Turning the clock back on torture

This week, the Law Lords outlawed the use of torture evidence. That should be good news, I suppose, but I find it disquieting.

When I went to an American law school 24 years ago, it never occurred to me that I would have to compile a checklist of torture methods that had been used on my clients by American military personnel. Why are we even having this debate?

People talk about torture as if it were a theory. It is not. It is a very ugly reality. My client Binyam Mohammed is in Guantánamo Bay. He was born in Ethiopia, but he lived in England. He appreciated the sanctuary that England gave him from his own savage government.

In 2002, Binyam was in Pakistan, where he was seized and turned over to the Americans. On July 21 of that year the Americans “rendered” him to Morocco. In plain English, that means they sent him there to be tortured. We have the flight log to prove the CIA took him there, and when he arrived the Moroccans took a razor blade to his penis.

Binyam has the physical and emotional scars to prove this, and somewhere there is an American servicewoman who took pictures. The torture went on for 18 months.

From the first prick of the blade, Binyam signed whatever they put in front of him. At one point, Binyam asked a guard. ‘What’s the point of this? I’ve got nothing I can say to them. What’s the point?’

“As far as I know, it’s just to degrade you,” a guard relied. “So when you leave here, you’ll have these scars and you’ll never forget. So you’ll always fear doing anything but what the U.S. wants.”

The point, of course, was at the tip of the blade. That is the reality of the torture debate: barbaric abuses produce ‘confessions’ that match the torturer’s fancy, followed by sufficient humiliation to teach Pavlov’s Dog to repeat his script. It was ever thus, from the Spanish Inquisition to the Salem Witches’ questionable confessions to witchcraft.

When you consider the Law Lords’ ruling this week, the voters among us should remember what role our elected British government played: they argued that torture evidence should be admissible in our courts. The Law Lords replied that torture has been illegal in England since 1640. Indeed, the last time a British government argued that torture should be legal, the Americans were still British, and we also still had the Star Chamber.

What made Tony Blair turn his moral clock back 365 years? Torture advocates make the same apocalyptic predictions today as they did then. I interviewed the leading U.S. Neocon Richard Perle a few months back, and he argued, “if a nuclear weapon had been placed somewhere and we had in our custody the man who…could tell us where it was, and it was set to go off automatically, would we be justified…to use any conceivable means to get from him the information necessary to disarm that nuclear weapon? I think the honest answer is yes.”

Who could disagree with saving millions of innocent lives? Yet there is not one incident in the past four hundred years when torture has stopped a ticking time bomb. It’s a myth used to justify a nightmare.

Indeed, the same argument was used by James I in November 1605 – we have to torture Guy Fawkes to save the nation. Fawkes was a jihadist of his day, an extremist Catholic bent on destroying the perfidious Protestants. He fought his way around Europe, before trying to blow up the Houses of Parliament, along with the royal family. It was an act of terrorism that would have pitched Britain into civil war and cost thousands of lives.

In 1605, torturing Fawkes did not stop the bomb going off – the plot had already been foiled and the conspirators captured. In 2005, torturing my clients will not prevent 9/11 – the planes killed those innocent people four years ago. It won’t stop 7/7 either, though if we keep on torturing people we may provoke some lunatic to bomb London again.

In 1605, torture did get Fawkes and his colleagues to name names – naturally, they were encouraged to finger the hated religious minority of the time. So James I burnt a few Jesuits at the stake, and it was only years after their agonizing deaths that they were exonerated. In 2005, torture will get Binyam Mohammed to finger any Muslim the torturer wants.

In an interlude between razor blades, Binyam asked his Moroccan torturers why they outsourced America’s torture.
“America’s really pissed off at what happened,” a guard replied. “And they’ve said to the World, either you’re with us or you’re against us. We Moroccans say we’re with you. So we’ll do whatever they want.”

It is quite an ally that will cut up prisoners for an American friend. Tony Blair would react in righteous indignation if he were asked to demonstrate such loyalty to President Bush. But look how far he has come: how can he demand that his lawyers argue that torture evidence should be used in our courts? How can he take away my Guantánamo clients’ passports based on undisclosed evidence tortured out of them, without even allowing them a hearing? How can he allow over 400 of the CIA rendition missions to fly through British airports, ferrying prisoners to these illegal nightmares? Indeed, Newsnight reports that interrogations have taken place on British soil.

Don’t expect me to say we should rest on our laurels after one opinion from the Law Lords. On a closer read, the opinion of the majority of the Lords is very troubling. If the government wants to introduce evidence in the secret Special Immigration Appeals Commission (SIAC), it will be admitted unless the judges are convinced, by a preponderance of the evidence, that it was exacted through torture.

If Binyam sued the US for what they did to him, he would have to prove, by a preponderance of the evidence, that he had been tortured. The Americans would indubitably deny responsibility. They would not be telling the truth, but they have a great deal more power than a lonely prisoner, licking his wounds in a prison cell. Perhaps this is why no prisoner in a decade has yet won damages in a British court for being tortured – whether the abuser be General Pinochet or the Saudi Arabians.

The Lords paid lip service to 400 years of legal tradition, but they betrayed the ultimate principle. Binyam would have it easy compared to the prisoner in SIAC. Here’s the rub: the SIAC evidence can be kept secret from the prisoner. He would not even know who the informant was, let alone be able to prove that the informant was tortured, which makes it rather hard for him to prove his case. So torture evidence will silently seep into British courts.

Binyam apologized to me when we were talking in his Guantánamo cell about the agonies he suffered. “I’m sorry I have no emotion when talking about the past, ’cause I have closed…I’m kind of dead in the head. Perhaps I can work this out later.”

It is not the victim who should apologize. Those people contemplating the use of torture evidence are operating on a different planet from the one I would like to inhabit. The rest of us, let’s agree to send torture back a few centuries, to where it belongs. 

This article also appeared in the Mail on Sunday.