The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

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“We need the powers and the resources to expose the truth”

David Anderson QC (left), independent terrorism legislation reviewer. Ben Emmerson QC (right), UN Special Rapporteur on human rights while countering terrorism

On Wednesday, March 26, the Joint Committee on Human Rights (JCHR) convened on Westminster with the heaviest agenda of the parliamentary year so far – scrutiny of human rights compliance with counter-terrorism laws, protocols and their application. Following just  a week after another committee (Home Affairs) took great paints to summon Sir Mark Waller over GCHQ activities – and concluded that the little if any scrutiny granted to intelligence activity and data collection was far below a democratic threshold – the JCHR intended to make an inventory of the most pressing issues facing the human rights community in regards to counter-terrorism laws in the UK, enforced domestically and abroad. Present where David Anderson QC, an amicable, straight-forward and honest reviewer aware of his possibilities and difficulties as independent reviewer of terrorism legislation; and the both ubiquitous and far too rare Ben Emmerson QC, Special Rapporteur on Human Rights while Countering Terrorism.

As the UK slowly emerges from the deep slumber induced by the shock of the Snowden revelations, and intends to bring forward a semblance of a healthy democratic debate surrounding the overwhelming powers granted under its anti-terrorism legislation – from Parliament-embraced measures to unchecked use of executive power – this hearing was more formal that the Home Affairs’ submission to Sir Mark sought to be. Anderson and Emmerson, both tasked with a position that requires more than annual reports and evidence submission, highlighted not only the domestic inconsistencies of counter-terrorism legislation both in regards to constitutional safeguards but European legal compliance, but the international implications of the UK armed forces abroad – and even more to the point, the UK collusion with the US drone war.

Both Anderson and Emmerson were asked, as a preamble, to identify three key issues arising from abuses of counter-terrorism legislation – and both agreed on all three, their pressing need to be addressed, and the importance of a legislative scrutiny. Not respecting their own order, this write-up of the hearing seeks to re-affirm the basic principles of human rights compliance in counter-terrorism activities. Despite the current climate and the domestic policies seemingly asserting that the two are mutually exclusive, that conditions of necessity and proportionality involve derogations, and that national security imperatives supersede all – Anderson and Emmerson were both unequivocal in the belief that unless regular scrutiny, legislative and judicial review, and transparency prevail in a democratic country seeking to combat the extremely real of terrorism, abuses would be just as well shared by the nation-state violating the principles it had originally vowed to uphold.

Definition of terrorism

The question arose in the context of the Miranda v Home Secretary ruling in February, in which it had been effectively denounced and illustrated that section 40 (1) (b) of the ATCSA was too broad, too vague and unchecked to be efficient and free of possible discretionary, discriminatory abuses. As Emmerson remarked, the UK’s situation in defining terrorism – or failing to appropriately do so – is hardly unique. Many states, most of them being western democracies grappling with more or less open conflict in MENA or South East Asia, have definitions of what constitutes terrorism that are adaptable, subjected to interpretation, often not legislative. Anderson noted that he intended to revisit the definition incorporated into the ATCSA, if only in the light of the Miranda verdict – although the High Court ruling only emphasized that this became necessary, as opposed to shedding a light on an issue no one addressed. Continuing, “in the old days, terrorism was simple”, referring to the usual and perhaps now obsolete decision that terrorism was an act of violence perpetrated in order to achieve a certain political aim. The definition of ethnopolitical terrorism, a type of conflict Northern Ireland declared for decades, may no longer fit such a clear-cut bill: what has become a political means to achieve? Is the goal of the political action the strict act of self-determination, or can wanton destruction (of both property and persons) be considered terrorism? Should it be foreign or domestic? Should be carried by an organisation or an isolated individual? In the attempt to cover all bases, 40 (1) (b) covered, in fact, all bases, even those that perhaps should never be criminalized to the full extent of the overreaching powers of couter-terrorism legislation.

Ben Emmerson

Maybe more to the point – and this was said as an aside, despite its importance – a broad definition of terrorism could apply to state actors as well as it could to organisations and individuals. Emmerson:

This definition (…) criminalises conduct too broadly. The purported safeguards against abuses can’t be used against executive orders, that remain unchallenged. If you apply this definition, it could apply to British armed forces overseas.

Although it remains quite unsure as to how many eyebrows were effectively raised following this statement, Emmerson continued on the difficulties of applying a terrorism charge ex post facto. “This is not consistent with our constitutional principles”, he concluded, which will later be raised once more in the evolution of the legal context of counter-terrorism.

What was at the core of the Miranda case, indeed, was the extension of counter terrorism legislation to journalism – and the fact that carrying material that could be deemed harmful to national security; knowing, carrying, transporting, or transferring information deemed harmful; and publishing said information is now subjected to a terrorism charge. If journalists have now become a preferred target for outlandish counter terrorism laws that are only a front for clearly criminalizing dissent, the goal of extending these powers – which include prolonged detention, seizure of property, prolonged interrogation often as a result of long standing surveillance – to journalists, protected by the ECHR, the ICCPR and domestic mechanisms of press freedom, has a dangerous aspect that has forced one member of the JCHR to ask both barristers if journalism, and being a journalist, should be defined in order to create a framework that would escape the claws of counter-terrorism legislation. But being a journalist is not simply a profession on a card, not simply a career; it is the act of researching information and publishing it. In the digital era, an individual that may not necessarily be a career journalist, would not necessarily identify as such, or would not be hired full time and under contract by a newspaper organisation, can indeed act as a journalist and publish as such. Those individuals also deserve the protection of Article 10, and hold the right to a public interest defense.

Emmerson did not mention the Johannesburg Principles; instead, he referred to a more recent convention – principles laid out that goes through both domestic and comparative law in order to provide the best media protection possible, as well as enriching the legal mechanisms and recourses for whistleblowers… including those engaging in unauthorized disclosures. It is of Emmerson’s “robust view”, as he puts it – which may be robust in a vacuum, but necessary in the context – to foster and favour an environment in which the media plays a role of governing accountability and providing a healthy debate in the name of public interest. If the question of transparency has popped in a few times during the short hearing, it has however made a lasting impact – Westminster has now effectively held two parliamentary hearings during which observers, national, domestic workers in different fields, have assessed the Snowden disclosures not only as being in the public interest of the United Kingdom, but also having a much broader, international scope – which forces the national government in this situation, not only to address its own population in regards to the domestic spying apparatus in place, but to answer to the duties and responsibilities each nation has toward the others with which it engages.

Glenn Greenwald after finding out about Scotland Yard’s “Ports Circulation Sheet” related to the arrest and detention of his partner, David Miranda.

(If the Snowden revelations damaged more than two governments’ abilities to be trusted by their own population, we may not know in the immediate; US journalist Jason Leopold, who has filed a Freedom of Information Act (FOIA) request for a DIA document supposedly reporting on the “grave damage” the Guardian publication would have caused has been met with an “exceptional circumstances” excuse, seeking additional time to process his request. Considering the discourse on the so-called lethal effects of the NSA disclosures at home and abroad, one would be under the belief that the DIA would want this report out there, for everyone to stop considering Snowden a hero. Alas, this is not the case; and the notion of public interest in the face of grave human rights violations remain.)

Anderson, who has had first hand experience in observing press freedom and its restrictions elsewhere while on a mission for the Council of Europe (CoE), has reported that instances of restrictive definitions of what constitutes journalism and who can be considered a journalist, with the legal protections attributed to the title, more than often led to press freedom violations. He referred to the Levison case, another ominous jurisprudence for the United Kingdom. Although Anderson’s point was brief, if his intent was to suggest press freedom ought not to be restricted on matters of principle to avoid civil liberties violations (as opposed to restricting them for opaque national security matters), it was very well conveyed. The concerns raised by the JCHR was not in the strict and immediate future of the Miranda ruling, which is still under ongoing litigation, but just as dangerous and pervasive chilling effect it has on freedom of expression, opinion, and access to information. Emmerson, who never sought to wax poetic and engage in rhetorical battles of sorts on political linguistics, stated that national security was in fact used as an excuse to intimidate and silence the press. This goes hand in hand with recent declarations by UN Rapporteur Frank La Rue on the chilling effects of prosecution of whistleblowers. Anderson, who explained that national security was “notoriously undefined”, took issue with unquestionable, unchallenged and unscrutinized executive orders – as well as the Royal Prerogative – which, as a terrorism reviewer, leaves those unilateral decisions outside of his purview. It became clear at this point of the hearing that a legislative review of counter-terrorism, powers granted by Parliament and possibility to curtail, democratically, exceptional powers granted to the executive, could be what the UK – and by extension, the US – need.

CIA rendition program

A long-lasting thorn in Ben Emmerson’s side, the release of the Gibson Inquiry echoes the current theater drama on the other side of the Atlantic, as Sen. Feinstein struggles with the CIA, her own demons, and getting the votes to hypothetically release the CIA torture report. The Gibson Inquiry, named after Sir Peter Gibson, tasked to investigate the role of British intelligence forces into the CIA torture program, has notoriously been stalling for years. Then transferred to the Intelligence Services Committee (ISC), David Cameron, as a campaign promise, sought to take it away from Lord Gibson and handing it out to the ISC. He famously said, in 2010:

I do not think for a moment that we should believe that the ISC should be doing this piece of work. For public confidence, and for independence from parliament, party and government, it is right to have a judge-led inquiry. That is what we need to get to the bottom of the case. The fact that it is led by a judge will help ensure that we get it done properly.

A statement made on December 19, 2013 and released to David Cameron said the report concluded that matters needed “further investigation”. However, the ISC has been heavily criticized for failing to conduct proper oversight into the activities of intelligence services; in this case, the only released information concerned the MI-6 collusion with Gaddafi, which resulted in the rendition and torture of two Libyan opposition leaders in 2004. Handing the Gibson inquiry to a committee that lacks powers and resources to conduct a truly independent and thorough inquiry has been perceived by members of human rights groups as a willingness to whitewash the activities of the MI-5 and MI-6. As the ISC reviewer himself, Sir Mark, proved at his own hearing last week, the reviewer has little to no power over GCHQ; is massively understaffed; does not possess the power to compel evidence or summon witnesses; any evidence provided will be heavily redacted if ever possibly released at all. Emmerson, who expressed his frustration over the procedural limitations of the inquiry over and over again, re-affirmed the need to absolutely lift any roadblocks standing before the ISC “so the Committee can do its job”:

Individuals concerned by the inquiry boycotted it – but those who committed crimes need to be exposed. The Committee needs to have the powers and resources to expose the truth.

When asked if the ISC would ever face a conflict of interest in the conduct of a review that is neither legislative nor judicial, Emmerson expressed a commitment to oversight that is refreshing in an era of hyper-classification and constant executive-led belittling of calls for transparency. The Rapporteur then made a statement that sounds like stating the obvious, a truth that many democratic regimes may have held as self-evident, that is, until someone blows the whistle on works behind the scenes: that oversight is a traditional mechanism in advanced democracies. It is the one tool of accountability that can be relied upon especially when exercised by the very representatives of the people (legislative) and/or by an absolute separate branch of government (judicial). Only a lack of oversight, or a demonstration of powerless or virtually pointless oversight can reveal that separation of powers or excessive executive control has undermined the constitutional principles of society. As to whether any inquiry, inquiry report or conclusions should lead to prosecution, Emmerson believes that a strong judicial component to an inquiry could be an asset to conducting an investigation into intelligence services – as the judicial hand might be seen as stronger and less subjected to influence.

In light of Sir Mark’s testimony – which, again, he performed extremely reluctantly – the issue of transparency not only in intelligence itself, but in the conduct of oversight was raised. Although both Emmerson and Anderson mentioned the concept of “responsible journalism” earlier in the hearing, the necessity for information and the right to truth was once again made in front of a legislative body (emphasis mine):

It is always difficult to decide [ on release ] when dealing with sensitive information, to decide if privacy is justified. But what the committee is tasked with, parts are capable of being held in public. All that can be safely in the public domain should be in the public domain.

Unmanned aircrafts, targeted killings and undeclared battlefields

It was surprising to hear members of the JCHR being surprised that the use of drones made Anderson and Emmerson’s top three counter-terrorism issues list. Following an extremely brutal yet absolutely necessary report three weeks ago, which seemingly went half unnoticed even in the list of proposals it laid out in its conclusion, Emmerson provided the committee with what Anderson later referred to as a “masterclass on drones”. No stranger to their use in undeclared battlefields and the massive human rights violations they committed – pre emptive killings, unsanctioned use of military force, civilian killings and the absolute classification over their intelligence collection methods, their trajectory, and little known about their operating bases, it was no wonder that Emmerson’s tenure at the UN would prominently feature his lengthy field research in Pakistan and Yemen in order to amass the information that no one else would release to him, despite his position, that one would assume significant enough to warrant cooperation.

Alas.

Know Your Drone

Emmerson identified four key concerns, which he outlined in concise but harsh terms:

1) this is a 21st century weapon designed for asymmetrical armed conflict. As a counter-insurgency tool, which is what it is branded to be, it is of very little use and effect.

2) the Committee was right in saying that with the technology at our disposal, and the capacity to place suspects under 24/7 surveillance, it is in fact possible to protect the right to life closer to a zero-collateral damage than ever before – tools of precise targets, even more surgical strikes, and threat removal. Instead, the use of drones have illustrated reckless endangerment, and have destroyed said right to life.

3) Most of the difficulty that arises from the counter-terrorism and human rights study of the use of drones is that they often operate outside of the theaters of traditional armed conflict. Their constant hovering over Yemen, Pakistan and Somalia, nations with no declared war against the US or the UK, force precedence in areas of international law where there is nothing even remotely close to a political or legal consensus.

4) Drones are operated by the CIA.

Presenting this quote without further comment:

I don’t know who originally thought it was a smart idea to hand drones in a campaign of waging war through the air to an organisation bound by the rules of neither-confirm-nor-deny. (…) I’d rather give MI-6 a fleet of aircrafts and let them go off and do whatever they needed to do.

The complete lack of transparency even in answering simple questions from journalists and lawyers is what makes the CIA such an unpractical and dangerous organisation to direct and lead unmanned aircrafts – remotely based pilots distanced and detached from the battlefield, the realities of the insurgency and the bloodshed of the bombs they let off. The historical culture of classification and secrecy held by the CIA, the topic of which is often source of heavy-handed satire and conspiracy theories is an issue in and of itself. Abuses do arise, but in the hands of the CIA, they are effectively removed from any tool of accountability for the civilians affected by their practices; the wounded as well as the killed. The effort to transfer the direction of drones from the CIA to the Department of Justice (DoJ) was a step in the right direction, but hindered. Emmerson however noticed that since John Brennan took over as head of the CIA, Pakistan enjoyed a period of relief from the death machines. (Sadly, this has not proven true for Yemen).

Picking apart Emmerson’s new report draws the eye on his rhetorical questioning on a proposed change of international law (!) and accountability systems of counter-terrorism (!!) to fit the current and evolving framework of the counter-terrorism and counter-insurgency methods the US and UK are practising in the name of their endless War on Terror. Reducing it to the simplest possible question due to the nature of the hearing and its limited duration, Emmerson was asked to answer whether war should be redefined. This, however, was not rhetorical. Stating that this is a complex issue – and I would argue, the most complex international criminal issue of our time, one I have been working on for ages – there is no consensus among states, or even among lawyers. The Geneva Conventions are and should remain the guiding principles of the law of warfare; but the nature of conflicts themselves have evolved far away from our traditional and historical definition of what constitutes an international armed conflict. Most of the battle zones, these days, are asymmetrical battlefields – meaning, in broad and simple terms, a nation-state against a more or less borderless organisation. Henceforth, the targeted laws of international humanitarian concepts are harder and harder to apply. Jurisdiction is an ongoing concern in matters of judicial accountability. Classification is the biggest fear in matters of political accountability. If counter-insurgency and counter-terrorism are often confused in media coverage, it is because the definition of what constitutes a legitimate military target not only varies according to the country in which the fight is taking place, but also the rules of engagement (for armed forces); the duty handbook (for private military contractors), and legislation once one policy expires or there is a change in administration. The questions Ben Emmerson asked at the end of the report, which asked states involved in the War on Terror to not only answer his calls for transparency and release of information, will be subjected to a vote at the United Nations shortly, recommending the establishment of a committee that would hear states and their own national, domestic and political vision of counter-terrorism, human rights compliance, and the legal systems of accountability they would recognize.

As I said, Emmerson’s report was a brutal read; and if some states decided to play the game and submit themselves to Emmerson’s questioning – the future will tell the degree of truthfulness involved – the Rapporteur was quick to point out that the UK was “not terribly keen” to submit themselves to the Human Rights Council. In itself, it is immensely telling.

Home Secretary Theresa May

Citizenship deprivation, executive powers

When mentioning the awfully limited and comically useless powers of Sir Mark Waller, it was unbelievable to conceive that David Anderson would face oversight issues. Indeed, his body of work as a reviewer is comprehensive, transparent, available and accessible. However, in the recent decisions made by the Secretary of State and Home Secretary, regarding immigration, deportation and revoking powers, Anderson admitted he had no review powers – those fell under immigration ministry oversight. However, one concern was a power that had been long lost and was somehow revived in the last twelve months: revoking a passport. Since April 2013, 14 passports have been revoked under powers granted by the Royal Prerogative, another unilateral executive power not subjected to review. (We remember activist Moazzam Begg’s passport being confiscated upon return from a humanitarian trip to Syria, not long before being arrested and detained by the anti-terrorism unit of Birmingham Police).

But again, the bigger picture remains the same: it is an issue of transparency and accountability. Theresa May’s citizenship deprivation scheme, detailed here at length by journalist Aviva Stahl, have obscured motives yet terrifyingly clear results. Left vulnerable, without diplomatic assurance and the protection of the right of abode, statelessness effectively makes individuals vulnerable to gross human rights violations – historical instances in the previous centuries having led to the 1954 Convention on the status of stateless persons. Although the power of revoking citizenship is a prerogative of any member state, the necessity to ensure that the individual is not only entitled to powers of appeal of the decision but also has another citizenship or state willing to grant asylum once the decision made should be a duty incumbent to any state party to that treaty. Emmerson, falling into the footsteps of a House of Lords hearing last week during which the scheme was debated, in the light of two individuals murdered by a drone strike directly following the revoking of their citizenship, reaffirmed that international law had to prevail in a climate of perpetual and ubiquitous conflict during which individuals are not to be left without possibility of refuge. However, the follow-up question was met with concerns for the security of the United Kingdom, not an appreciation of the human rights of individuals, regardless of their alleged or confirmed criminal status. Emmerson, again:

Those singled out for a crime that is wholly public – on notice from the government and the services that watch them – are those posing the least threat. This is a radical power, and it makes one wonder what someone did to deserve such a measure.

Anderson, who has consistently and abundantly worked on TPIMs, was happy to report there were none enforced currently; there should be an emphasis on prosecution in matters of criminal wrongdoing, as opposed to executive orders in matters of security. Are the TPIMs really that efficient in terms of counter-terrorism prevention? Are executive powers a deterrent to criminal activity? What can be a deterrent? Wouldn’t the appropriate behavior to work on the roots of terrorism – explained and detailed in the UN 2006 global counter-terrorism strategy – as opposed to immediately and profusely rely on executive powers, unchallenged and unchecked, to provide national security?

Crux of the matter remained that scrutiny of executive powers and executive services – intelligence and use of military force in matters of counter-terrorism – require that the other branches of government obtain at least equal power to the executive as opposed to being subjected to disclosure exemptions, classification refusals, and clearance denials when accessing material, evidence, and individual that would facilitate the conduct of their work. Anderson suggested that members of Parliament engaged in legislative review should be granted security clearance to access GCHQ / MI-6 material – or at least, be treated as if they did. “It is the only way we can debate information in a meaningful way”, he said, in yet another significant effort by a terrorism specialist to emphasize the necessity for clarity and transparency in the healthy course of democracy. Emmerson concluded that oversight was not working as it well as it should be, but thankfully, we could rely on a momentum, at international level, to create direct obligations upon member-states to abide by human rights provisions in the course of intelligence gatherings and counter-terrorism.

And we hope it doesn’t stop.