Archive for February, 2010

Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010

The Houses of ParliamentOn February 3, 2010, the Joint Committee on Human Rights, comprising members of the House of Commons and the House of Lords, met to hear oral evidence on “Counter-Terrorism Policy and Human Rights: Control Orders” from two solicitors representing control order detainees, and three Special Advocates representing the detainees during discussions of secret evidence in court. The hearing took place two days after Lord Carlile, the government’s independent reviewer of terrorism legislation, issued his fifth report on the use of control orders (PDF), concluding that “The control order system remains necessary, but only for a small number of cases where robust information is available to the effect that the suspect individual presents a considerable risk to national security, and conventional prosecution is not realistic.”

In this second of two articles reproducing the oral evidence, which was originally made available here, Special Advocates Helen Mountfield, Angus McCullough and Thomas de la Mare spoke with considerable openness about the difficulties of their work, and also described their experiences of what has — or has not — happened since the Law Lords ruled last June, in the case of AF and others, that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

Oral Evidence
Taken before the Joint Committee on Human Rights on Wednesday 3 February 2010

Members present:
Mr Andrew Dismore, in the Chair
Bowness, L
Dubs, L
Falkner of Margravine, B
Onslow, E
Dr Evan Harris
Fiona Mactaggart
Mr Virendra Sharma

Witnesses: Ms Helen Mountfield, Barrister, Matrix Chambers, Mr Angus McCullough, Barrister, One Crown Office Row, and Mr Thomas de la Mare, Barrister, Blackstone Chambers, gave evidence.

Q33 Chairman: We have now been joined by our second panel of witnesses: Helen Mountfield, who is a practising barrister at Matrix Chambers and acts as special advocate for control order cases, Angus McCullough, who is a barrister at One Crown Office Row, Special Advocate, and Thomas de la Mare, a barrister from Blackstone Chambers, also an experienced Special Advocate. Welcome to all three of you; thank you for coming. Is there anything you would like to say before we start?

Mr McCullough: No, I do not think so, thank you, except thank you for inviting us.

Q34 Chairman: Perhaps I can start where I left off with the solicitors. Do you think the Home Office carried out a thorough review of all the material which had been relied on for the existing control orders to ascertain whether they should give you further disclosure?

Mr McCullough: I think it is probably difficult to comment from the perspective of an individual special advocate who sees only the small number of cases that one is involved in personally. Of the three cases that found their way to the House of Lords in the AF decisions, two were abandoned by the Government — the control order was abandoned — and the third the Government is seeking to maintain, and the substantive hearing to determine that has yet to occur. In terms of the review of the material the Government seems to take an approach that all the closed material is relied upon in seeking to obtain a control order and they await the decision of the courts with the involvement of the special advocates as to what it is they can continue to rely on to uphold that control order in the courts, which — and it is a slightly oblique way of answering your question — seems, at least from my individual perspective, to be the approach that has been taken following AF.

Ms Mountfield: I have one outstanding post-AF control order, and when AF was decided a letter was written to say that the evidence would be reviewed to consider what ought to be made open. If that happened I am slightly surprised. I would say a minimalist approach was taken if it did happen, but what in fact then happened was that that control order was revoked and replaced by a so-called light touch control order. There has still been no more disclosure. It is being argued that you do not need disclosure, that AF does not apply to more limited controls, and that argument failed in the High Court and is going to the Court of Appeal.

Mr de la Mare: I was involved in one of the appeals that went to the House of Lords and then was remitted to the High Court afterwards. My impression was that the Secretary of State’s attitude was that it was for the special advocates to make the running as to what should be disclosed in relation to the evidence base and not primarily for the Secretary of State to review the evidence base and make proposals with a view to disclosing certain information. Indeed, the position was yet more extreme. The Secretary of State was unwilling to comment as to whether or not they would exercise their decision to withdraw the evidence and the allegations in question. One will need to make a decision upon that until such time as the court has ruled finally as to the totality of the evidence and what should be disclosed, and only then would the Secretary of State decide whether or not to proceed with the case at all, whether or not to drop certain allegations or whether or not to make disclosure. As it turned out, after an extensive review by the special advocate of the evidence and submissions made in relation to that, the Secretary of State then decided that he would drop the control order in question. Their attitude is, “You make the running”.

Q35 Mr Sharma: How has the decision of the House of Lords in AF affected the Government’s position in current control order proceedings?

Mr McCullough: I think the proof of the pudding is still being eaten, as it were. A number of the control orders have been voluntarily revoked by the Government, a number have been quashed or revoked by the courts, and a number are still awaiting the court’s determination. As far as I am aware only one control order since the House of Lords decision in AF has been upheld by the courts in the face of a challenge.

Ms Mountfield: What AF decided was that somebody had the right to know the essence of the case against them. What that means in practice is quite difficult to determine in an individual case and I think the Home Office has taken quite a minimalist view, headline allegations only: “You are involved in terrorist fund-raising”, or whatever, to take a hypothetical example. If you look at the decision of the European Court of Human Rights and those in the UK, that suggests a greater degree of detail than that is needed. In that case they give the example that if you are going to say somebody has undertaken terrorist training you need to tell them when and where, and that is not the level of detail, as I perceive it, that is being given at the moment.

Mr de la Mare: I think it is important to understand that control order cases do not fit one particular type. They are potentially very different. At one end of the spectrum you have a case which is effectively a glorified intelligence assessment based upon a disparate series of sources and information intended to build a picture. That is described in various open materials as “mosaic” type cases. There is no centrepiece necessarily to the evidence against an individual in those types of cases. It is a variety of different strands woven together to build a case. At the other end of the spectrum you have cases that are effectively proxies for criminal prosecution, where there may be one grandstand allegation and effectively that allegation may even be substantially in open and you have evidence that can or cannot be adduced for those reasons. My judgment is that “mosaic” type cases are the ones that are being affected most by the House of Lords judgment because in those cases each little chink of the mosaic is an allegation and the logic of the House of Lords ruling is that each bit of that mosaic therefore must be disclosed in some form, whereas the cases that are proxies for criminal prosecutions — and I believe AF is a case nearer that end of the spectrum — it is possible to get closer to saying, “Disclose the allegations but not the evidence underpinning it”. It is very important to realise that different types of case are structured in different ways and may lead to different conclusions under the AF analysis.

Q36 Chairman: What proportion of the control orders do you think are these jigsaw/mosaic type things and what proportion are the one big thing that is the surrogate prosecution?

Mr de la Mare: That is very difficult to answer, being myself only a little chink in the wider mosaic. It is a very impressionistic matter but I suspect the great preponderance of cases tend to be mosaic cases rather than proxy criminal prosecution cases.

Q37 Mr Sharma: Is the Government’s approach to disclosure since the decision in AF in keeping with the spirit of the decision in your view?

Mr McCullough: It is probably no surprise that the Government seeks to restrict the impact of AF and the arguments in disclosure hearings whereas the special advocates argue for a broad approach and as much detail as possible requiring to be disclosed if an allegation is to be relied upon, so I suspect the Government would say that they are reflecting the true spirit of the judgment and, likewise, those on the other side of the argument say they are as well, so it is probably a debate. No is the straight answer to your question from the point of view of the special advocates.

Q38 Chairman: And those across the table?

Ms Mountfield: Yes.

Q39 Mr Sharma: Consensus there. Can you explain what a “light touch control order” is?

Ms Mountfield: An ordinary control order tends to have somebody required to remain at home for perhaps between nine and 13 hours a day, not to have internet access, not to have visitors without prior approval and so on. The light touch control orders no longer have that house arrest element in them but they restrict people from travelling abroad, from having more than one mobile telephone, from going away from home for a night without giving 48 hours’ notice, that sort of control.

Q40 Baroness Falkner of Margravine: Are they allowed to have visitors in light touch regimes?

Ms Mountfield: I cannot immediately remember and I am not sure I am aware of all the light touch control orders. They are less restrictive but certainly in my view still sufficiently restrictive to have a serious effect on people’s everyday lives.

Q41 Chairman: I think it was you, Angus, who said that you had a control order that was dropped after AF.

Mr McCullough: I think it was Tom.

Q42 Chairman: Is that right?

Mr de la Mare: Correct.

Q43 Chairman: We know that a couple were dropped after AF altogether. What happened to the two controlees concerned? Are they simply not subject to any controls at all or are they subject to surveillance?

Mr de la Mare: I must admit I am not entirely au fait with the current position. There has been a fairly protracted debate before Mr Justice Silber as to whether or not the order in question should be technically revoked or quashed. A similar debate has occurred in another case. That has implications for any potential criminal proceedings brought in relation to alleged breaches of the control order and it may have cost implications. I may be incorrect but I believe that the control order has simply been revoked and nothing put in its place.

Q44 Chairman: So as far as these two were concerned, if they were a threat to public safety they are not subject to control orders. They are still a threat to public safety, I suppose, with no controls over them, so it begs the question of whether the control order was necessary in the first place. Could I ask you how AF is being used in the lower courts now, because you have got this rather bizarre comparison between what the law says in the statute and how the law is applied by the courts, which seem to be mutually exclusive. Is the approach of the lower courts creating any practical problems for you?

Mr McCullough: I have already alluded to the Government’s basic approach, which is to rely on everything without taking into account AF and then leave it to the courts to tell them what they are allowed to rely upon as a result of AF. I think it is fair to say that the court’s approach is still bedding down and no universal approach as yet has emerged. There is a strand of judicial thinking which applies what has been termed the iterative approach whereby a bit of disclosure is given to a controlled person, the idea being that that may be enough for them to respond effectively and give effective instructions to their own lawyers and the special advocates, and if it turns out that it is not then to give a bit more, which I think leads to two difficulties. One is of a practical nature, which is that there is not really time in the already protracted court procedure to accommodate an iterative approach, and you find yourself up at the substantive hearing having then to re-address disclosure issues. The second difficulty is probably one of principle, as to whether it is really fair to adopt this iterative approach, to require a controlled person to respond to part of the case before letting him know the full part that he would ultimately be entitled to. I think those are the sorts of practical problems that are currently being grappled with.

Mr de la Mare: It is worth emphasising that the protracted history of these cases means that there are certain difficulties in interpreting what is happening in the particular cases for this reason. Almost all of the cases which have been remitted for reconsideration had at an earlier stage contested hearings at which, either under the pre-MB test or under the MB test, the question was first asked, “Can this material be disclosed without there being damage to the public interest?”, and invariably the answer in relation to the remaining material is that it cannot be disclosed without damage to the public interest in the view of the Secretary of State. [MB was an April 2006 ruling, in which Mr Justice Sullivan concluded that the imposition of a control order was incompatible with article 6 of the ECHR. In August 2006, it was overturned by the Court of Appeal]. Then, when one comes to apply the AF test, which is a separate, over-layering test of fairness that seeks to say, “Notwithstanding the damage to public interest that would be caused by this material, does fairness require it to be disclosed?” The inevitable consequence when the court says, “Yes, it must be disclosed”, is that the Secretary of State withdraws the allegation in question rather than disclosing material which will cause damage to the public interest. That is why, from the perspective of a controlee, you have this scenario where it seems as if nothing is happening, and indeed from their perspective nothing is happening, because what is the most that the special advocates achieve is a reduction of the evidence base rather than concrete disclosure of the allegations in question to the controlee, and in the most extreme example the net result is the evidence base collapses and the order is revoked. One can well see why such a process, which is potentially very protracted, particularly if the iterative approach is adopted, leads to frustration from the perspective of people outside the process. They see nothing concrete happening.

Q45 Baroness Falkner of Margravine: What you say is rather depressing, but, anyway, staying with the procedural rules, has the rule change which permits special advocates to adduce evidence made any difference in practice to your ability to ensure fairness? You have more or less all touched on that but is there anything else you want to add to that?

Mr McCullough: The answer is a resounding no. No special advocate, as far as I am aware, in any case, notwithstanding the rule change, has ever been in a position to adduce evidence him or herself.

Q46 Baroness Falkner of Margravine: How effectively are you able to challenge the Government’s objections to disclosure in these closed cases?

Ms Mountfield: AF has made it easier to have a principle basis for making such a challenge but, in terms of challenging the Government’s argument that disclosure would damage national security, we are not in a position to do it, because we do not have access to expertise and because that is, I think invariably, dealt with on a class basis, disclosure of the fact that a particular kind of intercept is possible and may damage the public interest. There is no question of what is or is not damaging in this particular case and therefore it really is not something you are in a strong position to rebut.

Mr de la Mare: There is only a limited number of tools in your arsenal in that context. One is finding material that has already been put into the public domain in another context, say, another criminal prosecution, even in another country in a related case. Occasionally that works, and the other main technique is to seek gisting of the allegation in question, which is to try and divorce the substance of the allegation from the supposedly sensitive detail that surrounds it, and that, whilst it may produce more information, nevertheless may result in an allegation of such vagueness being disclosed as to merely compound the frustration of those sitting outside the process because it does not necessarily leave them any the wiser.

Ms Mountfield: “Gisting” may be a verb we made up; I do not know.

Mr de la Mare: We have been using “gisting” for quite a long time.

Q47 Baroness Falkner of Margravine: Lord Carlile’s report says that improved training and closer co-operation should resolve the concerns the special advocates raised about the fairness of control order proceedings. To what extent do you think his report addresses the concerns you expressed to him about the limitations in your functions?

Mr McCullough: The particular problem that Lord Carlile refers to as having been highlighted to him by the special advocates is, of course, one of communication. Following receipt of the closed evidence the special advocate is prohibited from communicating with the open representatives of the controlled person himself other than in writing and through the court and in the full knowledge of the Secretary of State. That is the effect of the rules, both the SIAC rules in that context and Part 76 in the control order context. That feature of the rules, as this Committee will be well aware, has been the subject of criticism not only from this Committee but other bodies as well, and it remains a profound concern of the special advocates. The position has, at least in theory, been slightly alleviated by the House of Lords decision in AF, but the existing prohibition in our view — and I think, for reasons I will explain in a moment, that I can speak reasonably collectively here — remains a significant constraint on the special advocates’ ability to discharge their role effectively even in control order proceedings. And, of course, the AF principle does not, at least currently, apply in SIAC proceedings, so it is even more acute there. I was one of four special advocates that went to see Lord Carlile last October and we were very grateful to him for seeing us and we raised a number of concerns, of which this was a major one. Lord Carlile expressed himself to be sympathetic to our concern and asked for a note to be produced setting out our position in writing, and another special advocate, Martin Chamberlain and I produced a note which was circulated around the special advocate community, as it were, and subscribed to by, I think, 23 special advocates, and I think it is fair to say that the names appended to that note consist of almost all the special advocates who are regularly appointed or have significant past experience, although the total number of special advocates is rather greater. Many of those do not have significant experience, or indeed have possibly never discharged the role at all. It is, therefore, I think, a reasonably collective view that is represented by this concern and the Committee may have been supplied with a copy —

Q48 Chairman: That is my next question because I do not think we have.

Mr McCullough: Your secretary will be in a position to supply it. There is no reason why you should not have it. It is fair to say that Lord Carlile’s fifth report accurately reflects the basis of our concern in this respect in the passage which starts at paragraph 130, and the specific proposals put forward by the special advocates are recorded by him at paragraph 139, but I have to say that we are bemused by his conclusion at paragraph 140, having expressed himself to be broadly sympathetic to our concerns or complaints. He says that “improved training and closer co-operation should resolve the concerns recorded above”. I do not know if that is concerns about leakage of sensitive material or the special advocates’ broader concerns, but, as we see it, and as is apparent from the nature of the concern recorded by Lord Carlile himself, the problem is hardwired into the current rules, so we do find it hard to understand why Lord Carlisle concludes by doubting that any rule changes are necessary. In our view rule changes are necessary in order to address this problem and we have made our suggestions relatively modest and unambitious, as we see them, as to ways in which the present system could and should be relaxed.

Q49 Chairman: While you are on that part of the Carlile report, you will see the recommendations we made at paragraph 136 previously, which we subsequently repeated and none of those were accepted. [In the relevant passage, the JCHR recommended in 2007, “In our view, it is essential, if the Special Advocates are to be able to perform their function, that there is greater opportunity than currently exists for communication between the Special Advocates and the controlled person”]. Do you think those recommendations still stand?

Mr McCullough: I do, and you will see that we had them very much in mind in formulating our own proposals, so we would respectfully entirely echo those views. Indeed, the way in which the Committee put it, I think on the last occasion, was that it was essential that the existing rules should be relaxed. I am sorry, I have answered at some length, but there are two further points in relation to that which it may be worth drawing to the Committee’s attention. The first is that notably a less restrictive regime than that which is enshrined in the SIAC rules and in the control order rules appears to apply in the context of the use of special advocates in employment tribunal proceedings.

Q50 Chairman: We will come on to non-control orders later on.

Mr McCullough: It is simply by way of demonstrating that in that context, where material of probably equal sensitivity may be involved, it has not been thought necessary to have the same absolute prohibition on communication between special advocates and the open representatives, and the second point is simply to point to what has been adopted in Canada after the Canadians examined the British system and the British experience, and they have adopted a system which permits discussion between open representatives and special advocates on open matters, and have deployed a regime whereby the ex parte procedure may be used if there is a desire to communicate from the special advocates to the open advocates on anything that may impinge on closed material.

Mr de la Mare: Can I just add that in the United States, where I suppose the security concerns are every bit as great as in the United Kingdom, the system they have used, even in Guantánamo Bay, has been one in which open lawyers see all of the material and yet remain free to communicate with their clients. Training only has a rational connection to this issue if the training in question is training to ensure that lawyers who see both open and closed material do not inadvertently disclose matters of sensitivity in the courts of such exchanges with their clients. Otherwise, as Angus says, it is, with respect, irrelevant to the issues. The problem is one of fundamental bar.

Q51 Baroness Falkner of Margravine: Would it be fair of me to assume from what you have just said that your inability to communicate with the controlee affects your ability to represent their interests?

Mr de la Mare: Yes.

Mr McCullough: Yes.

Q52 Baroness Falkner of Margravine: How far does the decision in the House of Lords in AF affect any of these systematic limitations on your ability to ensure a substantial measure of procedural justice to the controlee?

Mr de la Mare: It does not address these matters at all, save that it identifies that as the overall touchstone of fairness, so that if, for instance, in any particular case you can articulate a need to communicate with the controlee and to point out that, absent such communication, there will be a loss of fairness tested against that standard, then that logically demands a modification of the existing rules to ensure that that type of fairness is provided. The problems on the barrier to communication operate on two levels, first of all the practical level. It is often a great practical inconvenience or impediment to have to put what can be mundane or routine correspondence through a very cumbersome approval process. It often results in an extremely frustrating scenario, where letters that you have drafted are substantially out of date and no longer fit for purpose by the time they come to be approved. You may be seeking to have some form of interaction in the procedural timetabling of the case and matters of that kind. By the time your letter is cleared by the security services or by the court, that letter is behind the times. That is the first impediment and the cumulative effect of that can be such as to impact on the fairness of the hearing. The second impediment is one of your substantive ability to represent clients to the best of your ability by adopting the wisest tactical course, by seeking, insofar as you can, to impart advice or strategy. There will be circumstances in which the closed material dictates that an ordinary competent lawyer should follow this strategy as opposed to that strategy, and yet you cannot communicate that in any way to the open lawyers unless you disclose those very issues of strategy, or indeed legal privilege, to the very party that you are meant to be acting against, and one has to question whether that is compatible with their rights to effective representation and the protection of legal privilege.

Q53 Chairman: Can I put to you a question I put to the solicitors earlier on, just going back to the Carlile report and findings? I take it from what you were saying that you were surprised by his conclusions on your representations to him, and, putting it neutrally, as Baroness Falkner would like me to, do you think it has got to the stage where the independent reviewer has lost a degree of independence, bearing in mind how long that office has been held? You can be diplomatic if you like.

Mr McCullough: I will resist the temptation to answer that question, if I respectfully may, because I do not think as a special advocate I bring any particular insight or authority in answering that question and I would defer to open representatives and their views and answers in relation to that.

Q54 Earl of Onslow: Before I go on to the question which I am going to ask about Lord Hoffmann, on closed evidence, in your experience, could a lot more of it be released? Are they being over-prescriptive on what can be disclosed and what cannot be disclosed?

Mr McCullough: I think that is a difficult question to answer. We argued more should be, and the courts form their view and perhaps inevitably the courts – “deference” may be the wrong word — accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security. So there are debates which go on as to whether more should be disclosed and the special advocates usually come out the wrong side of those debates.

Mr de la Mare: My answer to that question would be yes, there is more which could be disclosed, but I would not want to exaggerate the extent to which that is the case. There are often clear categories of information which are necessarily sensitive as to which no special advocate worth their salt wastes time arguing about. At the edges, in my judgment — and it is only an opinion — there is a substantial amount of information which could be disclosed. I do not expect for one minute anyone from the intelligence services would agree with that, but that is my opinion. One has to again ask the question, what is the risk you are dealing with, and to a certain extent what is the opponent you are dealing with. Sometimes my impression is that the abilities, intelligence-gathering capabilities, interests, sophistication of the opponent you are putatively keeping the information from is exaggerated; one is modelling for a Cold War scenario rather than the type of intelligence problem we currently face. But that is simply an opinion and I am sure others would vehemently disagree.

Ms Mountfield: In one of the cases the security service found its way into the judgment, a witness of the security service agreed that they are institutionally cautious and they take an extraordinarily precautionary approach to what needs to be kept private in the interests of national security. It was quite interesting that in AF Baroness Hay, I thought, sounded surprised that a class approach was taken — that “class” of document or that “class” of information can then be disclosed because — which is an approach which courts no longer take or no longer take as regularly in other forms of proceeding. I would agree that my opinion is sometimes more could be disclosed but that really is a judgment call in particular cases.

Q55 Fiona Mactaggart: On this issue of disclosure, I understand you operate as lawyers and I am a politician, but one of the things I am wondering is, do you ever have any conversations with people who make decisions that classes of documents, et cetera, should not be disclosed about the implications of that kind of thing? Is there any space in which special advocates and spies can sit down and talk about what can and cannot be disclosed? If not, why not?

Mr McCullough: It happens at one remove, in that the standard procedure in relation to these discussions and debates is for the closed evidence firstly to be produced by the Government, the special advocates to produce a schedule of submissions as to that which we say should be made open, either because it can be made open without any risk to the public interest or because AF now requires it to be made open. The Secretary of State responds by way of a schedule, point by point, document by document, whatever, and then a meeting takes place between the special advocates and counsel instructed on behalf of the Government. Those counsel then tend to go away and take instructions from those concerned and come back and tell us what we can and cannot have voluntarily and what we will have to argue before a judge, because we are not going to get it from them voluntarily. That is the way the procedure works. There is no direct discussion between the special advocates and members of the relevant agencies concerned.

Ms Mountfield: And special advocates have tried to argue whether the class approach is appropriate in individual cases and have not got very far.

Mr de la Mare: Your question is a very good one but the relevant party with whom to have discussions is not politicians.

Q56 Fiona Mactaggart: I know.

Mr de la Mare: Politicians have but extremely occasional involvement in decisions of this kind. The relevant interlocutors are the intelligence services, and the intelligence services in my experience have a view, and it is not a view from which they are easily moved and not necessarily one they are interested in debating.

Q57 Fiona Mactaggart: It is not a view which in many other contexts is in any way justiciable, which is accountable to the courts usually. One of our problems is that one can argue it is not as accountable as arguably it should be, but yours is one of the very few spaces in which there is that bit of accountability. I just wonder whether there is any possibility of creating a space which is not just about lawyer talk — and I am not “dissing” your profession in any way — but which brings the insight of the law and judges’ statements and the insights of people whose job is to go round spying and keeping us safe together in a space which is not, “Me being one side and you being the other side in a sort of court room war”, but actually have a conversation about why something is dangerous, why something is just and unjust. It really strikes me that that conversation would potentially be a helpful conversation to serve the ends of justice.

Mr de la Mare: There are two things I would say in relation to that. Firstly, the type of process you are describing is to a certain extent a compromise base process, and it is not necessarily one that fits the type of discussion which is on-going, not least because ultimately the special advocates in this particular area have reasonably little leverage. The way the case law is structured is such that the courts recognise these issues are on the border line of justiciability and they recognise the very special acquired expertise of the intelligence services. It is only in a very exceptional case they will gainsay an intelligence assessment made by the intelligence services. First of all, there is little leverage. The second issue is that at the end of the day what underpins all of this is a risk assessment, and different and rational people can take a very different approach to risk assessment. As Helen points out, if you start off from an institutionally cautious basis — and no one could rightly criticise the Secretary of State or the intelligence services from starting off from that perspective — if you start off with that caution in-built, you are always looking to maximise the extent to which you give effect to that in terms of restricting what is disclosed. So at the end of the day, if you are adopting that mentality, there is not much room for a debate about compromise in any event.

Q58 Chairman: Do you always act on one side? Have you ever acted on the security services side of the fence?

Mr de la Mare: I have acted for the security services but not in a control order case. But I have acted in another national security case.

Mr McCullough: Likewise. I have often acted for the Home Office in other contexts and have also acted for the intelligence agencies in other contexts.

Ms Mountfield: Once, but not in this context. I understand in these cases there is now a protocol to keep those who have been vetted as special advocates and those who have been vetted for the Home Office apart, so they do not nick each other’s lawyers.

Q59 Earl of Onslow: One of the things which seems to be coming out of this particular section of discussion is that there is no public light upon where the border should be set. It seems to be a closed conversation between everyone. Would it not somehow be better if there could be a level of public light on this which would, once it was found out what the level should be, have a greater legitimacy than it appears to have? I hope I am making myself clear.

Ms Mountfield: When evidence is served in open and closed form on special advocates, it comes with an open schedule of reasons why some of the evidence is closed, and a lot of that is in very general terms — “national security requires our intelligence-gathering techniques to be kept closed”, sometimes “people’s lives may be in danger”; it is in very generic terms. Sometimes a closed schedule gives more detailed reasons in a particular case about why things are closed. It is difficult to see, given that we do not have many weapons to gainsay what is actually in the end a judgment, as Tom said, how much further than that it can go. In the end, we have discussions with the advocates for the Secretary of State and the security services and if we do not agree we go to the court, but the court will also have a certain degree of deference to what they say; it is their judgment as to what measure you are meant to use to criticise their judgment. So it becomes quite difficult to adjudicate upon.

Q60 Earl of Onslow: I am not under-estimating the problem. Lord Hoffmann and Lord Hope have basically observed that as a result of the House of Lords decision the system of control orders is possibly unsustainable. Would you go along with that? Lord Hoffmann’s actual quote is, that the Lords decision “may well destroy the system of control orders which is a significant part of this country’s defence against terrorism”. Lord Hope also observed that the result of the decision may be that “the system is unsustainable”. Comment please.

Mr McCullough: I think that remains to be seen. Certainly, as we have already indicated, a number of control orders have been recognised by the Government to be unsustainable and a number have been quashed by the courts since the judgment in AF, and a further number are pending before the courts. So the overall sustainability of the system remains to be seen, as to whether there is a significant number of control orders that can survive the decision in AF.

Mr de la Mare: Going back to my spectrum, it is going to be the mosaic cases which become harder to sustain. Proxy-criminal cases will be easier to sustain. The Secretary of State is to a degree caught between a bit of a Scylla and Charybdis because we have talked about the Scylla, which is the European Court of Human Rights, but there is also the Charybdis, which is the European Court of Justice and the Corriet case law which is likely to be increasingly relevant in relation to the so-called control order lights. Internal exile actually concerns one of the protocols of the European Convention on Human Rights, which is not incorporated in the Human Rights Act but is recognised to be a fundamental right in EC law, even where no free movement within Community Member States is involved — there is a case called Rutili. I suspect we are going to see considerably more argument about that as the control orders get watered down.

Chairman: That sounds quite complicated, we are going to have to work on that one I think.

Q61 Earl of Onslow: If it does become unsustainable, what — and I am probably going to get a rocket from the Chairman for asking this question — can you put in its place or how would you do it?

Mr McCullough: For my part, that is a question that special advocates do not really have a particular expert view to offer this Committee, and I would defer to reviews of open representatives generally.

Chairman: That is a fair point.

Earl of Onslow: Gareth Peirce did have a view.

Q62 Chairman: That is their position. The Home Office, in their memo to the Home Affairs Committee on control orders, says, “various House of Lords judgments have confirmed the way in which the 2005 Act operates in a manner fully compliant with the ECHR”. Do you think that fully characterises MB and AF?

Mr de la Mare: No.

Q63 Chairman: I thought you would say that!

Mr McCullough: It is a striking comment and it certainly struck all three of us, because it does not seem to us to reflect our reading of the House of Lords decisions. They do not on our reading appear to be a confirmation of the way in which the 2005 Act operates in a manner which is fully compliant with the ECHR.

Dr Harris: The Home Office would say that it can operate if it is read compliantly with the rule. That is their get-out.

Chairman: That is a Humpty-Dumpty argument, is it not?

Mr de la Mare: I think a fairer way to put it is that the guidance contained in two House of Lords judgments and in a judgment of the European Court of Human Rights has indicated how it may be possible to operate control orders consistently with human rights legislation.

Q64 Chairman: I think that leads me to my next question, and I can probably guess the answer to this one as well. If we are keeping control orders, do we need to change the legislative framework to reflect more accurately the way the courts require the system to be operated?

Ms Mountfield: That would be very helpful.

Mr McCullough: I think it would. Again, probably not a particular special advocates specific question, but there does seem to have been a gulf that has developed between what Parliament has set out should happen and the way in which the courts have said things are required to happen in order for the system to operate compatibly with ECHR requirements. When such a gulf has developed, it may well be sensible for the law to be brought into line, the legislation and rules to be brought into line.

Q65 Chairman: Rather peculiarly, it was not a certificate of incompatibility case, I think.

Mr de la Mare: I think it is also fair to say that Parliament did not necessarily have it fully explained to it that the system as previously operated was a substantial departure from the way that public interest immunity works at common law. At common law there is a three-stage balancing test for public interest immunity, the final stage of which is to balance the unfairness against the damage to public interest. If there is an intolerable unfairness, then the material must be disclosed.

Q66 Chairman: Or the case dropped?

Mr de la Mare: That stage in the common law public interest immunity stage was effectively abolished by the legislation and the gradual effect of the decisions in MB and AF was to replace it so that the legislative test effectively again looked like the common law test. I think before Parliament is asked to do something of that kind again, the reasons for any abolition of the common law test replicated in Strasbourg should be closely articulated. Now the House of Lords has said that that test should be re-introduced and it should appear consistently.

Chairman: I suppose the inference is that if we re-legislate to try and put things right and get it wrong, it would be an incompatibility a second time around; speculative, I suppose.

Q67 Earl of Onslow: I see that Lord Carlile says that he has considered the effects of the Court decisions on disclosure, and in his view it should be possible in most cases to provide sufficient disclosure to comply with legal requirements without damaging the public interest. Do you agree?

Mr McCullough: I think that is probably a case-specific question but I rather doubt it. For reasons Tom has explained, in most of the existing control order cases that were in existence before the House of Lords decision in AF, a conclusion had been reached that the closed material could not be disclosed without there being harm to the public interest. As a result of AF, that material has to be revisited. Insofar as allegations which are currently closed are required to be made open in order to comply with Article 6 and the principles expounded in AF, then a decision has to be made by the Government as to whether to disclose on the one hand, and thereby incur harm as the Government assesses it and courts have accepted to the public interest, set against the harm that the Government assesses there would be through not having a control order at all. So there is a judgment for the Government to make in each case where they have been told that disclosure is required in order to comply with AF. I think those are case-specific and, even within cases, elements-of-evidence-specific judgments which fall to be made, and it is probably not possible to generalise across the system. At least I would be reluctant to do so.

Q68 Chairman: Talking about generalisations, I just want to move on to other types of secret evidence cases briefly and implications for AF for them. You have identified with the assistance of the Home Office some 21 different types of cases which involve secret evidence and special advocates to some degree or another, do you think AF has implications for use of secret evidence and your role in other types of cases?

Mr McCullough: Yes.

Ms Mountfield: Yes. The big category of case where AF has been said so far is in passing not to apply is SIAC proceedings because they are deportation proceedings —

Q69 Chairman: That was the next question.

Ms Mountfield: — and AF does not apply, but there is a case which is going to the Court of Appeal in June called Z and Others, where that is being challenged at least in relation to the assessments about national security. It is a common law fairness argument and the argument that has been advanced is that Article 6 may not require this but there are lots of dicta that fairness is fairness, or a minimum of fairness is the same in all types of proceedings, whether or not that is backed by European law principles or common law principles.

Q70 Chairman: We had better not go into that too much because of the sub judice rule which binds us.

Ms Mountfield: I am not telling you what the argument is.

Mr McCullough: There is a range of other contexts in which it remains to be determined, at least remains to be determined by the Court of Appeal, as to the applicability of AF. Those include the so-called “light touch” control orders, which at first instance it has been held AF principles do apply, but that is subject to appeal due to be heard by the Court of Appeal in the next few months, I think. Similarly in the context of employment tribunal proceedings, that is due to be considered by the Court of Appeal. So the scope of the applicability of AF principles remains to be determined by the courts.

Ms Mountfield: And curiously SIAC bail — whether or not you can get bail in SIAC — does engage AF principles; whether or not you can be actually sent back is sub judice.

Mr de la Mare: Particularly contentious is likely to be the classic civil proceedings, and the most obvious instance of that is the civil proceedings being brought consequent upon extraordinary rendition and such acts. There will be real questions raised there about to what extent AF applies to a classic tort claim.

Q71 Chairman: So, damages cases?

Mr de la Mare: Damages cases, yes.

Q72 Chairman: Interesting. I think we have finished our questions, is there anything you think we have missed or would like to add?

Mr de la Mare: One point, which is law reporting. In the Binyam Mohamed case, quite extraordinarily the ICLR, that is the charity responsible for law reporting, intervened to point out how much their job was being impeded by closed hearings and closed arguments, including closed arguments on law, and they invited some attention to be given to how these cases could be effectively and procedurally efficiently reported. That is a subject which I would suggest is allied to this whole topic so that the public can inform themselves as to what is happening from a legal perspective.

Q73 Chairman: That goes beyond control orders, that is generally in these cases?

Mr de la Mare: That is also linked to the problem of closed judgments, and there is an increasing corpus of closed judgments with which special advocates have to familiarise themselves. So there are a number of practical issues connected with that, not least whether or not an advocate in one case can get access to a closed judgment in another case because of the specification of not only the law but of the facts.

Q74 Chairman: How do the courts get access to them then?

Mr de la Mare: A very good question.

Q75 Chairman: You have a closed judgment in one case, if you are a special advocate in that case and you have a subsequent case, you obviously have access to it —

Mr de la Mare: You say “obviously”, but if it is in relation to facts that are themselves sensitive and summarised and you do not have a need to know those facts, the security services may object to you reading that judgment.

Q76 Chairman: So you have a judge who has to decide one of these cases —

Mr de la Mare: The judge can read it.

Q77 Chairman: How does the judge know it exists?

Mr de la Mare: That is the problem.

Mr McCullough: Before you even get to the issue of access you have to be aware that a judgment which may be relevant exists.

Q78 Chairman: So what happens? Is that word of mouth amongst the special advocate community, as you call it?

Mr de la Mare: Yes.

Mr McCullough: Which is not an ideal or satisfactory way for this body of closed case law to have been made available to those who need to operate it.

Q79 Chairman: If we are looking at the development of the common law in this area or statutory interpretation, you could have mutually contradictory judgments —

Mr de la Mare: To give you a practical example, in the AF case, the special advocates got together and summarised the effect of all the closed judgments dealing with disclosure and distilled the disclosure principles which had been applied in the various closed disclosure application hearings, and persuaded the Secretary of State to make that document open. It was then incorporated in the judgments in the House of Lords. That was the first time the precedent was made known what the criteria were by reference to which —

Q80 Chairman: So you wrote your own precedent?

Mr McCullough: We summarised the precedents.

Mr de la Mare: We wrote the head note, I think is more accurate.

Q81 Dr Harris: If you are doing a discrete case, there are certain legal arguments where you are arguing about disclosure but you are not able to make them efficiently, for all you know, because you may not be able to draw on previous judgments and previous arguments, because those include facts that you are not entitled to know, because they are to do with a different case unrelated to the one you are working on?

Mr McCullough: Yes.

Mr de la Mare: Yes.

Ms Mountfield: Yes, and it is problematic.

Q82 Lord Dubs: Suppose you as an individual had been involved with both cases?

Mr de la Mare: Then you would know and you would be —

Ms Mountfield: But that is ad hoc.

Q83 Lord Dubs: That would be pure luck?

Mr de la Mare: Yes.

Q84 Dr Harris: Have you raised this as an issue? What has been said when this has been raised?

Mr de la Mare: “Under consideration”.

Q85 Lord Dubs: If you have been involved in another case, say Case A, can you in Case B, if you happen to be individually on both of them, quote Case A?

Mr de la Mare: Not without prior approval.

Q86 Chairman: So they can restrict you relying on previous precedent?

Mr de la Mare: That is possible, yes.

Q87 Chairman: Has it ever happened to you?

Mr de la Mare: It has actually, yes.

Q88 Dr Harris: How do they know you are using an argument from a closed judgment if you do not cite the closed judgment and just come up with the argument?

Mr de la Mare: I cannot really go into specifics.

Chairman: You cannot argue the basis of the case if you do not cite the case.

Dr Harris: No, but you can make the argument.

Q89 Baroness Falkner of Margravine: You get together as a community, so you speak to each other. Do judges have that sort of relationship where they also find out by speaking to each other?

Mr de la Mare: The Special Advocates Support Office convenes regular meetings in which we discuss so far as we can these points of principle which emerge, so we inform each other as to what is happening in relevant cases. That may work reasonably well amongst the special advocates at the moment, but as the pool grows bigger that becomes more problematic. There is a wider problem, which is that some of these principles are principles of law and they should be known by the open lawyers so that the open lawyers can fix appropriate strategies or take informed decisions as to what to do to best represent their clients as against knowing how the special advocates will act, may act or be inhibited from acting in consequence.

Q90 Chairman: It also affects academic research on all this and the work we do.

Mr de la Mare: Yes.

Earl of Onslow: How much of the stuff for the courts is a matter of public record or is it all closed?

Q91 Chairman: That is the whole point.

Mr de la Mare: That is precisely the objection of the law reporters, which is that it all should be a matter of record and decisions on points of principle should so far as possible be contained in open. The courts, to be fair to them, strive as far as they can to put points of principle into the open judgments.

Q92 Earl of Onslow: The question I am asking, and again I am seeking knowledge, can I as a member of the public just walk into the court and hear you arguing your case?

Mr de la Mare: The closed case, no, the public are excluded.

Q93 Earl of Onslow: Are all of these cases closed?

Mr de la Mare: The public are fully excluded from the portion that deals with the closed evidence and arguments in relation to the closed evidence, closed witnesses.

Mr McCullough: In every case there will be an open stage and then a closed stage, and the public are excluded from the closed stage and that is when the special advocates ply their trade behind closed doors.

Q94 Chairman: One specific question which I must put to you, has any minister met with or asked to meet with the special advocates to discuss your concerns about the process?

Ms Mountfield: No, not as far as I know.

Mr McCullough: Not in recent times, I think.

Mr de la Mare: I remember a meeting with Lord Goldsmith, but that was before the House of Lords decision in MB. It was some time ago.

Mr McCullough: I have an idea quite a number of years ago a Home Office minister did meet with a small number.

Chairman: I remember Tony McNulty promising us he would do so and I was reminded of the promise.

Q95 Dr Harris: You would remember him if you had met him!

Mr McCullough: It was not me but I think a meeting did take place, and it sounds as if it was on this Committee’s prompting. I think that did occur some years ago.

Ms Mountfield: Another special advocate and I corresponded when the new rules were being drafted for SVAP, the Security Vetting Appeal Panel. We had real concerns about the proposed role for special advocates in that context and we wrote and expressed those concerns and copied it to the Attorney General who did then intervene and she supported us.

Q96 Chairman: Did you have an extra point you wanted to raise?

Ms Mountfield: A lot of what we have talked about is rule changes and there is one, I think, endemic problem in closed proceedings which deserves to be made open, which is about the very late disclosure of documents by the Secretary of State to special advocates. I have taken soundings from other special advocates about whether that is a fair word to use and it is a fair word. In almost every case a very substantial volume of disclosure, sometimes very important disclosure, arrives on the Friday before a Monday hearing or a couple of days before. I think it is fair also to say that the special advocates share a serious concern that that prevents them from performing the function they are intended to perform.

Q97 Chairman: This is closed material?

Ms Mountfield: The system is that the closed material is served, we ask for some of it to be made open, we meet with the advocate for the Secretary of State to try to agree that, if we cannot agree it we go to court and get a decision about what ought to be disclosed. What often happens is that very, very shortly before the substantive hearing another wadge of new material arrives. Sometimes that is additional material which comes as a result of late review but not always. We are often aware of documents which we know were available many weeks or months before. It is very disruptive.

Q98 Chairman: When you say it arrives, it arrives at your chambers?

Ms Mountfield: Yes. You get a note that it has been delivered to your safe. It may be that much [indicates size], it may be three lever arch files, you do not know how much it is going to be, you have no guide to what is in it.

Q99 Chairman: Are there rules about where you can take it? Can you take it home to work on it over the weekend?

Ms Mountfield: No, you cannot take it home. If it arrives on a Friday before a Monday hearing, that is extremely problematic. There is a real lack of discipline about that and there is a lack of sanction. You stand up and say, “This was terribly unfair, we have done our best but we are sure we have done it in too hurried a way, what can the court do?” In private proceedings they might say, “We will not allow that late evidence to be used”, but they cannot do that here because it is evidence about national security. You cannot say, “We will decide a national security case based on only half the evidence”. There is no cost sanction, it is money moving from one part of the Treasury Solicitors to another. If you really need an adjournment, I guess you would seek it, but the controlee does not really want this to go on for still longer than it already has, given the delays which are inherent in the system. What we do, and I do not know whether Angus has done it, is to register our concern and we try to make that open if we can and the courts share our concern, and on we go. It is not something about the rules but it is a very, very serious problem about the operation of the special advocates system. I think sometimes when the higher courts express views on the role special advocates can perform, that is based on lucky ignorance of quite how difficult it is in practice to do the job which the rules say we do. That is a difficult position for a lawyer to be in if you care about the rule of law and this is a system for filling a justice gap.

Mr de la Mare: Helen’s point is extremely well made. Every single special advocate has experienced this problem. There are two inevitable consequences about making disclosure. The first is that this material is incredible dense, it is incredibly difficult to parse, and parse it you have to do, word by word often, unpicking the various synonyms or codes used in this documentation. It takes a long time to read and you read it without the benefit of someone to help you with it, because you do not have a client, you do not have an intelligence expert to tell you what this document means or does not mean or what its implications are for other documents. You do not read it in isolation, you have to read it with the documents it has to be read with or refers back to. To do that job properly takes time and you cannot do it if you are dumped with the material the day before court. The second point is that late disclosure inevitably means that the thing which is lost is the disclosure process, and it is the disclosure process which is one of the two most important jobs that a special advocate does, namely ensuring that, insofar as it can be, the material in question is put in open, or a gist is provided for it or some form of follow-up occurs. That process always goes out the window when you get late disclosure.

Q100 Chairman: That begs the questions, is this a conspiracy cock-up or a cocked-up conspiracy? Is it a deliberate tactic?

Mr McCullough: I echo the experiences of both Tom and Helen. I would not suggest that it is a conspiracy. I think the Government forces, as it were, are overstretched, but they realise, or at least have at the back of their mind, that there is no effective sanction that the court can impose for these serial and routine breaches.

Q101 Chairman: So you would not say it is a deliberate tactic?

Mr McCullough: I would not say it is a deliberate tactic, but I think the special advocates’ ability to discharge their role effectively falls quite a long way down the order of priorities that the Secretary of State and his team have in the way they conduct the litigation. This leads to these endemic problems. As Helen has said, my recent practice at least — so that open advocates are aware of the position at least — is to produce a note setting out the chronology of what has occurred and getting the court’s permission with the Secretary of State’s approval for that note to be disclosed to the open advocates. It does not remedy the position but at least the open representatives are aware of what is going on. It may be possible, if the Committee were interested, for me to give just one example by way of such a note which has been approved for open disclosure as illustrative of this widespread problem.

Q102 Chairman: That would be helpful.

Ms Mountfield: On cock-up or conspiracy, frankly it does not matter.

Q103 Chairman: It matters to the extent that if it is a deliberate strategy then that is a rather more serious thing than simply a lack of resources or lack of competence.

Ms Mountfield: But the effect —

Q104 Chairman: The effect on the individual is the same but the remedy is very different; the political remedy from our point of view.

Ms Mountfield: The problem is different agendas. The security service is taking an institutionally cautious approach to do whatever it takes to protect national security as they perceive it in a particular case. Overstretched government departments are going through their documents to do the things they have said they will do, but it does not much matter if it is late, because at the end of the day there is not a sanction. It is a real concern if you think the rule of law matters. The other real problem is that it is all closed and one wonders whether it would happen quite so frequently if this was a process which was open to public scrutiny.

Chairman: I think we are going to have to draw a line there. Thank you very much, it has been a fascinating session.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010).

Control Orders: Solicitors’ Evidence before the Joint Committee on Human Rights, February 3, 2010

The Houses of ParliamentOn February 3, 2010, the Joint Committee on Human Rights, comprising members of the House of Commons and the House of Lords, met to hear oral evidence on “Counter-Terrorism Policy and Human Rights: Control Orders” from two solicitors representing control order detainees, and three Special Advocates representing the detainees during discussions of secret evidence in court. The hearing took place two days after Lord Carlile, the government’s independent reviewer of terrorism legislation, issued his fifth report on the use of control orders (PDF), concluding that “The control order system remains necessary, but only for a small number of cases where robust information is available to the effect that the suspect individual presents a considerable risk to national security, and conventional prosecution is not realistic.”

In this first of two articles reproducing the oral evidence, which was originally made available here, Gareth Peirce and Sean Mcloughlin described life under control orders, responded to questions about whether they had “confidence in Lord Carlile as an independent adjudicator,” and explained how little has changed in the system since the Law Lords ruled last June, in the case of AF and others, that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

Oral Evidence
Taken before the Joint Committee on Human Rights on Wednesday 3 February 2010

Members present:
Mr Andrew Dismore, in the Chair
Bowness, L
Dubs, L
Falkner of Margravine, B
Onslow, E
Dr Evan Harris
Fiona Mactaggart
Mr Virendra Sharma

Witnesses: Ms Gareth Peirce, Solicitor, Birnberg Peirce, and Mr Sean Mcloughlin, Solicitor, The Rights Partnership, gave evidence.

Q1 Chairman: Good afternoon, everybody. This is an evidence session of the Joint Select Committee on Human Rights looking at Counter‑terrorism Policy on Human Rights, and this session is looking at the question of control orders in advance of the control order renewal debate, which will be taking place I understand probably towards the end of the month. We are joined for our first panel by Gareth Peirce, solicitor at Birnberg Peirce, with extensive experience of acting in terrorism cases, who has represented a number of individuals subject to control orders, and Sean Mcloughlin, who is a solicitor at The Rights Partnership in Birmingham, who has also represented individuals subject to control orders. We would like to start by trying to get a feel for what it is like for somebody who is subject to control orders, so perhaps you could give us some practical examples of the sorts of difficulties that a controlee faces as a result of being under a control order?

Ms Peirce: Probably the primary sensation is of despair and of feeling utterly impotent in a situation to contest it, to cope with it, and to understand the implications, because it descends on the person and usually the family overnight and unexpectedly. To simply illustrate the extent of the despair, there was at one time in Belmarsh Prison in the healthcare section three men whom I represented, all of whom had made serious attempts on their lives, all under control orders, all of them imprisoned because they were in breach — a criminal offence — of the control order; all of whose wives had left them temporarily or permanently, and that statistic woke us up to the enormity, if we needed waking up, of the effect. It affects not merely the man — it has always been men up to this point — but his wife if he is married and his children, all of whom are subject to the same conditions. They are all debarred from having visitors, if that is a condition, unless they are cleared; there are prohibitions on the use of phones; an inhibition on arrangements for family meetings; and often what strikes particularly at the heart of those with anything from seven-year old children up is the restriction on having a computer or the internet in their house, because now, in this country, much of the children’s curriculum is based on the use of the internet, so there are repeated situations where children have been in trouble at school because they — bright, academically high achieving children — have fallen by the wayside and been in trouble despite repeated requests to have access for the children, even in one case where the man could not read or write in English and was completely computer illiterate. So, in summary, the impact can be, and usually is, colossal on the person himself and his family.

Mr Mcloughlin: I echo Gareth’s comments. The impact is massive on the whole family. One of the other aspects is that people under control orders are often told where they have to live. My clients came out of deportation proceedings. I am an immigration lawyer so I act for a number of individuals in deportation proceedings, and when those deportation proceedings were no longer sustainable and the government lost the challenge, the individuals placed on control orders, and the families, have to up sticks and move to other areas, and that of course involves taking the children from schools, friends and communities, and that has had a massive impact certainly for my clients. For example, one client had children who were at a private school in Birmingham and doing very well there, supported by a charity who paid for the fees, but in order for them to be reunited and cohabit together as a family they had to move elsewhere and that meant the children leaving that school, but it applies to all the families and all the clients I have had. The impact is horrendous and, of course, is so difficult for people to understand because of the scheme that people are put under control orders and are not told why in any great detail, and then, of course, comes the challenge and our position trying to represent people who are in this predicament. But I should emphasise the daily impact on the clients and their family members is something which affects them every single day in so many different ways, and we have to deal with that. Our offices are so very busy because every time a client wants to go outside the boundary perhaps to visit us for an appointment, or to do something like attend a hospital appointment, everything has to be done by correspondence to get approval from the Secretary of State and from the Home Office, and they find that incredibly frustrating. Perhaps we will talk a little bit later about those issues and how problematic even those issues are for us.

Q2 Chairman: When we look at the independent review of Lord Carlile and all the Government statements they say that account is taken of the impact on the controlee and the family of the control order itself. Does that correspond with your experience?

Mr Mcloughlin: No, it does not. The control order is made and everything else is as a consequence of that, so in our experience in dealing with the issues that arise for our clients and their family members it seems that these things are just managed as a result of the control order being made; they do not seem to feed into whether a control order should be made. These issues seem to be secondary, if not appearing further down the list, but they are real problems for our clients and their families.

Ms Peirce: I think the box gets ticked where you have taken [the impact] into account, but what may [not] have been sent may have been extensive psychiatric reports about the whole family, child psychology reports, reports of how children are bed‑wetting, reports of how well‑behaved children become severely disturbed at school. And there is a further growing use of a form of internal exile, which Sean referred to, and that is not just in relation to people who are formally the subject of immigration detention. It is being applied to British citizens who have grown up, for instance, in east London all their lives, whose grandparents are there, whose wife’s grandparents are there, who are suddenly parachuted into a place in Nottinghamshire, in Gloucestershire, where the man is told from there on in he has to live there, that it is a modification of his control order, and, to be frank, the women in this are treated with complete contempt. It is as if they do not exist. The man is told: “Your wife, if she works, can find another job; she can join you if she wants to or she can stay in east London. We know that you can find schools for the children in the area”, and the effect of this on a number of families is quite extraordinary. The Home Office in its report talked about managing the Muslim community and reassuring them. This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice it is colossal. It is not something that other people in the community are in ignorance of. It is highlighted because of the perception of the extent of the injustice, so it has a wide effect.

Q3 Chairman: Is it the norm for people to be moved to another location altogether, or are they the exceptions? You have mentioned two cases. We know at the moment, for example, there are twelve control orders extant. Would you have any idea how many of those twelve have resulted in removal to another part of the country?

Ms Peirce: I am thinking of five recently where there have either been removals or a notification of an immediate removal which has been challenged, but in the way that the courts are now dealing with it there has to be the modification before the challenge can be made, so an attempt to obtain an injunction in anticipation, the courts have said was not an appropriate way to deal with it.

Q4 Earl of Onslow: Lady Kennedy told me the other day she was representing somebody and she used those words “internal exile”, which is something normally only applied to the Romanov Tzars in Russia, and we are the only country that seems to be copying the Romanov Tzars in internal exile. Can you tell me how that court case went, whether there was a modification and whether the courts came out and said, “Up with this we will not put”?

Ms Peirce: I know the case you are referring to and in the end the court did not allow that person to be moved. It was a particularly extreme case where the person concerned had an exceptional and life‑threatening medical condition, and arguments were accepted that he and his wife needed to be within immediate range of their consultant treating doctors. But for that he might well — I think he would — have been moved to a very long distance away from the place where he had grown up.

Q5 Chairman: Coming on to some of the practical problems from your point of view as representatives of controlees, can you describe some of the difficulties you have experienced both in general terms of representation, in making appointments, for instance, and also specifically because of closed material?

Mr Mcloughlin: It is not rocket science, and the Committee is fully aware of how these things work. The evidence we get justifying the control order is limited, and for us to take instructions from a client to address the assertions is very difficult, and for that client to be able to respond in any meaningful way. In essence, his evidence is given in a vacuum, because he does not know quite a lot of the case that is being alleged against him. Equally, the client will be suspicious of how any information he gives may be used, and clearly if you are trying to challenge an allegation against you, the allegation needs to be made to you. That is not, as I say, rocket science, and it obviously builds the frustration for the clients and is frustrating for representatives such as ourselves trying to represent the client with limited information.

Ms Peirce: I think the process is so prolonged there is not an immediate remedy. Because of slow service of evidence, if it is a civil proceeding, then there is the interjection of special advocates, secret hearings — it is an extraordinarily prolonged process. There have been victories won in the courts but the interminable back and forth, back to the High Court after the House of Lords has decided in your favour, in the end breeds bleak cynicism, that whatever happens, the goalposts will be moved. One man in particular was detained for three and a half years under the Anti‑Terrorism Crime and Security Act, won in the House of Lords once, won in the House of Lords twice on the basis that evidence derived from torture could not be used in his case, won in the European Court of Human Rights on the basis, relevant to this, that he had never had anything disclosed to him that was sufficient to provide due process; then was on a control order, which is still in being today on the same evidence, the House of Lords having decided it was insufficient. That is a very long time to have won successive legal victories and yet remain in that position, and it does nothing to reassure those who are affected that the law, or the lawyers, can help them at all.

Mr Mcloughlin: Can I just add that a client of mine had his control order quashed because the Secretary of State was misled on the evidence presented when the control order was made, and Mr Justice Mitting quashed that control order. Two days or so before the judgment was handed down the Home Office made another control order, so for him he had a victory on the grave basis that the Secretary was misled as to the evidence, and yet he finds himself in exactly the same position, even though he succeeded, and life did not change for him. The same control order was made, the same conditions applied, and he then has to fight that second control order, again through the same proceedings. I should just add that his case was to be heard just after AF in the House of Lords, and so shortly before his hearing his record was revoked. Nevertheless, he spent all of that time having won once ‑‑

Q6 Chairman: How long was he under the control order, in total, from start to finish?

Mr Mcloughlin: I think it was April ’08 and then the second control order was revoked in about June ’09.

Q7 Chairman: So for 15 months or so he was under a control order?

Mr Mcloughlin: Yes, and he was none the wiser as to why he was on a control order, so that sense of frustration, which we mentioned in the opening, continues.

Q8 Chairman: Lord Carlile in his report says he has received no complaints from controlees or their lawyers about the procedures not working satisfactorily. Is that right? Have you not complained?

Ms Peirce: I do not think I have complained to Lord Carlile. I do not share my reasons for that with this Committee. We complain daily in the courts, where we are meant to be complaining; we complain to the Treasury solicitors; we complain to the Home Office; we in every way seek to raise the immediate circumstances.

Mr Mcloughlin: Can I add that in terms of the modification appeals, and I read Lord Carlile’s comments about the lack of complaints to him, Lord Carlile did visit the clients I acted for on control orders, but one of the clients made an application for various conditions of his control orders to be varied, to include attending a college course and having a particular dentist where his wife and children were registered just outside his boundary, and it was not a great distance. But all of these requests were refused, so we lodged an appeal to bring it before the court and the appeal was lodged, I recall, in February of last year and the court heard the case in July. Now, of course, because the procedures are so prolonged in terms of the Special Advocates being involved and hearings, he waited so many months for that hearing to come up to have those issues adjudicated upon that, of course, the college course was done and dusted and he presumably found another dentist in the interim, so the court procedures are not swift and that is a major failing.

Q9 Chairman: Have you made a complaint to Lord Carlile?

Mr Mcloughlin: No. I have not spoken to Lord Carlile, nor has he spoken to me.

Q10 Chairman: I would like to come back to Gareth, because she left her coat tail trailing a bit there. Is the problem here you have no confidence in Lord Carlile as an independent adjudicator? Basically has he been in the job too long?

Ms Peirce: I think at the beginning, a long time ago, when the Anti‑Terrorism Crime and Security Act came into force Lord Carlile was in appointment then, newly in appointment, I think, but there was also a Privy Council Committee in parallel, and this is not a comment on Lord Carlile, but I think it is inappropriate perhaps for one person to have a sustained sole application after the Privy Council has put in a trenchant criticism of the Anti‑Terrorism Crime and Security Act — very thoughtful and they came to SIAC hearings and so on — but then the Government abolished their existence in that supervisory role, so that is said regardless of Lord Carlile as an individual.

Mr Mcloughlin: I am too busy getting on with my daily practice really to worry about who is monitoring it. It does not change the situation. All my clients’ control orders have been revoked, so it is not really for me to make waves about who is reviewing it. I represent my clients to the best of my ability.

Q11 Chairman: The reason I raise it is that one of the concerns I have is that if somebody does such a very important and sensitive job for so long, inevitably they can lose some of their objectivity, because they are dealing with those same issues and the same people in the security services all the time, and I just wondered if such objectivity after such a long period of time may have worn a little thin.

Ms Peirce: I think there is a history of perhaps frank but unfortunate assessments, beginning with those who were interned [from December 2001, when suspects were imprisoned without charge or trial, mainly in Belmarsh, until the Law Lords ruled in December 2004 that this was in contravention of the Human Rights Act], in which Lord Carlile had stated: “I have seen everything that is in the secret evidence, I am completely satisfied the Home Secretary appropriately certificated the individual”, even in cases where SIAC itself came to an opposite view, in cases where ultimately the House of Lords condemned the process twice, where the European Court said, “This was utterly inadequate information”. And now we are into a different regime of control orders and Lord Carlile is again making assessments of the evidence and giving a view as to whether they are justified, and those who are on the receiving end of that simply see that as an extension of an unfairness when they do not know the position.

Q12 Baroness Falkner of Margravine: What I would like to hear from you is, leaving aside the person Lord Carlile, whether you think that there is a danger, in areas where public information is not available, that any individual who does that job might tend to “go native” after a period of time? In other sensitive areas of life you have term limits. Do you think that a term limit would be a good idea in terms of an independent reviewer? That somebody coming every few years fresh to the role with the accumulation of new findings behind them might be more beneficial in a role than someone who has been doing it for quite long?

Ms Peirce: One of the particular vices here is the secret nature of the evidence; the second is the arbitrariness of the decision, and the third is that, to the rest of us and to the person involved, it seems like a sledgehammer to crack a nut. Simply because we represent individuals to the best of our ability does not mean that we are necessarily utterly naive about what is alleged, and we can see clearly in case after case it is inappropriate, but Lord Carlile gives a further veneer to the Government’s — in our view — exercise of arbitrary measures.

Q13 Baroness Falkner of Margravine: Can we refer to him as the “independent reviewer” rather than in person? Would any independent reviewer fall into that trap, do you think?

Ms Peirce: I think it has become more significant. There was always an independent reviewer of terrorism legislation. It was Lord Lloyd and I have forgotten who his predecessor was, and they were very much looking in a much more restricted way at the ways in which the legislation itself was working. This has become far more significant. This is effectively social control of mechanisms that appear to us incredibly petty on a daily basis, petty interferences that seem to have nothing to do with national security, whether a person comes to our office and they walk on the right side of the street to get there or not, and our work is dealing with these restrictions that seem inappropriate. It has to be a wider spread of personnel reviewing it, I think. The ability to have a body that is independent, maybe bringing in psychiatrists or social workers who have an extended understanding of social control.

Q14 Earl of Onslow: Having read your essay in the London Book Review, I must admit I came out of it feeling faintly sick about some of the things you told me about. I get the impression from what you just said that what is happening is that a game of cat and mouse is being played, and if somebody wins a victory it is not even pyrrhic. It goes into the damage done and, I thought very accurately, the folklore. I also got the impression that you are saying that Lord Carlile possibly clothes the nakedness of government. I am interested that you told me — which I did not know and possibly should have done — that Lord Lloyd of Berwick was the previous reviewer, and I trust Lord Lloyd of Berwick with my right arm, because he understands the grandeur of the liberty of the subject, which is something which appeals to me. I was quite shocked by Lord Carlile voting for 42 days, for instance —

Baroness Falkner of Margravine: I do not think he voted. He spoke for, but did not vote.

Q15 Earl of Onslow: The question I am going to ask — and I have almost answered it myself — is this. In practice, have any of the court decisions upholding controlees’ arguments helped to make the process fairer from the controlees’ point of view?

Ms Peirce: In theory, the requirement that there be an irreducible minimum of information is, of course, important, but even so you are left with a very impoverished procedure for such a restriction on a person’s life which consumes and takes over, and therefore the victories in the courts are on procedural issues — critically important — not on the impact. In fact, however strong the arguments and the evidence that one has that this is destroying someone, he is going to kill himself, his life is in danger, those arguments do not win in the courts as being disproportionate to the measures and the reasons given for them. So in that sense very little is felt by the person on the receiving end.

Q16 Earl of Onslow: I think I read in these papers about somebody who is deprived of money where even the children had to account for the price and cost of an apple. Was that in here?

Ms Peirce: Yes, but that is a different form of legislation. It is the assets freezing legislation.

Chairman: We are not dealing with that today.

Q17 Earl of Onslow: I am sorry. The reason I brought it up was it struck me as being a pretty repellent way of behaving.

Ms Peirce: It is pretty repellent. The Supreme Court struck it down a couple of days ago but I understand new legislation is being rushed forward.

Q18 Earl of Onslow: To re‑introduce it?

Ms Peirce: I believe so.

Q19 Earl of Onslow: What difference has the House of Lords decision in AF made in practice?

Ms Peirce: In all cases in which it applied, the arguments are still going on in court in different ways. Some control orders have been revoked; some have been quashed. The Home Office says quashing should not apply because that has a completely retrospective effect, which means they were always unlawful, so there is still further argument. Some of those people are still under control orders because the Home Office has sought a different basis on which to impose them.

Q20 Earl of Onslow: So you are back to the cat and mouse game again?

Ms Peirce: We are entirely in the same game.

Mr Mcloughlin: All of the control orders on the three clients that I had have now been revoked; one last month which was the last one, so in that sense, for my part, it has had an impact. Whether the Home Office will sit in front of the Committee and say it was because of AF that they revoked them, or some other exit strategy that they were always planning towards, I do not know.

Q21 Earl of Onslow: Is the system of control orders sustainable following the decision of the House of Lords in AF? Is the whole system of control orders on its last legs, or should it be?

Ms Peirce: It was abusive legislation stampeded through Parliament in a rush in February/March 2005 when internment came to an end. It was deployed for that bunch of foreign nationals only. It has been subject to sustained intellectual attack primarily on procedural grounds and, yes, it is on the rocks, but the Home Office clings to the wreckage and it will construct some other vessel out of it, or it will attempt to.

Q22 Chairman: That begs this question. You said earlier on that you are not naïve, and we may be dealing with some dangerous people, we may not. What is the alternative to control orders? We know we cannot lock them up indefinitely because that was a Belmarsh decision; we know we cannot, if they are foreign nationals, remove them if they are going to face torture and if they are UK nationals we obviously cannot remove them anyway. What is the alternative from a public safety point of view to control orders?

Ms Peirce: The primary weapon, if one calls it that, would simply be the common sense approach to go to a person and say: “We suspect that you are involved in something that might be linked to terrorist activity; we are telling you this is what we suspect; you will appreciate that we are going to be keeping our eye on you; perhaps you would like to talk about it, let’s talk”, and if you have a reasonable suspicion you arrest the person and question them, and the police are entitled to do that. Even if you do not have evidence that you ultimately can use in court, you can detain someone for the purpose of questioning. The interesting aspect of this is almost none of these men has ever been questioned or spoken to, and I believe many of them would welcome it and say: “That is exactly what we would have liked, that someone would have come to us”, and surely, if you are tipped off that you are under suspicion, you will be very careful about it. The other point I perhaps should mention, which has not to the best of my knowledge happened in all the cases at all, is that there is a concern in some cases that it is a kind of coercion. More than one person has reported being told: “You know, you could make all of this go away if you co‑operated and gave information”, and I know specifically and directly from one such encounter on which I was called upon to be involved that it was very much: “We want something, you can give it, and then the control order can go away”, and that is coercive and improper use.

Q23 Chairman: Completely improper, if that is the case. Presumably from what you are saying, then, you would see in the extreme case where you could not prosecute surveillance as being the alternative?

Ms Peirce: Surveillance but simultaneously with informing someone.

Q24 Chairman: Of course, yes. I am assuming that that happened and there were still suspicions after all of that. Would surveillance be an alternative in your view?

Ms Peirce: Yes. In fact, surveillance, to be blunt, is exercised on these people, and if someone strays outside the boundary or breaches a condition, the term has been used on arrest: “Gotcha”.

Mr Mcloughlin: In paragraph 51 of Lord Carlile’s report he says that control orders are a targeted tool of last resort used to plug what is perceived to be a gap in the absence of viable alternatives. For my part that is a political illusion because there is no hiatus between guilty and innocent, and that is where we, as lawyers, come from. But, as I say, I am an immigration lawyer and Gareth is much more experienced in criminal law than me, so surveillance is the answer in my view, and I note from the Secretary of State’s memo in the final paragraph, paragraph 85, that the cost issues are set out, and it says that the control order regime has cost £10.8 million to administer, with legal costs associated with that process of over £8 million. If you cut out the lawyers then the spend is £3 million on whatever it is that they do, and surely if that money can be spent, or I suspect less money can be spent, on surveillance, then, as Gareth says, people know they are under surveillance, and it has the same effect and does not create this political problem and imposition. Many people are concerned about the whole regime. I penned some figures, and I am not an accountant, but if you have 12 control orders outstanding and you have three officers or people on 8‑hour shifts monitoring these people full‑time, just following them round like a lost dog, then you need 36 staff and even if you pay them £50,000 a year, which I am sure will raise an eyebrow or two, that is around £2 million a year, so if you have two people following them it will be around £4 million, and obviously £3 million is the spend at the moment excluding legal costs. I do not know if those figures mean anything at all, but the point is that huge amounts of money at the time are being thrown at the legal issues, and just under 50 control orders have been made with great political debate on these issues, and I think that it is a hammer to crack a nut, and there are other ways. Can I just say that the Secretary of State in his conclusion, paragraph 85, said that surveillance would be considerably more expensive, but he does not give any figures or explain how or why that might be. There are many things I do not know about in that arena, of course, but that information could at least inform the Committee as to whether surveillance is a possible alternative.

Q25 Chairman: You are ahead of me, because that was the next point I was going to put to you and, in fact, I raised this with the Prime Minister yesterday in the Liaison Committee, suggesting that the amount spent on lawyers could be better spent on police officers.

Mr Mcloughlin: Absolutely.

Q26 Chairman: And, of course, that £8 million you refer to is just the cost to the Home Office of defending the cases brought, where the meter is still running.

Mr Mcloughlin: In that case then there are the Home Office costs. Then there are all the legal aid costs involved and the court costs, which must be significant, with all of the judicial challenges through the administrative court, the Court of Appeal and the Supreme Court, so the spend must be huge and maybe the Committee would be interested to find out what the overall spend is.

Q27 Chairman: We have been trying to.

Mr Mcloughlin: Good luck.

Q28 Chairman: We have not got the answers yet, but we have been trying to find out. Can I go back to reviewing the material? Did the Home Secretary carry out a thorough review of all material relied on for the existing control orders to ascertain whether they needed to have further disclosure after the AF case?

Mr Mcloughlin: You are asking if the Secretary of State’s response deals with everything?

Q29 Chairman: Yes.

Mr Mcloughlin: For my part it says what I expected it to say. One thing I do take issue with is the reliance on the fact that there is rigorous judicial scrutiny of the control order regime through the challenges. That is, I am afraid, misleading to the lay reader perhaps, because as a lawyer representing people in these proceedings you have got one arm tied behind your back, and special advocates, whom you will hear from later, in my view have two arms tied behind their backs. Although the court can do everything within their remit it does not mean objectively that the scrutiny is rigorous, because the whole case is premised on evidence we do not see and we cannot meet.

Q30 Chairman: Are you getting anything more disclosed in practice?

Ms Peirce: No.

Mr Mcloughlin: I will be corrected, but I do not think I ever have had.

Q31 Chairman: Gareth has given us a very clear answer to that, unqualified.

Mr Mcloughlin: The special advocates will correct me if I am wrong, but I do not recall getting anything of any substance through the procedures which allow the special advocates to assess the material and try and argue that X, Y and Z should be made available to the open lawyers, as we are now called. We used to be called lawyers; now we are called open lawyers, and closed lawyers behind us. Nothing of any substance has come from that process and, whilst they will do their best, the special advocates, it is meaningless.

Q32 Chairman: It is probably a better question to put to them. I think we have finished our questions. Is there anything you want to add to anything you have said to us?

Ms Peirce: No, thank you.

Mr Mcloughlin: No, thank you.

Earl of Onslow: Again, going back to your book and article, I was rather struck by the saying of the prophet Mohammed, and I wrote it down: “Fight the unbelievers with your wealth, yourselves and your tongues”. Can you tell me what is the difference between that and the Christian hymn, “Fight the Good Fight with All Thy Might?”

Chairman: I do not think that is a question for the witnesses.

Earl of Onslow: It is. If people are attacking people for saying that, you should attack Christians for saying exactly the same thing.

Chairman: I think that is a debating point, not one for the witnesses. Thank you very much.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010).

A full house for Amnesty screening of “Outside the Law: Stories from Guantánamo” – plus more new tour dates added

Outside the Law: Stories from GuantanamoIt was a full house yesterday evening at Amnesty International’s Human Rights Action Centre in London, for a screening of “Outside the Law: Stories from Guantánamo,” directed by Polly Nash and myself. I’m glad to report that the film was very well received, and was followed by an excellent Q&A session with myself and former prisoner Omar Deghayes, chaired by Widney Brown, the Senior Director of International Law and Policy at the International Secretariat.

Widney read out a statement by Moazzam Begg, reproduced here, in which, as I explained yesterday, Moazzam described why, following a lamentable campaign of vilification directed at Amnesty’s relationship with him and with Cageprisoners (the organization of which he is director), he had decided not to take part in the Q&A session following the screening. He explained that he was only doing so to ensure that the focus of the evening was “not about my personal beliefs or Amnesty’s internal issues but [so] that the lives of men who have suffered human rights violations for so many years, as discussed in ‘Outside the Law,’ [were] not overshadowed.”

In the event, none of Moazzam’s detractors turned up, and Omar and I were able to focus on the important questions: whether any government official anywhere will ever be held accountable for the crimes committed in the “War on Terror”; how to work towards securing the release of Shaker Aamer in the UK; and why the British government should also accept other cleared prisoners, including Ahmed Belbacha, an Algerian (cleared for release since 2007) who lived in the UK for several years, and is terrified of returning to his homeland, and, following the example of other countries in Europe, others who have no connection to the UK. Given that Belgium, France, Hungary, Ireland, Latvia, Portugal, Slovakia, Spain and Switzerland have all given (or have promised to give) new homes to prisoners who had no prior connection with the countries — as part of a pan-European effort to help President Obama to close Guantánamo — both Omar and I feel that it is hypocritical of the British government to claim that it has done its fair share — accepting the return of British nationals and residents — when it has done nothing beyond the bare minimum that was expected.

On accountability, I spoke about the promising Court of Appeal ruling in Binyam Mohamed’s case last week, which I contrasted with the lamentable state of affairs in the US right now, and Omar spoke about the work of the Guantánamo Justice Centre (for whom he is the Legal Director), which not only aims to provide help for released prisoners who have no financial support, but is also involved in a number of court cases in the US and Spain, seeking to bring senior officials — and lawyers — in the Bush administration to justice.

The campaign to bring Shaker Aamer home not only focused on Amnesty International’s petition, available here, which everyone was encouraged to sign, but also on a lively intervention by a member of the Save Shaker Aamer Campaign, based in Shaker’s home borough of Wandsworth, who encouraged the audience to demand action from foreign secretary David Miliband at a meeting he is attending on Friday (February 19) at 5.30 pm at St Paul’s Church, Hammersmith Broadway, London W6.

My thanks to Amnesty — and, especially, to AIUK Director Kate Allen, Widney Brown, Sara MacNeice and Alison Willis — for hosting the first date of the UK tour of “Outside the Law: Stories from Guantánamo.” Over the next few weeks there will be further screenings in London (at QMUL on Tuesday February 23, at the NFT on Saturday February 27, in a major event organized by the BFI, and at LSE on Monday March 1) and a screening at a human rights film festival at Oxford Brookes University (Friday March 5), followed by screenings in Bradford, Norwich, Sheffield, London (SOAS), Canterbury, Dundee, Aberdeen, Edinburgh, Glasgow, Nottingham and Colchester. The full itinerary can be found here, and will be updated as new dates are added.

I’m delighted to report that, in the last 24 hours, two more events have been confirmed — at Roehampton University on Thursday March 4, and at UCL on Wednesday March 17, where Omar Deghayes and I will be joined for a post-screening Q&A by Philippe Sands, Professor of International Law at UCL, and the author of Torture Team. We also now have a confirmed venue for the screening in Edinburgh on Wednesday March 24.

About the film

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington, telling the story of Guantánamo (and including sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of Shaker Aamer, Binyam Mohamed and Omar Deghayes, “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

Take action for Shaker Aamer

Shaker Aamer and two of his childrenThroughout the tour, Omar, Andy, Moazzam and Polly (and other speakers) will be focusing on the plight of Shaker Aamer, the only one of the film’s main subjects who is still held in Guantánamo, despite being cleared for release in 2007, and despite the British government asking for him to be returned to the UK in August 2007.

Born in Saudi Arabia, Shaker Aamer moved to the UK in 1994, and was a legal British resident at the time of his capture, after he had traveled to Afghanistan with Moazzam Begg (and their families) to establish a girls’ school and some well-digging projects. He has a British wife and four British children (although he has never seen his youngest child).

As the foremost advocate of the prisoners’ rights in Guantánamo, Shaker’s influence upset the US authorities to such an extent that those pressing for his return fear that the US government wants to return him to Saudi Arabia, the country of his birth, where he will not be at liberty to tell his story, and recent revelations indicate that, despite claims that it has been doing all in its power to secure his release, the British government may also share this view.

In December 2009, it emerged in a court case in the UK that British agents witnessed his abuse while he was held in US custody in Afghanistan, and in January 2010, for Harper’s Magazine, law professor Scott Horton reported that he was tortured in Guantánamo on the same night, in June 2006, that three other men appear to have been killed by representatives of an unknown US agency, and that a cover-up then took place, which successfully passed the deaths off as suicides.

At the screenings, the speakers will discuss what steps we can all take to put pressure on the British government to demand the return of Shaker Aamer to the UK, to be reunited with his family. To get involved now, please visit this Amnesty International action page, to find details of how you can write to David Miliband and Gordon Brown, asking them to demand Shaker’s return. Please also visit this page for a video of Shaker’s daughter Johina handing in a letter to Gordon Brown at 10 Downing Street on January 11, 2010.

Recent feedback

“The film was great — not because I was in it, but because it told the legal and human story of Guantánamo more clearly than anything I have seen.”
Tom Wilner, US attorney who represented the Guantánamo prisoners before the US Supreme Court

“The film was fantastic! It has the unique ability of humanizing those who were detained at Guantánamo like no other I have seen.”
Sari Gelzer, Truthout

“Engaging and moving, and personal. The first [film] to really take you through the lives of the men from their own eyes.”
Debra Sweet, The World Can’t Wait

“I am part of a community of folks from the US who attempted to visit the Guantánamo prison in December 2005, and ended up fasting for a number of days outside the gates. We went then, and we continue our work now, because we heard the cries for justice from within the prison walls. As we gathered tonight as a community, we watched “Outside the Law,” and by the end, we all sat silent, many with tears in our eyes and on our faces. I have so much I’d like to say, but for now I wanted to write a quick note to say how grateful we are that you are out, and that you are speaking out with such profound humanity. I am only sorry what we can do is so little, and that so many remain in the prison.”
Matt Daloisio, Witness Against Torture

For further information, interviews, or to inquire about broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo,” please contact Polly Nash or Andy Worthington. For inquiries about screenings, please also feel free to contact Maryam Hassan.

“Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009), and copies of the DVD are now available. As featured on Democracy Now!, ABC News and Truthout. See here for videos of the Q&A session (with Moazzam Begg, Omar Deghayes, Andy Worthington and Polly Nash) that followed the launch of the film in London on October 21, 2009.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, and, if you appreciate my work, feel free to make a donation.

Sunday Times misrepresents views of Amnesty’s Sam Zarifi

Moazzam BeggAs part of the Times’ and Sunday Times’ ongoing witch-hunt of former Guantánamo prisoner Moazzam Begg and Cageprisoners (the organization of which he is the director), Margarette Driscoll wrote an uncritical article on Sunday about Gita Sahgal, the head of Amnesty’s Gender Unit, who started the ball rolling by badmouthing her employer to the Sunday Times last weekend. In the article, Sahgal stated that “She fears for her own and her family’s safety,” and, as the blogger Earwicga noted after it was published, this follows on from another recent scaremongering claim made by Sahgal, when she stated in a radio interview, “I feel profoundly unsafe, I have to say, talking to Asim Qureshi [of Cageprisoners] and Moazzam Begg, but I’m more than willing to meet them.”

As Sahgal has the support of every racist, right-wing bully boy in the country right now (including those laughably disguised as the “decent left”), I find her comments deeply insulting, especially when compared to the very genuine fear that Moazzam Begg now has of being attacked as a result of Sahgal’s dangerous and deluded criticism of him last weekend. As Earwicga also noted in her post, “Playing the victim card doesn’t wash, Sahgal, when you are actively smearing an actual victim; in fact it is disgusting.”

Unlike Sahgal, Moazzam was not only imprisoned and abused by the Bush administration for over three years; he also, like every ex-prisoner, carries the taint of Guantánamo with him for the rest of his life. Despite being released without charge or trial, Moazzam is only too aware that, in the propaganda campaign mounted by senior Bush officials, and taken up enthusiastically by swathes of the population in other countries, including the UK, he is constantly at risk of being undermined by unprincipled opponents, and conscious that being tarred as an “extremist” may very well lead to threats of violence against him.

In the five years since his release, Moazzam has campaigned relentlessly to expose the crimes of the “War on Terror” through reason and reconciliation, but, sadly, he can always be attacked by those who prefer to believe that, although he was held in conditions that break with every international law and treaty, he deserved it, because, in the “War on Terror,” no mistakes were made, and everyone seized was a terrorist or a terrorist sympathizer.

My work for the last four years has been a sustained attempt to expose the lies and propaganda behind these claims — as well as an attempt to resist the obvious perils of an alarming tendency towards Islamophobia — and those who have any interest in questioning whether it is legitimate to torture and arbitrarily detain people who were largely rounded up by the United States’ allies in Afghanistan and Pakistan (and not by US forces “on the battlefield”), and who were often paid handsomely for doing so, might want to read my book The Guantánamo Files to find out more, to watch the film I co-directed with Polly Nash, “Outside the Law: Stories from Guantánamo” (UK tour dates here), or, at least, to read this article I wrote last year.

Also at the weekend, the Sunday Times attempted to further undermine Amnesty International, allowing Richard Kerbaj, who wrote the original article about Gita Sahgal, to write another article, entitled, “Second Amnesty chief attacks Islamist links,” in which he claimed, based on an internal email that was leaked to him (by who, one has to ask?), that Sam Zarifi, Amnesty International’s Asia-Pacific Director, had “urged the charity to admit it made a ‘mistake’ by failing publicly to oppose the views of a former terror suspect.”

Sam Zarifi responded immediately, sending the following letter to the Sunday Times, in which he pointed out that — to put it mildly — Kerbaj “mischaracterizes my views”:

Letter to the Sunday Times
From Sam Zarifi, Amnesty International’s Asia-Pacific Director

Dear Sir,

Your recent article (“Second Amnesty chief attacks Islamist links”, 14 February) mischaracterizes my views.

I have been a part of the internal AI debate surrounding the issue of AI’s collaboration with various groups as part of its campaign to close down Guantánamo. My opinions have been heard, considered, and where appropriate, implemented.

I do not oppose our current initiative working with Moazzam Begg in the recent European tour seeking to convince European states to receive more of the Guantánamo detainees who cannot be repatriated because of the risk of further human rights abuses.

As I told my programme staff in the internal email leaked to your paper, my concern has been that AI’s campaigning has not been sufficiently clear that when we defend somebody’s right to be free from torture or unlawful detention, we do not necessarily embrace their views totally.

This raises the risk of creating a perception, particularly in South Asia, that AI is somehow pro-Taleban or anti-women, playing into the rhetoric often used against us by governments and groups in the region that wish to deflect our criticism. But any suggestion that our work with Moazzam Begg or Cageprisoners has weakened our condemnation of abuses by the Taleban or other similarly-minded groups does not withstand scrutiny.

I believe that it was wrong to take this debate into the public in the manner and at the time done. And I fully agree with the measures AI has taken in response to the decision to publicize this debate now and in this manner.

Sam Zarifi
Director, Asia-Pacific Programme

However, as so often with smears, misinformation and propaganda peddled by the mainstream media, the damage has already been done. Sam Zarifi has had his words twisted, while Richard Kernaj suffers no reprimand, and, presumably, will pen another poisonous piece of propaganda as soon as he can find an opportunity.

What concerns me, in particular, is that someone in Amnesty leaked Zarifi’s internal email to the Sunday Times, a fact that only reinforces suspicions that a hidden agenda is at work, and that unknown parties seized on Gita Sahgal to stir up hostility towards Moazzam and Amnesty just when they were embarking on a pan-European mission to persuade other governments to accept cleared prisoners from Guantánamo, who cannot be repatriated because they are at risk of torture in their home countries.

In addition, this story was published in the run-up to the Court of Appeal’s ruling last Wednesday that the British government was obliged to release information demonstrating that senior officials knew US agents had tortured the British resident Binyam Mohamed while he was in Pakistani custody in 2002, which is particularly damaging for the government, especially in light of comments made by Lord Neuberger, the Master of the Rolls, which were suppressed, at the government’s request, from the final ruling.

As I explained in an article last week, Neuberger’s deleted paragraph included assertions that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, which is supposed to be able to scrutinize its activities, and had a “culture of suppression” in its dealings with Miliband and the court.

Given this level of criticism from a senior judge, it doesn’t surprise me that someone in a position of power was anxious to deflect attention from what is really going on; namely, that the British government is complicit in war crimes, but is desperate not to be held accountable.

Are Amnesty and Moazzam Begg being used as a smokescreen? It certainly seems possible.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Binyam Mohamed on Omar Khadr: A Scapegoat for a Failed “War on Terror”

Binyam Mohamed in July 2009Last week, while the UK Court of Appeal was shining a spotlight on the case of Binyam Mohamed, ordering details of his torture by US agents to be revealed to the public, Binyam himself — a British resident, subjected to “extraordinary rendition” and torture, who was released from Guantánamo last February — was thinking about someone else.

Binyam was thinking about Omar Khadr, the Canadian citizen, who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, and who now faces a trial in the much-criticized Military Commission trial system that was ill-advisedly resuscitated and revived by the Obama administration and Congress last summer. I have written extensively about Khadr’s case (and would be delighted if you checked out one of my favorite articles here), and was dismayed when Attorney General Eric Holder announced in November that Omar Khadr would face a trial by Military Commission.

Recently, following a toothless ruling by Canada’s Supreme Court, I spoke about Omar with the progressive radio host Jeff Farias, but I have not, of course, had the opportunity to meet Omar, whereas Binyam Mohamed has. And so, after Binyam got in touch with me to ask if I’d like to reproduce the following article, I was delighted to accept. It was first published on the website of the Guantánamo Justice Centre, an organization founded by ex-prisoners to raise awareness about Guantánamo and to assist other former prisoners to rebuild their lives, and also on Binyam’s own newly established website, The Political Hostage.

Omar Khadr is a scapegoat for a failed “war on terror”
By Binyam Mohamed

Omar Khadr, photographed before his captureI was and continue to be astonished by the fate of Omar Khadr, a 15-year-old child who has grown into a man in an illegal prison. Locked away in neighbouring cages, we spent a lot of time trading torture and abuse stories. We were psychologists treating each other. By listening to each other we beat an exploitative system established to break us and drive us insane.

Commissioning [being put forward for trial by Military Commission] brought peace to us. It meant the end of “enhanced interrogations” (otherwise known to the common man as torture) and offered our only opportunity to break our silence and attempt to refute falsehood with truth. Due to the public nature of the first ten commissions [in 2004-05, before the Supreme Court struck down their first incarnation], we few emerged from the hundreds of forgotten prisoners, our testimony exposing America’s injustices.

I am amazed how US officials, driven by the desire to justify their illegal acts, have turned this Palestinian-Canadian child into a hero in the eyes of the Muslim youths around the world. And I am more amazed at how America keeps hiding exculpatory evidence in his case, claiming secrets of national security. Yet we all know the facts.

There is a contradiction in the “evidence” tortured out of this man, and the facts hidden. I can’t comprehend nor can I write of the torture and abuse suffered by Omar. The scars seen say it all. Those who witness them swell up with tears and are embarrassed at sharing their own experiences of oppression, as the evidence also classified as secret in the interest of national embarrassment shows.

As we sat in the recreation yard in Camp 5, Guantánamo Bay, Omar recounted to me what happened: the one who threw the grenade at the Americans was shot and killed, the American soldier who Omar is accused of killing with a hand grenade died of a gun shot wound, and not of grenade shrapnel as the American government claims. As the American soldiers came in, they shot Omar in the back, and he fell amongst the other people killed. They shot at one man who was still standing, defending himself from the American onslaught. Once the soldiers had killed him, they walked over and stepped on Omar, thinking him to be dead. I have not only seen the bullet holes on his back, but I have touched them.  He has lost his eyesight in one eye and partially in the other, due to the grenade thrown at him by the Americans in the ensuing gunfire.

The American government is guaranteed a conviction in an illegal system they call “military commissions.” And what a great victory it must be for them: America versus a juvenile, imprisoned and tortured for eight long years. Yet the question greater than this is, “where is justice, equality and a fair trial?” I am enraged to hear these baseless allegations against a juvenile for the interests of oppressive politics. Omar could refute all of these charges in a regular court established under the pretext of justice, fairness and equality, but after the recent case against Aafia Siddiqui, convicted without any evidence, we know that justice will not be upheld, as the American government will never admit to its wrongdoing, and will continue to seek to justify these illegal practices.

This child’s case has pushed America to break all laws, go against her constitution, and to violate everything that she preaches.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Moazzam Begg’s dignified explanation of why he is not attending Amnesty’s screening of “Outside the Law: Stories from Guantánamo”

Outside the Law: Stories from GuantanamoThis evening, Amnesty International is screeningOutside the Law: Stories from Guantánamo,” the new documentary, directed by Polly Nash and myself, which tells the story of the Bush administration’s despicable post-9/11 flight from the law through interviews with former prisoners Omar Deghayes and Moazzam Begg, lawyers Clive Stafford Smith and Tom Wilner, and myself. 

The film focuses, in particular, on the stories of Omar (released in December 2007), Binyam Mohamed (released in February 2009), and Shaker Aamer, who is still held. Further information about the rest of the UK tour can be found here.

For this evening’s screening, Omar Deghayes and I were supposed to be joined by Moazzam Begg for a Q&A after the film, but following a mistaken campaign opposing Amnesty International’s relationship with Moazzam and Cageprisoners (the organization of which he is director), Moazzam has decided not to take part, and has issued the following statement, explaining that he is only doing so to ensure that the focus of the evening “is not about my personal beliefs or Amnesty’s internal issues but [so] that the lives of men who have suffered human rights violations for so many years, as discussed in ‘Outside the Law,’ are not overshadowed.”

I fully understand Moazzam’s reasons for not wishing to allow anything to detract from the film’s message, which is perfectly in keeping with the measured and constructive manner in which he has always used his experience to shine a light on the horrors of Guantánamo, and has always sought to promote awareness, and to defuse anger through understanding — something that, above all, thoroughly refutes claims that he is some sort of extremist.

I am, of course, disappointed that it has come to this, and hope that those who have been so swift to vilify Moazzam recently pay close attention to his words, and reflect, in particular, on his statement that he has tried to “develop a nuanced approach to fostering understanding, between communities that are increasingly becoming polarized, through the language of education, understanding, acceptance and reconciliation.”

I also hope that those seeking to detract from the film’s message either stay away, or leave their prejudices at the door, and echo Moazzam’s question about why “this argument is occurring now, especially at a time when revelations are being made that UK intelligence was fully aware that Binyam Mohamed was being abused,” and also at the same time that Moazzam, supported by Amnesty International, was visiting other countries in Europe “asking governments to give sanctuary to cleared Guantánamo prisoners who are unable to return to their homes.”

A statement by Moazzam Begg

Moazzam BeggIt has been my pleasure to have worked closely with Amnesty since my return from Guantánamo on highlighting the cases and campaigning against the human rights abuses that have occurred in the name of fighting terrorism since the outset of the “War on Terror.” The relationship I have with Amnesty goes back to the years when I was incarcerated in US custody and my father was receiving immense moral and practical support from the organisation — something both he and I will never forget.

It is very unfortunate that this relationship is now being severely tested by both internal and external forces that would like nothing better than to see that work damaged, or even terminated. Since my return I have spoken about and written my views more times than I can remember. My goals for doing this have been to expose the reality of detention without trial, torture, cruelty and dehumanisation and, at the same time, develop a nuanced approach to fostering understanding, between communities that are increasingly becoming polarized, through the language of education, understanding, acceptance and reconciliation.

I do not claim to have all the answers to every question on human rights; five years ago I could not even answer if I was going to live or face execution. But, I truly cannot understand why this is all happening now, since nothing that has been said in the media is new at all — no new and sensational revelations, no new controversial comments, at least not by or about me.

I have just returned from a pan-European tour asking governments to give sanctuary to cleared Guantánamo prisoners who are unable to return to their homes, so I find it odd that this argument is occurring now, especially at a time when revelations are being made that UK intelligence was fully aware that Binyam Mohamed was being abused. This is something I have said about my own case since my return too — and, I believe, the same will also be revealed about Shaker Aamer, on whose behalf I hope most people tonight will campaign.

I apologise for not attending this evening’s event but I have decided to abstain from taking part only so that the focus is not about my personal beliefs or Amnesty’s internal issues but [so] that the lives of men who have suffered human rights violations for so many years, as discussed in “Outside the Law,” are not overshadowed.

If people are interested in knowing my views regarding all the controversies discussed in the national press last week they can be seen on Cageprisoners.

I wish this evening’s event and Amnesty UK and Andy Worthington every success.

Moazzam Begg

Note: Moazzam’s statement will be read out at the screening tonight. Although I was provided with a copy, I had no intention of publishing it in advance, but have done so because Sunny Hundal published it on Pickled Politics, stating, “I managed to get a statement by Moazzam Begg on why he pulled out of the Amnesty event,” and adding, “I’ll have more on this tomorrow.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, and, if you appreciate my work, feel free to make a donation.

“Outside the Law: Stories from Guantánamo”: UK tour starts Feb. 16; new dates added

Outside the Law: Stories from GuantanamoThroughout 2010, former Guantánamo prisoner Omar Deghayes and Andy Worthington, journalist and author of The Guantánamo Files, will be touring the UK, showing the new Guantánamo documentary “Outside the Law: Stories from Guantánamo,” and attending post-screening Q&A sessions. On some dates, Omar, who is now the legal director of the Guantánamo Justice Centre, and Andy, who co-directed the film, will be joined by former prisoner Moazzam Begg (the director of Cageprisoners) and Polly Nash, the film’s co-director, representing Spectacle, the production company, and, occasionally, other guests.

Please visit this page (or, better still, bookmark it), which contains full details of the tour, and which will be updated as new dates are added.

The tour starts today — Tuesday February 16 — with a screening at Amnesty International’s Human Rights Action Centre, 17-25 New Inn Yard, London, EC2. The screening starts at 6.30 pm, and is followed by a Q&A session with Omar Deghayes and Andy Worthington, moderated by Sara MacNeice, Amnesty’s Campaign Manager for Terrorism, Security and Human Rights. The event is fully booked, but please email me asap if you haven’t reserved a place, and would like to attend.

Two weeks ago, when I first announced the tour, I provided information about other screenings in London (including a major screening at the NFT on Saturday February 27), and also in Oxford, Bradford, Canterbury, Dundee, Aberdeen and Colchester. I’m delighted to report that five new dates have now been added — in Norwich, Sheffield, Edinburgh, Glasgow and Nottingham — and that others will be confirmed in the coming weeks. I’ll announce these in future posts, but do please keep an eye on the main page, and feel free to publicize the screenings nationally and regionally.

About the film

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington, telling the story of Guantánamo (and including sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of Shaker Aamer, Binyam Mohamed and Omar Deghayes, “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

Take action for Shaker Aamer

Shaker Aamer and two of his childrenThroughout the tour, Omar, Andy, Moazzam and Polly (and other speakers) will be focusing on the plight of Shaker Aamer, the only one of the film’s main subjects who is still held in Guantánamo, despite being cleared for release in 2007, and despite the British government asking for him to be returned to the UK in August 2007.

Born in Saudi Arabia, Shaker Aamer moved to the UK in 1994, and was a legal British resident at the time of his capture, after he had traveled to Afghanistan with Moazzam Begg (and their families) to establish a girls’ school and some well-digging projects. He has a British wife and four British children (although he has never seen his youngest child).

As the foremost advocate of the prisoners’ rights in Guantánamo, Shaker’s influence upset the US authorities to such an extent that those pressing for his return fear that the US government wants to return him to Saudi Arabia, the country of his birth, where he will not be at liberty to tell his story, and recent revelations indicate that, despite claims that it has been doing all in its power to secure his release, the British government may also share this view.

In December 2009, it emerged in a court case in the UK that British agents witnessed his abuse while he was held in US custody in Afghanistan, and in January 2010, for Harper’s Magazine, law professor Scott Horton reported that he was tortured in Guantánamo on the same night, in June 2006, that three other men appear to have been killed by representatives of an unknown US agency, and that a cover-up then took place, which successfully passed the deaths off as suicides.

At the screenings, the speakers will discuss what steps we can all take to put pressure on the British government to demand the return of Shaker Aamer to the UK, to be reunited with his family. To get involved now, please visit this Amnesty International action page, to find details of how you can write to David Miliband and Gordon Brown, asking them to demand Shaker’s return. Please also visit this page for a video of Shaker’s daughter Johina handing in a letter to Gordon Brown at 10 Downing Street on January 11, 2010.

Recent feedback

“The film was great — not because I was in it, but because it told the legal and human story of Guantánamo more clearly than anything I have seen.”
Tom Wilner, US attorney who represented the Guantánamo prisoners before the US Supreme Court

“The film was fantastic! It has the unique ability of humanizing those who were detained at Guantánamo like no other I have seen.”
Sari Gelzer, Truthout

“Engaging and moving, and personal. The first [film] to really take you through the lives of the men from their own eyes.”
Debra Sweet, The World Can’t Wait

“I am part of a community of folks from the US who attempted to visit the Guantánamo prison in December 2005, and ended up fasting for a number of days outside the gates. We went then, and we continue our work now, because we heard the cries for justice from within the prison walls. As we gathered tonight as a community, we watched “Outside the Law,” and by the end, we all sat silent, many with tears in our eyes and on our faces. I have so much I’d like to say, but for now I wanted to write a quick note to say how grateful we are that you are out, and that you are speaking out with such profound humanity. I am only sorry what we can do is so little, and that so many remain in the prison.”
Matt Daloisio, Witness Against Torture

For further information, interviews, or to inquire about broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo,” please contact Polly Nash or Andy Worthington. For inquiries about screenings, please also feel free to contact Maryam Hassan.

“Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009), and copies of the DVD are now available. As featured on Democracy Now!, ABC News and Truthout. See here for videos of the Q&A session (with Moazzam Begg, Omar Deghayes, Andy Worthington and Polly Nash) that followed the launch of the film in London on October 21, 2009.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, and, if you appreciate my work, feel free to make a donation.

Andy Worthington Discusses Torture on BBC1’s “The Big Questions”

Yesterday, I took part in “The Big Questions” with Nicky Campbell on BBC1 (available on iPlayer here for the next week). The bi-weekly discussion show, which tours the country and covers three topics each fortnight, alighted on a Christian school in York on Sunday, and featured around a dozen “experts” on various topics (myself included) and special guests: the poet Benjamin Zephaniah, the journalist Anne Atkins and Huddersfield community leader Kiran Bali.

One of the topics covered — in light of the Court of Appeal’s recent ruling in the case of British resident and torture victim Binyam Mohamed — was, “Is it right to use information obtained through torture?” The other questions were, “Should marriage survive infidelity?” (following on from the John Terry story that has dominated the news) and “Is it time for the worldwide Anglican Church to divide?” and this latter topic — which focused primarily on infighting between various factions of the Anglican communion regarding gay rights and women’s rights — caused the most heated confrontations.

The torture question asked on the show was a refinement of the original question that was pitched to me — “Is torture ever justified?” — but my conclusion is the same. Torture — defined by the UN Convention Against Torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” — is illegal, with no exceptions (see Article 2.2 of the Convention, which stipulates, “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture”). Moreover, those who authorize it, or are complicit in it, must be prosecuted.

Furthermore, the use of torture is morally corrosive, reducing us to the level of those we claim to oppose, has a devastatingly counter-productive effect on the intelligence services’ ability to recruit informers, is dismissed, in the strongest terms possible, by skilled interrogators who regard it with disdain (see the former FBI interrogators quoted here), and, in addition, is essentially useless. Although those subjected to torture may produce worthwhile information, they will also tell any lies necessary to bring the torture to an end, and working out what is true and what is not therefore involves countless wild goose chases, diverting attention from genuine threats (as happened in the US in 2002 and 2003, following the torture of two particular “high-value detainees,” Abu Zubaydah and Khalid Sheikh Mohammed).

Perhaps even more significantly, relying on information extracted through torture also leads to the seizure of other people based on material which is almost entirely unreliable, with potentially devastating results for those named, who end up getting a knock on the door in the middle of the night, often, for example, based on little more than the fact that they attended the same mosque as a “terror suspect” (a process I call, “guilt by mosque”).

In the specific context of the question on Nicky Campbell’s show, there is, it is claimed, a grey area concerning information provided to Western intelligence agencies by regimes that are known to practice torture — or, indeed, that use it systematically (Pakistan, Uzbekistan, and various north African regimes including Algeria, Egypt and Libya, to name but a few). The British government denies collusion in torture, despite mounting evidence to the contrary in the case of Binyam Mohamed, and in the cases of several British citizens seized and interrogated in Pakistan, and other countries — with the active collusion of the British intelligence services — where torture is commonplace.

This terrible story is gradually being exposed, particularly in the British courts, but when it comes to using information obtained through torture, the government open admits that it does not rule out using it. In its 2008 report (PDF, p. 16), the Foreign and Commonwealth Office stated, “The use of intelligence possibly derived through torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it,” but added, “Where there is intelligence that bears on threats to life, we cannot reject it out of hand.”

To some people, this argument appears to be acceptable, but it still involves dealing with the troubling and almost certainly insurmountable problems which I ran through above; namely, that, when the countries in question use torture on a regular or even systematic basis, the information is almost entirely unreliable, and therefore should not be used. Moreover, as the torture apologists also forget, while they try to brush away the UN Convention Against Torture and allied treaties and agreements, a case can be made that knowingly making use of information obtained through torture may in itself involve complicity in war crimes.

On “The Big Questions,” I had the opportunity to address many of these questions, along with Steve Hewitt, Senior Lecturer in American and Canadian Studies at the University of Birmingham’s College of Arts and Law, in the face of largely specious arguments made by apologists for torture, especially Jonathan Foreman, of Standpoint magazine, who raised the spectral example of the “ticking time bomb” scenario, so favored by the writers of Fox’s 24, which has no basis in reality. Foreman also attempted to claim that prolonged sleep deprivation is not torture, and flippantly compared it to the sleepless nights endured by the parents of young children, even though numerous sources, including the US State Department and the US military’s Army Field Manual, confirm that it is torture.

Foreman also attempted to claim that no torture had taken place at Guantánamo, and on this latter point, I was particularly pleased to have been able to explain that, in fact, Susan Crawford, a protégée of former Vice President Dick Cheney and the senior Pentagon official responsible for overseeing the trials at Guantánamo (the Military Commissions), refused to press charges against one particular prisoner at Guantánamo, Mohammed al-Qahtani, because, as she explained in January 2009, “We tortured Qahtani. His treatment met the legal definition of torture.” Had I had the opportunity, I would also have explained that the types of “enhanced interrogation techniques” used on al-Qahtani were, to varying degrees, also applied to over a hundred other prisoners at Guantánamo.

In conclusion, I thought that, in general, the debate came down squarely against the use of torture — as it should, of course — and although no firm conclusion was reached regarding information obtained from regimes that systematically torture, was pleased that both the topic — and the profound problems associated with it — were aired in a mainstream public forum. I remain disturbed, however, that the long struggle to eradicate the evils of torture should be so lightly dismissed by armchair apologists for its use, who, in closing, might want to reflect not on what torture does to its victims, but on what it does to those who practice it.

This is a quote from New Yorker journalist Jane Mayer, in an article on the CIA’s “black sites” that was published in August 2007. In it, a former CIA official described what happened to one of Khalid Sheikh Mohamed’s interrogators:

During interrogations, the former agency official said, officers worked in teams, watching each other behind two-way mirrors. Even with this group support, the friend said, Mohammed’s interrogator “has horrible nightmares.” He went on, “When you cross over that line of darkness, it’s hard to come back. You lose your soul. You can do your best to justify it, but it’s well outside the norm. You can’t go to that dark a place without it changing you.” He said of his friend, “He’s a good guy. It really haunts him. You are inflicting something really evil and horrible on somebody.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK

Binyam Mohamed in July 2009, after his release from GuantanamoThree senior UK judges on Wednesday ordered the British government to publicly disclose previously classified information that reveals how Binyam Mohamed, a British resident, was tortured by the CIA while in Pakistani custody in April and May 2002.

In one short session, the Court of Appeal brought an end to a transatlantic game of cat and mouse that for the last year and a half has prevented two High Court judges from making public a seven-paragraph summary of an intelligence briefing, supplied by the US intelligence services to their British counterparts, which provided information about Mohamed’s treatment after his capture in Pakistan in April 2002.

Disclosure of the summary, which was written by the High Court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, had been opposed by the British foreign secretary, David Miliband, since August 2008, when the judges delivered a stern rebuke to the British government, ruling that, “by seeking to interview BM [Binyam Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.” However, Miliband argued that releasing any information publicly would damage the valuable intelligence sharing relationship between the UK and the US, and the judges, with some reluctance, accepted his claims.

Nevertheless, the judges ordered 42 documents in the possession of the British government to be released to Mohamed’s lawyers, on the basis that they were vital to his defense in a planned trial by Military Commission, in which he might face the death penalty. In the months that followed, further wrangling over the disclosure of these documents was transferred to the US courts, where the Justice Department tried in vain to keep them away from Mohamed’s legal representatives.

By November 2008, however, these last-ditch attempts had failed, and, as a result, the central allegation against Mohamed — that he was involved in a “dirty bomb” plot (noticeably, one that never existed) — was dropped by the Justice Department, his planned trial by Military Commission was also dropped, and on February 23, 2009, he was flown back to the UK as a free man.

The manner in which Mohamed’s case was fast-tracked to the top of the pile of cases being reviewed by President Obama’s interagency Guantánamo Review Task Force strongly suggests that both the US and UK governments hoped that releasing Mohamed would seal the lid on further embarrassing disclosures about his torture — not only in Pakistan, but also in Morocco, where he was sent by the CIA for 18 months, and in the CIA’s own “Dark Prison” near Kabul.

However, instead of backing down, the High Court judges refused to let go of the case, arguing that, although it was appropriate for the contents of the 42 documents to remain secret, it was in the interests of “open justice” for their own summary of those documents to be made available to the public.

David Miliband disagreed, maintaining, as he had in August 2008, that releasing the summary would threaten the intelligence-sharing relationship between the US and the UK, with dire consequences for national security, even though the judges maintained that their summary contained “nothing secret or of an intelligence nature,” as it merely comprised “admissions by officials of the United States Government as to BM’s [Mohamed’s] treatment by them.”

Throughout 2009, the case rumbled on, as the judges maintained pressure on the government, and in November, the most revealing information to date was disclosed, when two previously redacted paragraphs in an earlier ruling were reinstated. These, as I noted at the time, were extremely significant, because they revealed that the judges had referred to the memos released by the Obama administration last April, written by lawyers in the Justice Department’s Office of Legal Counsel in 2002 and 2005, which purported to redefine torture and approved the use of banned techniques by the CIA.

The judges had also noted that “the techniques described were those employed against [Abu] Zubaydah,” the supposed “high-value detainee,” captured in Pakistan on March 28, 2002, who was, officially, the first prisoner to be subjected to ten “enhanced interrogation techniques,” which included physical violence, stress positions, sleep deprivation, and waterboarding.

The Court of Appeal judges order the release of the torture summary

Sir Igor JudgeOn Wednesday, after 18 months of obstruction on the part of the government, the judges in the Court of Appeal — Sir Igor Judge, the Lord Chief Justice; Lord Neuberger, the Master of the Rolls; and Sir Anthony May, President of the Queen’s Bench — finally dismissed Miliband’s claims, and, as the Guardian described it, “shattered the convention that the courts should not question claims by the executive relating to national security.”

In the ruling, Sir Igor Judge said that the case raised issues of “fundamental importance,” of “democratic accountability and ultimately the rule of law itself.” He added that the reasons for publishing the summary were “compelling,” because they concerned the involvement of British agents in the “abhorrent practice of torture,” and because the information contained in the summary helped to “vindicate Mr. Mohamed’s assertion that UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of USA authorities.”

Finally accepting defeat, Miliband made the summary available on the website of the Foreign and Commonwealth Office. The seven paragraphs are reproduced below:

It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May [2002] as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM [Binyam Mohamed] had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews.

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS [the British intelligence services] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if it had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972 [in the 1972 torture convention]. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.

As can be seen, the summary describes a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”

The evidence demonstrates that torture began before it was sanctioned by the Justice Department in August 2002

That such tactics were being used by US agents in April 2002, four months before the ten previously banned techniques — including sleep deprivation and waterboarding — were approved by lawyers in the Office of Legal Counsel, should come as no surprise. As I pointed out in an article last April, “CIA Torture Began In Afghanistan 8 Months Before DoJ Approval,” lawyers for Rafiq Alhami, a Tunisian prisoner in Guantánamo, demonstrated in court submissions that the CIA was torturing prisoners in Afghanistan from December 2001.

In a lawsuit, Alhami stated that he was held in three CIA “dark sites,” where “his presence and his existence were unknown to everyone except his United States detainers,” and where, at various times, he was “stripped naked, threatened with dogs, shackled in painful stress positions for hours, punched, kicked and exposed to extremes of heat and cold.” He also stated that his interrogators “sprayed pepper spray on his hemorrhoids, causing extreme pain.”

Nevertheless, Alhami’s statements, which reflect similar statements made by other prisoners held in secret CIA prisons at this time, were largely ignored last April, and it is to be hoped, therefore, that the official confirmation of Binyam Mohamed’s torture in April and May 2002 will put pressure on Attorney General Eric Holder to investigate how it came to pass that prisoners were tortured — or, at least, subjected to cruel, inhuman and degrading treatment — so many months before the OLC provided what senior Bush officials referred to as their “golden shield,” providing a twisted rationale for the torture and abuse that followed in the memos issued on August 1, 2002.

According to a recent article in Newsweek, the conclusions of a long-awaited internal report into the behavior of the OLC lawyers who drafted the “torture memos” — conducted by the Office of Professional Responsibility (OPR) — have been fatally watered down in the report’s final version, so that the primary authors, John Yoo and Jay S. Bybee, are no longer regarded as having “violated their professional obligations as lawyers” when they drafted the memos, and have only been mildly reprimanded for showing “poor judgment.”

Even if this is the case, however, it fails to explain who was responsible for authorizing the infliction of cruel, inhuman and degrading treatment before August 1, 2002, and this is a question that needs to be answered. As Marcy Wheeler explained on Firedoglake:

[The] abuse was inflicted by “an expert interviewer” implementing “a new strategy.” That “expert interviewer” and that “new strategy” almost certainly were associated with [James] Mitchell and [John “Bruce”] Jessen [the psychologist facilitators of a torture program based on reverse-engineering the military’s SERE program, which teaches US personnel to resist torture by subjecting them to banned techniques], who were at that moment pitching using their “new strategy” with Abu Zubaydah. So this is not just proof that the US was engaging in torture before they got their … memo authorizing such torture. But it was proof that they were using Mohamed, in addition to Abu Zubaydah, as guinea pigs to test out that torture.

How Binyam Mohamed’s torture was revealed in a US court

Further disturbing evidence of the use of torture emerged through close scrutiny of a statement issued by David Miliband in the wake of the ruling by the Court of Appeal. Miliband noted that “At the heart of this case was the principle that if a country shares intelligence with another, that country must agree before its intelligence is released,” and that “This ‘control principle’ is essential to the intelligence relationship between Britain and the US.”

With some satisfaction, he added that the government had “fought the case to preserve this principle,” and that “today’s judgment upholds it,” explaining that the court only ordered the release of the summary “because in its view their substance had been put into the public domain by a decision of a US court in another case,” and that “Without that disclosure, it is clear that the court of appeal would have overturned the divisional court’s decision to publish the material.”

Judge Gladys KesslerThis is an accurate assessment, although it glosses over the importance of the material that “had been put into the public domain by a decision of a US court in another case.” The case in question was the successful habeas corpus petition, in November 2009, of an Algerian prisoner in Guantánamo, Farhi Saeed bin Mohammed. In her ruling, made available in December (PDF), Judge Gladys Kessler expressed serious doubts about the reliability of allegations made by other prisoners, as she had in previous cases, and as the judges in general have throughout the habeas process. These doubts have contributing significantly to the 32 out of 41 rulings that have resulted in the judges concluding that the government failed, by a preponderance of evidence, to establish that the prisoners in questions were involved with either al-Qaeda or the Taliban.

In the case of Farhi Saeed bin Mohammed, one of the dubious witnesses identified by Judge Kessler was Binyam Mohamed. As she described it, Mohamed’s statements, placing bin Mohammed at a training camp in Afghanistan,

cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner [bin Mohammed] argues that while Binyam Mohamed was detained in locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit to a host of allegations. When he arrived at Guantánamo Bay, Binyam Mohamed implicated Petitioner in training activities … However, after being released from Guantánamo Bay, he signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantánamo Bay, thereby disavowing the statements he made at Guantánamo Bay about training with Petitioner.

Judge Kessler also made some important points about torture, refuting the government’s claims that Mohamed had made statements voluntarily at Guantánamo, and concluding that the effects of the torture he endured from 2002 to 2004 had not dissipated by the time of the later statements. This is undoubtedly an important precedent for future cases, but with specific reference to Binyam’s court case in the UK, the significance of Judge Kessler’s ruling relates to the government’s refusal — or inability — to challenge the assertions made about Binyam Mohamed’s torture.

In response to bin Mohammed’s claims about Binyam Mohamed’s statements, Judge Kessler noted, “The Government does not challenge Petitioner’s evidence of Binyam Mohamed’s abuse,” and at another point, after running through the whole horrendous story of Mohamed’s abuse in Pakistan, Morocco and the “Dark Prison,” as recounted in statements to his lawyer, Clive Stafford Smith, she noted that “The Government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment.”

Further evidence of a British cover-up

It is somewhat ironic that information that the British government tried so hard to suppress was actually disclosed in greater detail in a judicial ruling in a US court, which made its protestations worthless, but this is not the last piece of shocking evidence to emerge from the Court of Appeal ruling.

Lord NeubergerJust hours after the ruling was announced, the Guardian reported that one of the judges, Lord Neuberger, the Master of the Rolls, had included in the ruling a statement regarding the behavior of the British security services that was so critical that Jonathan Sumption QC, representing the government, had written to the court, warning that the paragraph in question was “likely to receive more public attention than any other parts of the judgments.”

As referred to in Sumption’s letter, which came to light following intervention by lawyers and media organizations including the Guardian, Lord Neuberger’s statements included assertions that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, which is supposed to be able to scrutinize its activities, and had a “culture of suppression” in its dealings with Miliband and the court.

With reference to the MI5 officer known as Witness B, who interrogated Binyam Mohamed in Pakistan in May 2002 (and is now the subject of a police investigation), Neuberger apparently indicated that he did not believe that he was acting alone and that he believed that his conduct was “characteristic of the service as a whole,” and also noted that MI5’s culture of suppression “penetrates the service to such a degree” that, as the Guardian explained, “it undermines any government assurance based upon information that comes from MI5 itself.”

At the government’s request, Lord Neuberger dropped his comments from the final ruling, without advising any of the other parties involved in the case. However, after Sumption’s letter was disclosed, Lord Neuberger conceded that it was “over-hasty” to withdraw it without allowing other voices to be heard, and provided objectors with a deadline of 4 pm on Friday to make representations, to enable him to decide whether to reinstate his judgment.

Throughout this whole tawdry saga, Binyam Mohamed was not present, but it must come as some relief to him, after his long ordeal, to realize that, one year after his release, his torture by US agents in April 2002 will cause questions to be raised regarding the authorization of prolonged sleep deprivation and threats to make him “disappear,” and that the British security services face questions about their entire way of operating, in the wake of the 9/11 attacks, when the UK zealously embraced its role as America’s closest foreign ally.

As published exclusively on Truthout, as “Details of British Resident’s Brutal Torture by CIA Officers Released.” A quote from Marcy Wheeler was added to the original article.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Former Guantánamo Prisoner Binyam Mohamed Speaks (Video) (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009).

Torture in Afghanistan and Guantánamo: Shaker Aamer’s Lawyers Speak

Shaker Aamer and two of his childrenIn December, lawyers for Shaker Aamer, the last British resident in Guantánamo, won an important court case in which judges ordered the British government to release information in its possession regarding claims that MI5 agents were present in the US prison in Kandahar, Afghanistan, when Shaker Aamer was subjected to torture, prior to his transfer to Guantánamo.

Paul Cahalan of the Wandsworth Guardian, covering the borough that Shaker Aamer once called home (and where his British wife and four children live), wrote about this story at the time, and on Thursday he provided important updates, speaking to Shaker’s US lawyer, Brent Mickum and his London-based lawyer, Clive Stafford Smith, director of the legal action charity Reprieve.

Speaking about the recently released files, Brent Mickum told Cahalan that “nothing in those documents has changed my mind” about the torture to which Shaker was subjected in Afghanistan, and the false confessions that he made as a result. In fact, he said, the information “reinforced” Shaker’s claims.

Mickum also made reference to an extraordinary article by the US law professor Scott Horton, published in this month’s Harper’s Magazine, which thoroughly undermines the official narrative regarding the deaths of three prisoners in Guantánamo on June 9, 2006, who reportedly committed suicide. Following up on a report by the Seton Hall Law School, which revealed that the official report was, literally, incredible, and full of glaring omissions and a plethora of contradictions, Horton drew on accounts given by several US military personnel stationed in the guard towers that night, who were able to see into the cell block where the men reportedly hanged themselves, and who all stated that they saw no one hanging, and saw no bodies being moved from the cell block to the clinic, where they were pronounced dead. Instead, one of the men, Staff Sgt. Joe Hickman, reported the movements of a vehicle that traveled from the prison to a secret facility outside the perimeter fence — known to the Guantánamo personnel as “Camp No” — which returned shortly before the men’s deaths were announced.

Shaker Aamer’s role in this story — which appears to involve a chilling and far-reaching cover-up — concerns statements he made to his lawyers, describing how, on the night that the three men died with gags stuffed in their mouths, he too was gagged and beaten so mercilessly that he was lucky to survive.

Brent Mickum told Cahalan that Shaker Aamer was, effectively, being silenced to cover up “wrongdoing,” and referred to the Harper’s article, which, as Cahalan put it, said that “US government officials may have conspired to conceal evidence three Guantánamo detainees could have been murdered during interrogation,” by being suffocated. Cahalan also noted that the Harper’s article indicated that this “may explain why the US is reluctant to release Mr. Aamer, who has claimed he was part-suffocated while being tortured the same evening,” an explanation that I have also proposed.

Mickum also told Cahalan that “he had been denied basic access his client, who, after years of solitary confinement, has failing health,” and added that the recent release of the documents relating to Shaker’s torture in Afghanistan “compelled the UK Government to act” to secure his immediate release. He also said:

Before I saw these documents I stated unequivocally that the British Government is complicit in so far as it was present during his torture. Nothing that I have seen in those documents changes my mind. Generally speaking, and without revealing any detail from the documents, my overall impression of the documents is that they are exculpatory in nature, period [in other words, that they prove Shaker’s innocence]. The documents are helpful to Shaker’s defense, in so far as they describe the general allegations against Shaker, which we are in a position to refute almost unequivocally, and they show that he was tortured. What I have seen confirms my position that there is no legitimate evidence against him and confirms my continuing belief that he is being held by the Americans to cover up my government’s wrongdoing.

He added:

And unfortunately I have to, at this point, believe the British are not really advocating strongly enough for his return. As long as he is in Guantánamo he can’t talk and I can’t talk. He is still being tortured down there. And if he ends up dying down there I have to say there is blood on the British hands. The British can only sit back for so long and say, “We did everything we could.” He never posed a threat and he doesn’t pose one now. What this is, is a PR problem for both of them. The British need to do the right thing.

Turning to the Harper’s article, Mickum said, “I have no reason to doubt the information provided by the sergeant [Joe Hickman] is true and what we know is that my client was subjected to being tortured by maybe seven individuals at the same time as three people were alleged to have committed suicide.” He added that he thought that it was “likely” that Shaker was also subjected to torture in “Camp No,” like the three men who died. “That account appears to square with what happened to my client,” he said. “They choked his airway and put a mask over him.”

Despite representing Shaker, Mickum explained that he had not been allowed to see him since May 2009, and expressed concerns about his health. “Anyone who has been kept in the conditions he has been maintained in has to be suffering and laboring highly,” he said, adding, “My client wants to meet with me and he wants to talk to me, he is not being allowed to meet me or not being allowed to talk to me.”

Just last month, Mickum tried to call Shaker, but was told that Shaker didn’t want to speak to him. “Based on my conversations with him when I was able to talk to him, I just know he wants to meet with me and wants to talk to me,” he said, adding, “This is a convenient way to keep this story from coming out, that’s all it is.”

Clive Stafford Smith gave a similar appraisal, explaining, as Cahalan described it, that the Harper’s article “added to his belief the US government was afraid of what Mr. Aamer may reveal.”

Stafford Smith added:

This is merely confirmation, fairly stark confirmation, that the reason they wanted not to send him home to his family in England, but rather to send him to [his native] Saudi Arabia was simply to gag him. I have known Shaker for some time, and because he is so eloquent and outspoken about the injustices of Guantánamo he is very definitely viewed as a threat by the US. Not in the sense of being an extremist but in the sense of being someone who can rather eloquently criticize the nightmare that happened there.

With reference to the particular nightmare that took place in June 2006, it may be that the authorities at Guantánamo have refused to allow Shaker to meet with Brent Mickum or even to speak with him since May 2009 because that was when they first got wind that a former insider — Staff Sgt. Joe Hickman, a man with a faultless 17-year record in the military, and experience in military intelligence — had decided to come forward to explain why the official suicide story was a cover-up.

To date, the US media has paid little attention to these startling and profoundly troubling allegations, and it is clear, from a Justice Department investigation that was started, and then abruptly halted, that the desire to maintain the official line extends far beyond Guantánamo itself.

As it is, frankly, beyond rational dispute that, whatever occurred on the night on June 9. 2006, the official story is fatally flawed, and an independent investigation should be opened, it therefore remains deeply troubling, as those scrutinizing Shaker’s case recognize, that he has been held incommunicado for the last nine months, and that there is still no sign of when he will be freed, even though a military review board under the Bush administration approved his release in 2007.

Take action for Shaker Aamer

Saif Aamer, Shaker Aamer's youngest son, who has never met his fatherShaker Aamer features prominently in the new documentary film, “Outside the Law: Stories from Guantánamo,” directed by Polly Nash and Andy Worthington. The film is showing at Amnesty International’s Human Rights Action Centre on Tuesday February 16, and the National Film Theatre on Saturday February 27, and is then touring the UK. To book tickets for the Amnesty screening, see here, for the NFT see here, and see this page for details of the UK tour.

At the screenings, the speakers (including released prisoners Omar Deghayes and Moazzam Begg, plus Andy, Polly and other guests) will discuss what steps we can all take to put pressure on the British government to demand the return of Shaker Aamer to the UK, to be reunited with his family. To get involved now, please visit this Amnesty International action page, to find details of how you can write to David Miliband and Gordon Brown, asking them to demand Shaker’s return. Please also visit this page for a video of Shaker’s daughter Johina handing in a letter to Gordon Brown at 10 Downing Street on January 11, 2010.

The Wandsworth Guardian is also pressing for Shaker Aamer’s release. In another article in the paper on Thursday, readers were requested to join the Facebook group Save Shaker Aamer, to write to the Foreign Secretary, David Miliband, demanding that he meets the Save Shaker Aamer Campaign to discuss a way forward (write to: David Miliband, Foreign Office, King Charles Street, SW1A 2AH), and to write to their MPs asking them to sign the Early Day Motion (EDM) put forward in Parliament by Martin Linton MP, Shaker’s local MP. Readers can contact their MPs via WriteToThem.

Linton’s EDM (EDM 547) is available here, and currently has 57 MP’s signatures, which, as Mr. Linton told the Wandsworth Guardian, “needed to be 100 to send out a strong message.” He also said that he and the Save Shaker Aamer Campaign were not only pressing for a meeting with the Foreign Office, but planned to take Shaker’s case to Washington D.C., in a visit with Amnesty International, that is planned for March.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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