, it was terrific to hear him say how upset he was about Binyamin Mohamed and I wanted to ask him the question then, but the chair didn’t take my hand. I wanted to ask him – how come this was news to him, when for seven years the question of torture in Guantanamo has been written about. Moazzam’s written his book, he’s spoken in every town in England, dozens of times and somehow Dominic Grieve, we didn’t quite get his attention. I chatted to him afterwards and he said it was very unfair for me to characterise him as not having been interested, he was very interested and he was sorry he hadn’t come to any of our meetings at the House of Commons or elsewhere. I then said, well as you’re so interested, I was also a bit disappointed that you didn’t mention the other British resident who has been so badly tortured in Guantanamo and who has five British children and a British wife, Chaka Ahmed and he clapped his hand to his forehead and said ‘I’m terribly sorry’. So, he has now agreed to take up the case of Chaka Ahmed, so one thing’s been achieved today, we’ve got a conservative on our side who kind of wasn’t before.
Anyway, to go back to the other very wonderful intervention this morning of Lord Bingham, for those of you who weren’t there, I’ll just summarise one of the things he said that is so pertinent to this session. He talked about the 1947 committee led by Lord Sankey who had taken evidence from all kinds of different parts of British society to ask what World War II was about, what were we fighting for and among the things that they came up with was that secret evidence is not ever permissible. And the second thing was nobody can ever be held for more than three months without trial. Well I’m going to talk today about people who have been held in Britain for seven years without any trial and who have no prospects of any trial, and I’ll have to be quick because I know I’ve got a fierce chair here.
As I’m sure many of you may have read there was a recent report from the International Commission of Jurists, it’s a very detailed report on terrorism and counter terrorism and human rights and it highlighted three things that I think immediately concern us here and which I want to underline. The first is, cruel, inhuman and degrading treatment is illegal and unacceptable. Secondly, raw intelligence has begun to be accepted as a substitute for evidence. And the third thing, and this was much of the discussion this morning, was how the executive has accrued power alongside a weakening of the legislator. Well, I won’t detain you on that one because it was extensively dealt with this morning.
What I want to kind of underline is the final point of the ICJ report was a recommendation that there should be a complete review of counter terrorism laws and practices and in particular, I think this applies to SIAC, our Secret Immigration Court and the question of secret evidence and Edward Fitzgerald is a much greater expert on this than me, but I think that these very targeted things are something that audiences like this, who are all powerful in the sense that you all have voices and some of you are in great positions of influence and I think that these are things that we can begin to really put on the agenda of the Dominic Grieves’ of this world.
And I want to take a quick story just to show how immediate all this that I’m talking about is from this very week. On Thursday there was a hearing in SIAC in which Justice Mitting ruled against the Home Secretary Jacqui Smith. She had requested the revoking of bail of five, what she calls, terrorist suspects. Now, these are among the people I’ve talked about who have been held for seven years, never having known what they’re accused of, never having been in court. Anyway, so five of these men were in court to see their bail revoked, or the question of it. Justice Mitting by the end of a very long day, including some long sessions enclosed evidence, ruled against the Home Secretary. He laid out a timetable when he would hear these cases starting next week. And in the meantime he refused her request that they should be immediately arrested, so we all left thinking, a great day. On the way home, those who had been in court were arrested, those who hadn’t been in court were arrested in their homes. Can anything more illustrate why we’re here in this meeting?
Anyway, the following day, yesterday, Mitting sat again in the same court, but rather brilliantly he reconstituted himself. Instead of being a SIAC hearing, because there’s no appeal on SIAC, he sat as a High Court judge and he ruled against the Home Secretary’s overnight arrests in four out of the five cases. And I think if you want a kind of nutshell of the interplay between the Justice, the judiciary and the executive, that little thing, Jacqui Smith vs. Mitting really, really sums it up for me. I read a piece about it in the Guardian Comment is Free and I didn’t have time to read all the comments, but two things struck me; one was, instead of the normal torrent which I normally get on Comment is Free, the first three things all said, more or less, Home Secretary, you couldn’t make it up, how could this have been happening in our country, so I was very happy about that. But what I want to just outline very briefly, is the deportation bail conditions that those five men were on, which are very similar to control orders although every one is devised slightly differently. I don’t think that people in Britain really know that we have people who are on 20 hour a day house arrest and one of those five men is on a 24 hour a day house arrest. I’ll let that just sink in for a second.
And these lives which have everything squeezed out of them, by the rules of deportation and control orders which include wearing an electronic tag, having no visitors who haven’t been vetted by the Home Office and in one case I know, you’re only allowed one visitor at a time. If you have a visitor who happens not to speak the same language as you, you can’t have a translator. It also means that, as far as their children are concerned, they can not have Internet at home for schoolwork or any other purpose. And just to show you how cruel, inhuman, degrading and indeed petty these rules are, I want to mention one family, where there are five kids all of whom, particularly the girls are very high achieving kids. Their father is a) illiterate, b) disabled, it’s a maisonette and they have a computer upstairs, but they’re not allowed Internet on the computer in case this man should go upstairs and somehow use it to organise a terrorism plot. I just give you that as a tiny example of the cruelty of this kind of regime and I also want to say that given the fact that these regimes will never end, as far as these people know, they’ve been in and out of Belmarsh, Long Lartin, house arrest now, as I said, for seven years. The only exit open to them is to go back to the countries where they were originally tortured, so you won’t be surprised when I tell you that in these cases, there are three people who have repeatedly tried to commit suicide and there are two men who now, more or less, live in wheelchairs and a third who lives, all the time, in a mental hospital.
This is cruel, inhuman and degrading treatment British style and if you’re interested in knowing the texture of these people’s lives, I’ve written this long report which you can get through the Institute of Race Relations Website. I think they’ve actually made it free to download and that will just show you exactly, well many more examples that I’ve given. I’ve got two more minutes; I just want to say how these people are important to all of us, because they are iconic victims of the War on Terror in that they are powerless, invisible, they’re often known as Mr. U, Mr. X, Mr. Y, apart from one, Mr. Offman whose case you probably know and which Ed will also talk about later, but who has been demonised by the media with the assistance of the security services special briefings and with the extremely helpful interventions of Jacqui Smith whose interventions about how glad she is when this man loses a case and how unhappy she is when the court in Europe freezes his deportation, I think are completely inappropriate for anybody in the position of a Home Secretary.
One other kind of thing that’s going on in this area of which you may not be aware of, which is people who are on, what are called, UN sanctions, financial sanctions. This means that they have been designated, by this country, as terrorist suspects who might use their money for some nefarious purpose. They are never told what it is, but what happens is that they immediately are unable to have any money at all of their own, i.e. their wives have to take over all their financial responsibilities and if you could visit some of these families and see what a transformation in both the gender relations and in what’s happening to the children, you would be shocked and ashamed that we allow this to go on. And again, like the previous man I started out by talking about, they have no idea what it is that is being held against them or when, or if ever anyone will tell them what they have supposed to have done wrong, and I’ll stop here.
Moazzam Begg: Good afternoon everyone. It’s been an amazing week. It began, as far as I’m concerned, with the news of the release of Binyamin Mohamed who I had the pleasure of spending several days with over the past week. Precisely at that time when Binyamin was being released, there was another man coming into the United Kingdom to seek legal representation for his brother who is the only enemy combatant held in the United States of America and legal representation from Gareth Pierce. He was detained in Britain and was not allowed, but was held in a detention centre for five days before he was returned to Qatar which he is a national of. He also was a Guantanamo Bay detainee for six years and eight months. He toured with me and an American soldier here last month in a tour called Two Sides – One Story when former Guantanamo detainees and an American soldier who guarded prisoners in Guantanamo toured together around the country. So he’d already been in the United Kingdom and yet, bizarrely, he was not allowed in a second time and the reason they said to him was, and we did a House of Lords press conference when he first arrived, was that, they said, he didn’t tell people that he’d been in Guantanamo Bay. That was absolutely bizarre. So he was returned.
Now, his brother’s case, you may have heard of in the BBC recently, is the case of Ali al-Marri, the only enemy combatant held in the United States of America for seven years who has now, after seven years been charged. This convention today is called the Convention on Modern Liberty, but I want to tell you about a convention of ancient liberty called habeas corpus. Habeas corpus is this thing that is enshrined within the Magna Carta, that great institution of Britishness for which we’re told today that we need to aspire to our roots of Britishness so that we can integrate, especially us Muslims, integrate into society properly. So, it seems bizarre that on the day that I was taken, in front of my wife and children, in Pakistan, with a gun to my head, by CIA agents and Pakistani intelligence agents, that within hours, my wife, through the courts in Pakistan had issued a habeas corpus writ in Pakistan, so that tells you two things: it tells you first of all, that this great right of habeas corpus, doesn’t just include us people here in the United Kingdom or the United States of America, but reaches out to Third World countries, like Pakistan where it might not, in practical terms, work very well, but at least in terms of theory and ideology, it’s part of the legal system. It didn’t mean anything though, because I wasn’t released as a result of any habeas corpus proceedings in Pakistan, in the UK, or in Guantanamo Bay. It was all after embarrassing situations occurred, which included letting the British government know, and the British people know that British citizens were tortured by the Americans with British intelligence complicity.
I’ve spent a few days, as I said, with Binyamin Mohamed and one of the people that was hoping to see him was this man Al-Marri, the guy I was talking about. When we met him in the English countryside, that couldn’t happen. And one of the things Binyamin doesn’t like to talk about, although it’s been talked about a lot, is the torture that he had to undergo in Pakistan, in Morocco, in Guantanamo Bay, before he’d returned to the United Kingdom. He’s terribly emaciated, he’s terribly weak looking, but he’s strong of heart, and that has been the experience of myself and most of the people that I’ve seen that have passed through this great test, is that the system attempts to break them down, to remove all sense of hope. So it seems bizarre and shocking that they come out of all of this, filled not with rage or bitterness, but with a sense of bewilderment, relief and to seek justice for those who remain behind. And the only way to do that, sadly, is to illustrate what took place in your own case. They don’t want to hear from you talking about other people, they want to hear you talking about yourself and in that sense, you can’t let go. You can’t put it behind you: it has to continue. So the torture, both physical and mental continues and it continues for a lot of us and it’s going to continue for Binyamin if he wants his case brought out into the public arena which I think everybody realises and recognizes is going to cause a great deal of embarrassment for the British government.
But Binyamin Mohamed is a British resident, not a citizen and there’s been all this argument as to why should these residents, what’s this new term of residents, why should they be brought back to this country? Well, first of all, because they were given political asylum in the first place and the reason why the asylum cases have been reviewed is because they were held in detention and were not able to be present for those reviews that took place, but I am a British citizen, because there is no doubting who I am, my position. I am here to tell you, and the press, and everybody else, and have done so for the past four years, that I was held with the full complicity and the knowledge of British intelligence services, members of the British intelligence services that I had seen in the United Kingdom and from the MI5, not the MI6, which is an important distinction, because it shows that the people who were working on these issues at home, were ready to go outside and to gain benefit from the War on Terror that took place which included the torture, the cruel, inhuman and degrading treatment of British citizens. That happened in Pakistan, it happened in Bagran, it happened in Kandahar and it happened in Guantanamo Bay.
We as the British citizens and British residents of this country already, before the return of Binyamin Mohamed, had and have a case in the courts accusing the British intelligence services, including the Attorney General of complicity in our detention, false imprisonment and torture. The fact that now people are jumping on the bandwagon of Guantanamo Bay, for me is welcome, but nonetheless, I know that people were in this similar position campaigning for people held without charge or trial, finding it hard to get an ear to listen to. But people now have come along, because it’s the ‘in’ thing, it’s fashionable to talk about Guantanamo Bay and that’s why I’m telling you right now, that whilst Guantanamo’s days are numbered and everybody’s on the bandwagon, because the most powerful man on earth has said, within the first two days of his presidency, that he will close it, he didn’t talk about other things, he spoke about that, Guantanamo first, that’s how important it was seen to be.
I’m here to tell you that there is a whole process that one has to pass through before he ever gets to Guantanamo Bay and can say actually, by the time I passed through this process, I was looking forward to going to Guantanamo. So if people are patting themselves on the back, because they think Guantanamo is coming to a close, we’re here to tell you that the secret detentions process is something that you have to pass through. Extraordinary rendition has not been addressed by the American President. Military detention sites like Bagran, and Kandahar, and Abu Ghraib have not been addressed by the American President. And if we’re to believe and recognize that the increase of troops in Afghanistan is going to take place, that by definition means there will be more prisoners in the Bagran detention facility, a place where I saw two people get killed, which was featured in that very Oscar-winning documentary last year called Taxi to the Dark Side.
This is the reality of where we are, and if that is the case in Guantanamo Bay, and Bagran, and the other place, then imagine what it’s like over here, the land of habeas corpus. The person that Victoria spoke about, whose name can’t be given, the one person who was still held after his deportation order was blocked, has been held in this country in fact for nine years, not seven years. Nine years he’s being held in this country and a lot of the evidence that’s being used to hold these people has been justified by the use of secret courts.
Now, the secret courts in the UK may be a relatively new thing, other than perhaps what happened during the period of the Irish, but in Guantanamo Bay, the combatant status review tribunals was precisely that secret court which continued and justified our continued detention in Guantanamo with secret evidence without us ever being able to know what reason it is that we’re being held here without charge or trial for so many years. And if that is the case around there in different countries where we can easily point the finger and say, it isn’t so bad over there, it’s about time that we start looking over here right in our back door, right in our backyard and seeing what is it that’s happening in this great land that exported habeas corpus to the rest of the world as a civilising factor. Thank you.
Edward Fitzgerald QC: Well, I wanted to talk on the phenomenon of deportation to torture regimes and deportation with assurances, but obviously it’s all part of a wider phenomenon which Moazzam has talked about which is really the phenomenon of the doctrine that in the so-called War on Terror, the normal rules of the game, in the words of Tony Blair, have changed, that the basic rules of justice don’t apply, the Geneva Convention can be dismissed as quaint or obsolete, the European Court rulings and principles can be said to be out of touch leading to cause for amendment of the European Convention or replacement of it by something else, and it’s all part of this phenomenon which led to the degrading of international law, the degrading of human rights principles and then what we had was Bagran, we had Abu Ghraib, we had Guantanamo and the whole policy of extraordinary rendition and this notion that Tony Blair expounded in his 12 points in July 2005 where he was basically saying, the rules of the game have changed, we’re just going to tear up the obsolete old human rights principles and from now on start to deport to torture regimes, we’ll get assurances and if the judges object, if the European Court objects, we will amend the Human Rights Act and will, if necessary pull out of the Human Rights Convention.
So, what I want to say is that it’s important that we resist that. It’s still the issue, the issue of deporting terror suspects, because that’s what they are, suspects, to torture regimes which has led to the suggestion, from both sides, from the Labour Party and from Tories indeed, from David Cameron at one stage, that the Human Rights Act should be amended or repealed and that we should introduce some new Bill of Rights which balances national security on the one hand, against the rights of the terror suspect not to be tortured on the other, and the suggestion is put when ever there’s some ruling in favour of a terror suspect, and against deportation to a terror regime. Why can’t we just send the ideologues of hatred back, they represent a threat to us, who cares if they go back and they’re tortured in Syria, or Libya, or Jordan, that’s not our business. And the only answer to that is, because they are human beings, torture is absolutely wrong, we have signed up to the UN Convention against torture which commits us in article 3 not to extradite and not to deport where there is a real risk of torture and we cannot expel, we cannot extradite people who face a real risk of torture. And if I could just trace the key steps, the three, as it were, key steps that took place in that, the first is the Chahal decision, which has been much condemned by politicians. The decision of the European Courts saying, even if someone has been found to be a national security risk, you cannot deport them to a regime or a system where they face a real risk of torture. And that has been denounced and the government have tried to get around Chahal and they argued in a case called Saadi v. Italy in the European Court, that Chahal was now obsolete after 9/11, after the July bombings and one had to balance the rights not to be tortured against the duty to provide national security.
Now, the European Court rejected that and said, no, this is an absolute principle; it’s a principle that we’ve all signed up to, 154 countries have signed up to, in the UN Convention against torture, the test is, is there a real risk of torture and if there is, it doesn’t matter what you’re suspected of, it doesn’t matter what findings are made in secret tribunals or in hearsay evidence or whatever it is, you have the right to be protected against that. Now, as you know, what happened after Chahal, the first attempt to get around that was Belmarsh, which was saying, alright we can’t extradite or deport to torture regimes, but we will lock-up indefinitely, in this country, without trial, those who we would like to deport, but can’t deport. And that was the first step in this procedure of eroding the basic rule of law.
That was held by the House of Lords to be disproportionate, to be arbitrary and to be contrary to article 5 of the European Convention and the government didn’t seek, after that ruling, to bring back Belmarsh, they have brought, as Victoria said, control orders which still can include detention in your house for up to 16 hours a day, on a control order, plus effectively internal exile and incredible restrictions on who you can see, who you can talk to, what you can do. And again, all that being on the basis, very often, of evidence that you haven’t seen and you have no opportunity to challenge. But after the July bombings, one then had the replacement of Belmarsh with this new initiative, alright, we’re going to go back and look at the Chahal principle again and this time we are going to deport to torture regimes, but we’re going to deport with assurances. And the reasoning goes like this, we’re now great friends with Colonel Gadaffi, we have these Libyan suspects in this country, we will deport to Libya because Colonel Gadaffi has promised us that when they get there, these suspects, who are sworn enemies of his, will not be killed or tortured, and moreover, he set up a human rights organisation to monitor that, that organisation is run by his son and that was the reasoning that was put forward and defended by the Foreign Office that it’s legitimate to deport.
Now again, when the courts said no, there was howls of protest from the Home Office and indeed from some sections of the press and there was this talk of, well if the courts won’t let us send people back to Libya who we regard as terror suspects to torture if necessary, then we must amend the Human Rights Act. All the Human Rights Act had done was to enshrine and enforce a principle which 154 countries have signed up to, and we signed up to, under a Tory government when we committed to the Convention against Torture.
And, as you know, though the court stopped the deportation of the Libyan cases, in the case of Jordan and in the case of Algeria a different conclusion has been reached and it has been said that the assurances can be accepted and therefore people can be deported to regimes which undoubtedly practise torture. There is absolutely no doubt that Jordan practices torture and even the Foreign Office accepts that and openly gave sworn evidence to that effect. But nonetheless it said, we can accept the assurances, we can accept a body, a human rights monitoring body which had never been heard of before, but was created for that purpose, to insure that the person in return will not be tortured.
Now, I just want to say three things about this policy of relying on assurances; firstly, if you’ve got a country which practices systematic torture, you cannot rely on that country saying, well we’ll carry on torturing everybody else, but we’ll leave this person out of it. And the European Court is beginning, having failed abysmally in the case called where they accepted assurances from Uzbekistan, beginning to say there is a principle of international law that if there is systematic torture being practised, you cannot accept assurances from that country. In a recent case called Ismoilov v.Russia, they seem to recognize that.
The second thing is, it’s said, well we can monitor this, we can send in Foreign Office officials to see if the person is being tortured, but the whole nature of the exercise is clandestine and frequently you have situations where people are being told, who come in to monitor, he doesn’t want to see you today, or we have no desire to see you, that happened in a case in Egypt, where the Swedish diplomat simply failed to monitor that the no torture assurances were being kept and because it’s clandestine, and because it’s deniable, and because they’ve got control of the people in the prison, you simply can’t rely on those assurances.
And the third thing is, there’s nothing you can do about it, once the person has been tortured, you can protest, but in the end, the desirability of having good relations with a country will always be more important than any serious diplomatic sanctions if there’s non-compliance. And so, my view is that the whole enterprise started with Tony Blair’s 12 points of sending people back to torture regimes on the basis of an assurance that they won’t be tortured is completely wrong. But I’ll just say this final thing, the European Court and the article 3 of the UN Convention provides some standard, some basic protection to which one can have appeal, and the idea that is being floated that we shall do, instead of clinging to the sheet anchor of international law principle and the Human Rights Act, get rid of The Human Rights Act and replace it with this Tory suggestion of some Bill of Rights which God knows what it’s going to include, but presumably it’s going to allow for deportation to torture, because that’s why they’re recommending that it would be a good idea, that it would get around these kind of decisions. It is, I think, deeply flawed and that, problematic as the European Convention still is, it probably would permit control orders for a certain period of time, it is at least a bedrock of principle to which we’ve signed up underlined by the UN Convention and to abandon those principles and give way to the security at any cost over rights would I think be a disaster, so it really is just a plea to continue to defend those principles that we have got, to condemn in all situations that torture is wrong and to say that this isn’t something that we should acquiesce in or connive at, or facilitate by deporting people to those situations.