Let the sun shine on torture

Government officials should be the first group covered by freedom of information laws, not the last - especially when it comes to criminal acts.

In the early days of Guantánamo Bay, the Bush Administration came up with an formidable wheeze: If a prisoner told his lawyer how he had been tortured, this had to remain classified, because it would reveal the “methods and means of his interrogation” by intelligence officers.

Like other lawyers, I would travel to Guantánamo and listen to tales of abuse from various prisoners. But we could say nothing as President Bush endlessly intoned his pious opposition to torture. Eventually we forced a change in the procedures and some – but far from all – of the evidence came out.

Sunshine is, they say, the most powerful disinfectant – and in Britain the Freedom of Information Act (FOIA) should be the ultimate sunshine law. The more we learn about materials that have been covered up, the more we see the need for open government. For example, it is rather clear now, in the wake of weeks of revelations on expenses, why MPs wanted to exempt themselves from the FOIA. It is equally clear that, if the people are to make an informed judgment at each election, government officials should be the first group covered by freedom of information laws, not the last.

There have been many casualties in the first decade of the new millennium, not all of them in Iraq and Afghanistan. One victim of the Bush-Blair era was the unanimity of twentieth-century democratic opinion against the use of torture. Another has been the truth about who is using it.

As journalists and lawyers have tried to unravel the errors of the "War on Terror", information is becoming increasingly shackled. At every turn there has been a new form of secrecy, each one tagged with a new euphemism, each more “special” than the last. The government files “public interest immunity certificates” which are intended to keep evidence from the public. The “Special Immigration Appeals Court” (SIAC) hears evidence in secret, and “Special Advocates” represent the prisoner, but are forbidden from talking to him.

Throughout this erosion of our liberties, the consistent theme is the insidious conflation of national security with national embarrassment. If a document will make the government look bad, then the Minister insists it must be withheld – or it will “give succour to our enemies.”

This was the slogan recited last week by David Miliband, testifying before the Foreign Affairs Committee. Britain is about to get a new “torture policy” which, with much fanfare, will be made public. There will be the instructions to British officials dictating the proper course of action when they learn about torture. They will be reminded of their duty under the UN Convention, and enjoined to file a complaint whenever the ugly face of torture rears before them. This is the kind of good news that ministers like the electorate to read.

What, then, of the “torture policies” that have been in force since September 11? How is it that so many cases of torture seem to have taken place over eight years, yet ministers have remained so silent, commenting only when cornered, and then restricting themselves to platitudinous protestations about never condoning torture?

Mr Miliband insisted this week that these earlier policies would remain secret. To reveal them would, he said, only lend “succour to our enemies.”

And why is that? What do these policies say that would lend aid to our enemies, and who might those enemies be?

To understand what he meant, we need to see the policies. As fortune would have it, Mr Miliband appears to have missed the fact that the cat is already half way out of the bag, and yawling loudly. The regulation in place from 2002 to 2004 has already seen daylight. In January 2002, a British officer witnessed Americans abusing prisoners.

He asked what he should do. On January 11, 2002, the government sent advice to all agents stating:

“Given that [the prisoners] are not within our custody or control, the law does not require you to intervene to prevent this.”

In other words, you need do absolutely nothing about torture when you see it.

Does knowing this give “succour” to Usama bin Laden? It would matter not one ha’penny worth to him. If he found himself in an American torture chamber, he would hardly expect some British officer invited into the interrogation to be his saviour.

So who might gain succour from this information? Deep within his heart, I suspect that Mr Miliband was thinking of his real enemies – those irritating journalists snapping at his heels, the shark-tank of lawyers swirling around him and, of course, the Tories.

A second round of torture advice was apparently issued in 2004. When pressed, Mr Miliband said that lawyers could see it if it was necessary to their case -- but of course these would be the “Special” advocates in the “Special” tribunal, so not even the prisoner could know what the advice was.

Cynics will assume that this advice was as reprehensible as the policy it replaced, else why would the government be so desperate to hide it? But we should not have to rely on a skeptical imagination. We – the British public, as well as the victims of torture – deserve to be told. We should also be told why the British still have not revealed the evidence of former Guantánamo prisoner Binyam Mohamed’s torture. We should be told about any other abuse that has been witnessed by British officials. And we should be told how it was that the Blair government concocted the scandalous advice quoted above – a policy that clearly violated our obligations under the UN Convention Against Torture.

There were many ways in which Parliament acted in haste in the wake of September 11th. Replacing freedom of information with censorship has not made Britain safer – quite the contrary. By abandoning our commitment to fairness and due process, the government has held us up as hypocrites to the world.

The truth about torture is simple: it should never been classified as secret. It is long past time that a full and open public inquiry should be held into how British officials gradually slid down the treacherous slope towards turning a blind eye whenever they came across an act of torture.

If the government is not willing to allow such an inquiry, perhaps the Independent would like to sponsor one? I have a sense that there are witnesses waiting to tell their stories.

This article also appeared in The Independent