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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The collective consciousness and the lingering spectre of torture

Col. Larry James, chief psychologist at Guantanamo, 2003; director of the Behavioral Science Unit at Abu Ghraib, 2004. Retrieved at Newsweek, August 2015

More than the release of the Senate’s “torture report”, one of the defining moments of the American public’s reaction to the CIA’s rendition, detention and interrogation (RDI) program was the moment the New York Times decided to stop using the euphemism of “enhanced interrogation techniques” to describe what was and is blatantly torture. Executive editor Dean Baquet wrote in August 2014,

The word “torture” had a specialized legal meaning as well as a plain-English one. While the methods set off a national debate, the Justice Department insisted that the techniques did not rise to the legal definition of “torture.” The Times described what we knew of the program but avoided a label that was still in dispute, instead using terms like harsh or brutal interrogation methods. (…) Over time, the landscape has shifted. Far more is now understood, such as that the C.I.A. inflicted the suffocation technique called waterboarding 183 times on a single detainee (…) Given those changes, reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

I was reminded of this while reading a piece called “Lives by omission” in the latest issue of Harper’s. J.M. Coetzee published exchanges with psychotherapist Arabella Kurtz on the parallels between fiction and psychotherapy. In this particular excerpt, they examine the process of repression, that Freud explained distinguished human beings from beasts. Coetzee writes, “What we gain in repressing what we do not want to remember we have to pay for with the subterranean poisoning of other aspects of our lives.” Later, he provides a torture analogy:

But is it true that repression necessarily fails? To give an extreme example, certain people who have committed vile acts – torture, murder – seem able to construct life stories (memories) for themselves out of selected fragments of the real (the long hours they had to work, the gratitude of their superiors, the promotions and medals  they received) and to live with and by such memories, while repressing all the ugliness. Classical theory, at least in its popular version, says that such people have unhappy relations with their wives and children. It says they suffer from nightmares. It says that they are secretly haunted by the cries of their victims – by what they try and fail to repress of their “real” past. And indeed, if you put a torturer on trial or if you compel him to undergo a course of psychic rehabilitation, he may begin to recollect those “repressed” cries.

If we see the construction of a personal narrative when committing “vile acts” – and there is no doubt that the operatives, government agents or contractors, that have taken part in the RDI program have committed vile acts – as a success of the psychological process of repression, it is difficult then to legally extract an individual responsibility for said crimes. Or is it? Yes, the gratitude of the superiors, the constant political rhetoric around the efficiency of torture, supposedly scientifically supported and pushed by legal celebrities such as torture-by-warrant proponent Alan Dershowitz – provide comfort, containment, and eventually, a levee against the perhaps inevitable wound inside the human psyche that remains after the crime, a wound that extends to the whole of humanity, as Dostoevsky expressed so well.

When Col. Larry James, former chief psychologist at Guantanamo, responded – reacted – to the APA motion banning its members from colluding with the CIA and the Pentagon on interrogation techniques, he did so by claiming the motion, the legal opinion of which I have written, holds “negative consequences”. In the APA debate taking hold before the vote, James asked:

So I need to know: Does international law supersede U.S. law? Because if the answer to that is yes, this has dire negative consequences for all federal employees, particularly in the VA and the department of homeland defense.

APA president-elect Susan McDaniel said the vote was to “reset our moral compass”. And yet, there is a continued willingness to push a narrative of efficiency and most importantly necessity from which a portion of the US public had started to distance themselves. Even the paper of record had a moment of reckoning with the ubiquitous use of comfortable and convenient paraphrases – enhanced interrogation techniques – realizing their responsibility in the dissonance between public political discourse lied in telling the truth as it stood and stands, not furthering the lie. There is no way of knowing whether Col. James, as a public persona, aligns with Larry James, the private individual, on the issue of torture. Another aspect of the APA motion was that it stopped providing the CIA and the Pentagon with their medical crutch, a huge part of their justification for their actions; it also confronted APA members with themselves, their actions, and their beliefs, depending on how well rooted they were. As sole dissenter, Larry James isolated himself in a landmark decision that will affect future operations of US intelligence agencies and their collaborators. He placed himself on a different shelf, aligned himself with the US’ interpretation of the Convention Against Torture that was laid out by John Yoo. He worried about criminal responsibility if the APA took a position on the absolute prohibition that aligned with international law, not with the American political context of the war on terror.

Human rights law is not rhetorical. It was not written as such and is a difficult area of practice. It is often mentioned that legal positivism is a question of morality, conscience and interpretation – all of which being subjective – but it was meant to translate into effective and immediate remedies for those affected by the violations of these peremptory norms. The prohibition of torture, although it is an intersectional and interdisciplinary issue to approach, is no different. It is part of this body of law that holds within it the fundamental principles of humanism and a loaded collective memory. Speaking of the prohibition of torture as the absolute that it is has been derided to great extent since 9/11, as being unpractical and inapplicable on the ground. The role of the APA in supporting torture was to create a sound argument for exemption, a legally acceptable derogation, hitting back at IHRL for existing outside of a reality of constant violence, fear, and imminent threats. The world had changed, we were told; it took a turn for the worst; we would not be much of a society if we did not do whatever it takes into protect each other from those external and shapeless monsters that are jeopardizing all this stability we have created. Torture is a collateral crime; it is the result of our back against the wall; it is an answer of last resort that no one wishes to brag about, but still needs to use when – we are told – all other methods failed.

Few images of British national and Guantanamo detainee Shaker Aamer exist. He insisted that this one, depicting him smiling, was the one use in coverage of his case. Aamer, who should be released by the end October, is still on hunger strike.

But the prohibition of torture is an absolute; human rights law resists against political derogations; and the truth lies outside the scope of Col. James’ arguments. We have had an opportunity to look at this torture-we-dared-not-speak-of in 2006 and 2007 through European Parliament rapporteurs Dick Marty and Claudio Fava. Their work failed to challenge overseas. Europeans, their commitment to the rule of law and their stubborn refusal to accept a war paradigm for counter terrorism will have to wait until Bin Laden is killed. It did not matter. Those reports were academic, had gaping holes where ministers were supposed to testify, untimely, and pitted natural allies against one another on questions of principle.

Feinstein’s report shifted the attention away from the purported accomplishments of special forces overseas to what they were doing in “black sites”, in Bagram, in Guantanamo, and everywhere else. It showed the general public, weary of battles of words, a side to their endless but righteous war they were not ready to face. The backlash has yet to be immense. President Obama admitted the US “tortured some folks”, and there are still no charges, no indictment. There had been a suspension of the repression, a brief moment of lucidity, during which the horror was contemplated. In those moments, there are no nuances. There are no spectrums of opinion; there is no gradual assessment. We are horrified, or we are not. It is a choice. It is fundamental to frame it as a choice, because for the first time, the general public – not lawyers, not activists, not officials-speaking-on-condition-of-anonymity – were in the know. There was an incomplete, yes, but sufficient glance at the truth. We can stare at it, as the APA did, 6 years after the first draft of the motion was submitted, and act on it, fight, struggle, and scratch beneath the surface; or we can turn away. We can pretend those practices were small moments between brackets of our collective history; a bygone footnote of a much bigger context.

The “Hooded Men”, with their legal team and Fr. Murray. Retrieved at the IrishPost, October 2015.

But if it needs repression to be worked out, it is much more important than a footnote. Repression is a tool that shapes one’s identity. The piece I quoted before imagines what a torturer on trial would face, a sort of crash course in psychoanalysis: “… If memory is malleable in one direction, obliterating what disturbs the subject, it is surely malleable in the opposite direction too.” And if the rule of action and reaction also applies to the human psyche – for a stone to roll on a plane surface, it needs a force to project its weight forward – that crucial moment in our collective memory has yet to happen. The catharsis we expected from the passing of the APA motion did not take place. The administration did not take note. The UN committee against torture continues to plead for acknowledgement, truth, accountability, reparations. Those are not symbolic; truth and accountability can begin a process of healing, and of returning to the roots of the absolute prohibition. There is still much we need to know. We need access to the medical files of Guantanamo detainees; we need the stories of those detained at Bagram; we need the memoranda of understanding between the CIA and collaborating countries to understand how the US persuaded member states to take part in the program, from simple material support – Ireland lending the Shannon airport airfield for refuel – to construction and maintenance of sites in Poland, Lithuania, Romania and many other places. Ben Emmerson called the rendition private a vast international conspiracy. How the Obama administration expects us to forgive and forget is just as unclear. Or maybe the expectations are so low in what our collective threshold of tolerance is, that it becomes acceptable to whitewash a crime of this magnitude.

As the countdown has started on the 30 days during which Congress can oppose the release of long time detainee and British national Shaker Aamer, the question of the motive for his prolonged incarceration – he was cleared for release twice, in 2007 and 2008 – rises again. It is unclear how much we will know about his medical history between his capture and his release, whether medical professionals in London will have access to to treat him, if he will be able or willing to speak. Andy Worthington, a journalist who has spearheaded the campaign for his release, has often pondered whether Aamer was the detainee who knew or saw too much. What this effectively means, we are still not sure. Aamer’s lawyer, Clive Stafford Smith, warned us in an op-ed that a campaign of misinformation seeking to justify the treatment inflicted upon a man never charged with a crime and sold to US authorities by local warlords in Afghanistan would begin. We have a duty not to repress what we know of Shaker Aamer’s torture. We have a duty to resist and endure a debate that should last, no matter how nauseating the details and painful the recollections, until we have full accountability.

When the authors of the APA motion first contacted me, they mentioned my background: I grew up in Belfast, Northern Ireland, under British counter terrorism policies that included the use of torture. It has been part of our small, local, contained history – or so we thought: the evolution of psychological torture, from Kubark to Belfast to Bagram, is now established as linear. On November 30, the judicial review for the case known as the “Hooded Men” will open in the city, and the battle for public versus withheld information will continue to rage. There is a responsibility that lies with those of us who have seen the future of a policy of impunity not to see it reemerge elsewhere.

And this responsibility isn’t rhetorical either.

CIA torture and the Control Principle

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Portion of the report of the Gibson Inquiry, published on December 19, 2013. The Gibson Inquiry has closed document review in 2012. (1)

 

In 2010, he British High Court, represented by Lord Chief Justice John Thomas dismissed an appeal from the Foreign Secretary in the Binyam Mohamed case and addressed the issue of the UK intelligence services’ use of torture at the behest of the US War on Terror head on. At the time, this seemed a proper, relevant, and necessary illustration of the judiciary’s independence and its need to place executive authority under review. The UK had covered its counter-terrorism operations with a cloud of exemptions, derogations, and immunity since 2000. It went so far as amending laws to create new sanctions, using prerogatives as orders, classifying material which assisted in wrongdoing, and, in the case of the judicial branch, refusing to sit on the operations of a friendly nation-state on the theory that doing so would violate jus gentium—despite the government’s admission of “serious” violations of international law. The British High Court’s ruling was important then, but after the Gibson Inquiry into MI-5 / MI-6 collusion with the CIA closed in 2012, it is even more important now, when hypervigilance, hyperclassification, and multiplying extrajudicial orders give the impression that everything is out of our control, out of our sight, left thoroughly unchecked, and cannot be stopped.

The United States is justifiably focused on the circus-like saga surrounding the release of the Senate Select Committee on Intelligence’s CIA torture report. The very Senate Committee that created the 6,800-page report voted for its release, but a White House paralysed by the possible consequences of its release and a CIA unwilling to accept, reveal, investigate, prosecute, amend, reconcile, or apologize for its part in US torture still block and red-tape the report at every level. However, we seem to forget that 53 other nations were involved in the CIA’s rendition program. If supranational courts have forced some nations to face the reality of collusion and investigate the crimes committed by their leaders, others are in a permanent and affirmed state of denial. As for the UK, the CIA itself has acknowledged that its idea for world domination through torture could not have reached the heights it did without the help of Her Majesty’s most trusted agents. The pressure is on all the way through Westminster, and in the pages of the Telegraph.

Binyam Mohamed, from Ethiopia and UK national, detained at Guantanamo between 2004 and 2009. Here, upon his release. (via The Guardian)

 

The Binyam Mohamed ruling contains a lot that deserves a closer look, or at least another look, with the gift of hindsight. Ideologies, secrets, backdoors, and public acknowledgements—you can find it all if you address the Control Principle and uphold open justice.

 

Fighting secrecy in courts: PII certificates

Intelligence operations that touch on important foreign relations rarely suffer any disclosures. The few leaks that do happen are mostly unauthorized. Many are severely condemned, and almost all become a source of concern for both the subject of the disclosure, whose dubious actions are exposed to the world, and its source, who is vilified and criminalised. However, it is crucial to uphold the independence of the judiciary. The right to truth cannot take a back seat to foreign policy interests, especially in the face of gross human rights violations. Faced with the difficulty of ruling against a pressured and pressuring executive authority and the overarching need to address a case of torture so severe it involved at least four different sovereign states, the High Court weighed in on a conflict of principles that would define the legal battles surrounding the War on Terror: public interest versus lasting foreign cooperation.

1. Is there “uncertainty” in the US/UK relationship?

It is almost impossible to weigh the importance of the UK/US relationship while their intelligence cooperation agreement is still classified. UKUSA – born out of the 1944 “BRUSA Circuit” and famous for spawning the Five Eyes signals-intelligence alliance in 1955 – has defined a transatlantic partnership that predates the War on Terror, and even the Cold War. Seemingly intended to create a rapprochement between Europe and the US after World War II, UKUSA often isolates the rest of the continent to the benefit of a sprawling group of intelligence services —MI-5, MI-6, GCHQ, SAS—serving, aiding, and completely abetting the CIA in its activities overseas. It is preposterous to assume there is any sort of uncertainty in the US/UK relationship, but a legal decision is likely to make precedent if it somehow undermines the principles of secrecy and national security that currently define executive authority in counter-terrorism and military deployment. Such a ruling would undermine the common assumption that intelligence operations are the executive’s sole prerogative and that the judicial will defer to the executive in gauging their importance.

But the case of Binyam Mohamed proved that a need for judicial review was pressing, that the scope of the CIA rendition and torture program was so vast it could not stand to remain unchecked much longer. The pages-long ruling endlessly debates the hypothetical consequences of disclosing intelligence operations that led Binyam Mohamed’s detention at Guantanamo—the detention of a man who ceaselessly claimed to be innocent and suffered hell at the hands of agents never bound by habeas rules. Here is the core of the debate:

Making it “. . . clear that the US Government’s position is that, if the redacted paragraphs are made public, then the US Government will reevaluate its intelligence-sharing relationship with the UK with the real risk that it would reduce the intelligence provided. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the US Government might carry that threat out and this would seriously prejudice the national security of the UK.” (paragraph 87, quoting paragraph 62 of the judgement)

The Foreign Secretary asserted very clearly that the intelligence-sharing agreement is not necessarily based on a needs assessment and equality in providing information but is deeply rooted in complete codependence which he must protect above all else—including, it seems, from the judiciary’s authority over wrongdoing committed by services under executive power. In fourth judgement, the Court ruled that exposing the truth was one valid concern in a case that was arguably necessary to place in the public domain due to the grave violations it illustrated. However, the threat of the US turning its back on the UK due to a breach of trust by pulling out of UKUSA was an even concern than the condition of Binyam Mohamed and countless other victims of the War on Terror, from Kabul to Rabat, from Bucarest to Cuba. The fourth judgement made clear that executive interests supersede human rights law:

Whatever views may be held as to the continuing threat made by the Government of the US to prevent a short summary of the treatment of Mr. Mohamed being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the UK to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law . . . it must now be for the US Government to consider changing its position or itself putting that information into the public domain. (Para. 107)

Simply put, the consequences would be so grave to the UK that the Court refused to take such a responsibility and instead let the US decide whether to ultimately reveal—or maintain as classified—information in a case against a UK agency concerning UK agency wrongdoing and presented in a UK court of law.

US Secretary of State Hilary Clinton (l) and UK Foreign Secretary William Hague (r), July 2011 (Reuters)

This is the extent of the Control Principle. It is so unbelievably central to the mere survival of the imperialist island that it is willing to sacrifice fundamental rights and detach parts of its democratic principles in order to maintain core agreements that are essential to maintaining the executive authority in power. UKUSA is more than an intelligence sharing agreement; as its acronym suggests, it is an almost literal blood-sharing treaty on which the national security and foreign policy of the two most influential world powers is based. The fourth judgement made it clear that the Foreign Secretary would not risk weakening the UK’s life force just for some man whose identity was so unimportant that his alleged crimes barely warranted address in a court of law.

2. Is disclosure a breach of trust?

How much trust does the US and the UK vest in UKUSA, and what measures can hold operations created and carried out under its provisions accountable to justice?
According to the Control Principle, the country that provide information is responsible for its confidentiality, never the country that receives the information. If one end is closed, the other is open, by principle. In reality, however, this principle is often subject to political affiliations, bilateral agreements, and traditional respect for the classification and secrecy inherent to intelligence sharing protocols. A country that provided another with information might consider the receiving country revealing its methods, sources, or content a breach of bilateral agreements that could harm the vital foreign interests in the name of which the US and the UK have colluded on many recent foreign intelligence cases—the GCHQ/CIA case of a drone strike in Pakistan in Noor Khan v. Secretary of State, for example. LJ Thomas was right in asserting that, in matters of national security, the judicial branch defers to the executive, which is traditionally responsible for diplomatic, military, and intelligence decisions. However, the judicial also has a democratic right to check and balance powers granted to the executive—be they constitutional powers, like national security, or extraordinary powers beyond legislation in times of exemption, like counter terrorism—by intervening in time of wrongdoing. In this capacity, the judicial has the authority to place the control principle under review.

The difficulty in addressing the circumstances of Binyam Mohamed’s arrest, detention, interrogation, and torture lays with the fact doing so would reveal the working relationships between the UK and the US in the War on Terror. Weighing the confidentiality of intelligence-sharing protocols against the need for open justice, however, LJ Thomas carefully crafted what he referred to as “an exercise in judicial patience.” He detailed his very thought process based on questions of principle, on one hand, and previous jurisprudence justifying an extraordinary case of release and publication, on the other. The Foreign Secretary, William Hague, immediately submitted public immunity certificates in order to protect the confidentiality of UKUSA. Here, collusion between the UK and the US was more than an allegation; the court factually asserted it, with LJ Thomas himself referring to UKUSA, although not by name but by content, saying it was “no secret” that the text existed and that it was still in operation:

It is no secret—and indeed it has been an unbroken theme of the Foreign Secretary’s position—that there is a close intelligence sharing arrangement between the UK and the USA. If the redacted paragraphs do not themselves contain secret or intelligence material, and the intelligence-sharing arrangements between the UK and the USA are publicly declared, one may enquire why the redaction is necessary. In essence it comes to this: Unless the control principle prevails, the intelligence-sharing arrangements between the USA and the UK will be reviewed, and the following review may, not will, become less “productive” to presumably, the disadvantage of both countries, although I shall assume to the much greater disadvantage of the UK. The Foreign Secretary believes that such consequences will inevitably follow any contravention of the control principle, whatever the circumstances in which or the reasons for the court’s decision that it should be disapplied. The difficulty therefore arises from the control principle itself, and its application in troubled times.

Sir Richard Dearlove, chief of secret intelligence from 1999 to 2004, who recently made headlines for demanding more oversight of UK intelligence operations (2)

What LJ Thomas mentions may not be known conventionally or acknowledged officially, but it has been a constant in diplomatic relations for a long time, disseminated through conversations with journalists and in legal analyses: UKUSA exists, and both government have highlighted and perhaps even reinforced it in the “troubled times” that are the War on Terror. The control principle would allow the UK to breach UKUSA’s promises of confidentiality unless the Foreign Secretary could sufficiently prove that disclosure would be extremely damaging – not just the information itself, but the fact that a judicial court of the UK would release the information in its own sovereign right without the US’s prior consent. Jonathan Sumption QC, speaking on behalf of the Foreign Secretary, argued that such a disclosure would be “profoundly damaging to the interests of this country” and even “irresponsible”. As for the Foreign Secretary himself, in his Summary Grounds of Resistance to support his demand for public immunity, he never fell short of emphatic qualifiers:

. . . the claim was said to be “unarguable,” and the allegation that the UK government had been “mixed up” in, so as to facilitate it, the alleged wrongdoing (by USA authorities) is untrue”. It was averred that “no department or agency of the UK government was involved in the claimant’s alleged torture in Morocco and Afghanistan. Nor has the UK government done anything to facilitate the Claimant being subjected to torture.” The contention was effectively repeated in the Detailed Grounds of Resistance: “[T]he pleaded case on facilitation wholly fails.”

The Court refused Binyam Mohamed, who knew UK agents were present during his interrogation and may have facilitated his seizure, the right to access documents pertaining to his detention, in complete violation of open justice. Mohamed’s lawyers rooted their claim for disclosure of those documents—not only to the claimant but also to anyone having access to the ruling, which is everyone—in a 35-year-old principle in the case Norwich Pharmacal Co. Formulated in circumstances far different from the gruesome and harrowing complexities of the rendition program, that principle maintains that the perpetrator in a situation of facilitation, even involuntary, must cooperate in the course of justice:

If through no fault of his own a person gets mixed up in the tortious acts of others as to facilitate their wrongdoing, he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. . . . Justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.

What Norwich defines is not even collusion. It does not require intent and does not even demand liability from the third party. Still, it view disclosure as justified and part of the course of reparative justice. The Foreign Secretary’s response seems disproportionate. He did not wish to to protect the public from finding out that the UK collaborated in torture. Rather, he simply did not wish to disclose information related to the intelligence activities of another nation—even intelligence activities inflicted on the body of a British national. What is now a question of “vital foreign interest” darkens and becomes more ominous by the minute: it seems that preserving UKUSA is more important than the rules of law that bind the Foreign Secretary—not only in his position of governance, but, as LJ Thomas said, as any other litigant. If Norwich applies to a severe case of premeditated collusion resulting in gross human rights violations, and it surely does, then it reinforces the demand for disclosure. Redacted paragraphs related to the surveillance and arrest of Binyam Mohamed show that the UK did not “involuntarily facilitate” the actions of the CIA. Rather, the CIA was aiding the UK in apprehending a suspect they believed was a threat to the UK because they believed threats to UK national security also posed threats to the US. This is how Binyam Mohamed ended up in Guantanamo Bay:

(i) The SyS and the SIS were interested in (Mr. Mohamed) because of his residence in the United Kingdom, his connection with suspected persons in the United Kingdom, the period of time spent in Pakistan and Afghanistan, those whom he was said to have been with and the gravity of the allegations made against him at the time.

(ii) We have no doubt that, on the basis of that information, the SIS and SyS were right to conclude that [Mr. Mohamed] was a person of great potential significance and a serious potential threat to the national security of the United Kingdom. There was therefore every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to cooperate as fully as possible with the US authorities to that end.

The problem is that gathering intelligence in accordance with the rule of law excludes the concept of full cooperation with the US authorities when it comes to terrorist suspects in the War on Terror. Continuing:

(iii) It was clear from reports that (Mr. Mohamed) was held incommunicado from 10 April 2002 whilst a series of interviews were conducted by the US authorities in April 2002, during which he had asked for a lawyer and had been refused . . .

(ix) By 20 September 2002, it was clear to the SyS that (Mr, Mohamed) was being held at a covert location (either by the authorities of the United States or under direct control of the United States) which was not a US military facility, such as Bagram. It is clear to us that they knew that he was not in a regular US facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the US authorities had direct access to information being obtained from him.

Aerial view of the Salt Pit, a CIA black site just north of Kabul, Afghanistan

Of course, UKUSA is not solely responsible for what happened to Binyam Mohamed and countless others whose rights were denied to prosecute the War on Terror. The CIA rendition program encompassed 54 countries, including the United States, all of which cooperated willfully and with the acquiescence of local authorities. To various degrees, all 54 work under intelligence sharing agreements similar to UKUSA. What makes UKUSA so special is the very specific nature of the diplomatic, military, political, and legal relations between the UK and the US—a deep entrenchment enshrined in an agreement dating initially to 1940. Each country has proved to be invaluable to the other. They are, in fact, almost incestuous. If current relations between the UK and the European Court of Human Rights (ECtHR) are more than glacial, the government can only halt the rule of law and judicial review of intelligence-sharing agreements using political and diplomatic protocols. The political normalcy of “vital foreign interests” regarding intelligence gathering and sharing are now even more important to the activities exercised and practiced by the executive of both nations involved in the bilateral agreement. The content of UKUSA is classified. Having been placed to the forefront of current conversation due to being the genesis of the Five Eyes program, UKUSA contains much more—and the very fact that it exists may in itself become an objection to the understanding that intelligence principles are sacred and far beyond the concept of public interest.

The language that the Foreign Secretary used to justify his public immunity certificate may be vague in rhetoric, but it is vastly telling in its interpretation. In paragraph 45 of the ruling, LJ Thomas contemplates the arguments the government brought forward and questions the very nature of UK-USA relations, so necessary that they can apparently destroy political stability:

The Foreign Secretary’s first PII certificate referred to the uncertainty which would be introduced into the working relationship between this country and the USA if the disclosure were ordered. The second PII certificate stated in terms that “disclosure of US intelligence information by order of our Courts would breach the trust and the fundamental requirement for confidentiality that lies at the heart of the UK’s liaison relationship with the US intelligence agencies. . . . It is not simply confidentiality and the secrecy of intelligence material that is an issue, however, but also the issue of the control that one government has over the intelligence information that it shares with another government in the expectation of confidentiality. . . . Breaching this principle will have significant implications that run far more broadly than this case.”

It is difficult at this stage not to simply demand the full disclosure of UKUSA in order to understand these “significant implications,” highlighted so strongly that they almost demand that we ask the question of what exactly is at stake. LJ Thomas’s ruling precipitated a hypocritical, voluntary disclosure of the 1955 version of the agreement, displayed on the NSA website as a quaint historical relic from the early days of the Cold War. The second part of this paragraph seems to let LJ Thomas know that he is facing something that is much bigger than his actual mandate:

The third PII certificate, acknowledging that the UK courts had power “in principle to disclose information provided by a foreign liaison service or derived from such information without the consent of the provider (and even against its expressed will),” concluded that the exercise of the power would be “extraordinary.” That was close to the Foreign Secretary’s assertion in the meeting with Secretary of State Clinton on 12 May that “the British Government would continue to make the case that it continued to be an inviolable principle of intelligence co-operation that we did not give away other people’s secrets.” An “inviolable” principle does not appear to acknowledge or permit any exceptions. Expressed in this way, the control principle assumes a level of primacy which diminishes the responsibility of the court as the ultimate decision-marker virtually to extinction.

LJ Thomas, who does not sound amused in the slightest by the blood promises exchanged between two Foreign Affairs peers, essentially understands that intelligence supersedes the rule of law in a way that can suffer no judicial review. But if the “international conspiracy” of the CIA rendition program is not extraordinary then what is?

CIA rendition map trajectory: including black sites, refuel stops, and detention zones (Europe, North Africa). Chart by Trevor Paglen

 

“the exercise of the control principle would be extraordinary.”

This decision matters because of the control principle that prevents disclosure on one end while authorizing it — in principle — on the other. When it comes to rendition and torture programs, the tendency to cover accessed, accessible, and processed information is US-centric. As the CIA’s activities have came under increasing congressional review, politicians and journalists have largely framed them as matters of strict American concern, and, more importantly, American accountability. They dominate US-based media, which perceive them only through an American prism. As a result, politicians and public alike have come to see issues like how the government has classified the CIA torture report and which branch of government has the hypothetical authority to release it only as US problem. Most media outlets completely omit the 53 other sovereign nation-states that cooperated with the CIA, with the exception of a handful of unconventional journalists unafraid of tapping into raw sources.

But investigations all over the world have released information about the program in various batches. US news outlets initiated a few—most notably a 2007 report from ABC news that itself precipitated investigations in Lithuania. The UK has managed to keep the degree of its involvement in the CIA torture program largely under wraps for two reasons. First, legislative review has been slow because many MPs do not possess the security clearance necessary to access relevant material on MI-6, MI-5 activities, hindering legislative review. Second, it is impossible for UK courts to sit on the activities, especially intelligence-related activities, of other sovereign states. If the latter is a well-enshrined principle of international law, the former is a worrisome indictment of an overwhelming national security principle overriding basic democratic checks and balances. This is a sore point in the UK, where judicial deference in matters of national security has been put to the test, each time with respect to UKUSA.

Put shortly, it might be possible to release information on CIA activities by looking at what the CIA requested from other agencies.

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The distrust inherent in intelligence communities raises the question of trust not between the government and the governed, but between governments themselves. Failing to uphold that secrecy by disclosing another nation’s intelligence, in violation of a classified intelligence-sharing agreement, would effectively destroy that agreement and undermine the credibility of the intelligence both nations share. If a nation sees its partner in an intelligence-sharing agreement as untrustworthy then it is unlikely to share intelligence high quality or value. A study on intelligence sharing in counter-terrorism by J. Walsh explains this in some detail:

. . . This understandable concern with security opens the possibility that shared intelligence might be of questionable reliability. States sometimes forgo the benefits they would accrue from defection in the short run in order to maintain their reputation for honest dealing. But concerns about security also complicate efforts to reassure partners by undertaking publicly observable commitments that, if violated, would undermine a government’s reputation. The details of most intelligence sharing agreements are kept secret from third parties. This makes it difficult for one partner to harm another’s reputation through an accusation of defection, since doing so necessitates revealing details about the intelligence that has or was supposed to have been shared.

The question remains as to whether the US would consider a judicial review of the intelligence—not the UKUSA intelligence agreement itself—to be a violation of the UKUSA agreement if it is part of a domestic judicial review rather than an investigation by a supranational or international court. The Foreign Secretary will not wait for an answer to that question. Defection is an issue of the state’s reliability at home and abroad. As the above table from Walsh’s study points out, the “transaction cost” is low because the US sees EU nations as trustworthy, reliable, and committed to achieving its same goals in the the War on Terror. After all, anything that could be a potential threat to the US could also threaten EU nations. From the nature of intelligence sharing and intelligence operations between the US and EU states, Walsh concludes,

. . . the gains that each state secures from sharing are larger than the expected cost of defection by the other state. Sharing should be straightforward to arrange here, and the participating states should focus on developing technical mechanisms—such as shared databases, common security procedures, joint training of personnel, and so on- that allows them to share information efficiently.

Applying this to the rendition program definitely extends to way more than collecting surveillance data: It is about the financial cost of deploying specially trained troops, training local armed forces (from law enforcement to paramilitaries), and sharing a defence apparatus. In short, allied states demand support not just from intelligence agencies but also from state departments, defence departments, and judicial departments—branches of the executive normally separated in their actions and subjected to different budgets.

Attempts to obtain documents related to CIA activities will fail outside of the US, whether they are pursued through legislative or judicial review. But the CIA never worked alone. A 2004 internal report requested by the Office of General Counsel acknowledge that the agency’s torture and rendition programs could not have worked as well as they did had so many other nations not collaborated so willingly. The extent of collaboration in Europe is staggering: Two reports—by rapporteurs Marty in 2006 and Fava in 2007—managed to track down rendition flights, prison names, and even the duration of detention. Most of what we actually know of the CIA’s torture program is in the possession of the EU Parliament and the European Court of Human Rights, where, in December 2013, Ben Emmerson referred to the program as “the largest international conspiracy.” Assuming that Sen. Dianne Feinstein holds and controls the only body of information regarding the torture program is a mistake. Collaborating agencies can disclose what the CIA will not, and nations in which the CIA operated can request it for review. If the CIA’s High-Value Detainee program simplistically could evade responsibility through extraterritoriality, it may have committed the expensive mistake of ignoring the importance future administrations in the countries where it operated would place on the right to truth.

What matters in the intelligence-sharing relationship is who in a bilateral agreement has the power, the control. Who has the resources, political and financial, to ensure compliance every step of the way. Who, in short, is the dominant state. Exercising the control principle on the UK front would result in controlled, lawful release of information about the CIA rendition program. That would imply that the UK is the dominant state in the US-UK relationship—that it has full sovereignty and dominance over its intelligence agencies and is capable of acting unilaterally and individually without asking for the CIA’s prior consent. In a paragraph cited above, however, Thomas presumes that violating UKUSA would be more damaging to the UK. That effectively means that the CIA controls the UK’s compliance in its counter-terrorism operations:

Dominant states must pay costs to manage a hierarchy as well. They must devote resources to closely monitoring subordinates’ compliance, to providing the benefits outlined in their agreement to share, and to punishing defection. For one state to effectively play the role of the dominant partner, it must control considerable political and economic resources of value to the subordinate state. Such power resources allow the dominant state to offer more valuable benefits and to more credibly threaten effective punishment when it detects defection. . . . Agreeing to . . . riskier forms of cooperation signals to the subordinate that the dominant state is reasonably secure that their hierarchical arrangement will work effectively.

Since UKUSA is still classified, the door is wide open for wild speculation on what the credible punishment can be in case of defection—or assimilated defection, should a Foreign Secretary fail to obtain a PII certificate like in the Binyam Mohamed case. More relevant, however, is the extent to which the UK and other states cooperated with the CIA’s torture and rendition program. Providing intelligence, detaching agents, deploying armed forces, and providing resources both material (planes, secure landings trips in airports) and political (corruption of governing agents to ensure silence, creation of prisons outside the legal system, interference and tampering with evidence during inquiries) all count as “riskier forms of cooperation.” As the dominant state, the US must be confident in its hierarchical system. But why? In order to answer that question, we need to see the UKUSA agreement.

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First page of the 1955 UKUSA Agreement, declassified in 2010. (3)

Can we look elsewhere for disclosure of CIA activities under the rendition program?

We also need subordinate states to exercise their own right of control. As long as the executive branch sees independent judicial review as a sign of defection, arguments like those put forward by the Foreign Secretary will always halt investigation and attempt to either scare judges into demanding release of information or maintain permanent confidentiality by creating closed submissions and closed rulings. If secret courts provide secret rulings on secret documentation, the end result will be the same—democratic accountability for violations committed by intelligence agencies will remain at absolutely zero.

Requesting accountability is a daunting, seemingly endless task. Patching together information on systematic and widespread human rights violations on each corner of the globe is a harrowing, Kafkaesque game of fill-in-the-blanks, with officials flat-out denying implication in the face of irrefutable evidence. And there is always the horrifying possibility of finding more than we dug for. Looking at the rendition and torture programs through a single national prism focuses only on a tiny portion of what that contains. Ultimately, it is a disservice to the hope for international prosecution.

Waiting for local judicial administrations to run their course, and fall on the desk of a judge with Thomas’s value system, may sound pointless. However, it might prove more effective than waiting for the US Congress to hold its previous administrations to account. If the EU Parliament reports were comprehensive enough to launch investigations into member-states, the path to figure out the extent of cooperation in nations still in denial is to find a way, through open justice, to release intelligence-sharing agreements. As LJ Thomas writes (emphasis mine),

[T]he confidentiality principle is indeed subject to the clear limitation that the government and intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so.

Although the Foreign Secretary accepts that the principle is not absolute, he contends that, having made his own examination of the overall interests of justice, the control principle should be upheld. . . . I have been unable to eradicate the impression that we are being invited to accept that once the Foreign Secretary has made his judgement . . . that should be that. However, although in the context of public safety it is axiomatic that his views are entitled to the utmost respect, they cannot command the unquestioning acquiescence of the court.

Some in both the UK and the US have put forward that any disclosure of any kind based on any value or principle, be it personal or enshrined in law, can’t justified because of national security concerns. It is however important to ensure that the exercise of open justice and national security are not mutually exclusive. No one in the business of holding intelligence agencies legally accountable for their actions has ever contended that national security is a baseless construct for the containment of outside insurgency dating to imperialistic times. Global terrorism is real, and threats exist. We have thwarted some, and we have avoided others. But in an era where the word “terrorism” has been rendered virtually meaningless from overuse and the phrase “national security” has been thrown at both congressional and judicial reviews to order members of government’s silence and assent, it is hardly radical to request thorough oversight of counter-terrorism operations. In fact, it is an act of patriotism that highly regards the safety and security of fellow citizens. State hypervigilance is never a sign of a healthy democracy or a transparent society. It is a sign of paranoia that conflates of security with the status quo. An independent legislative review complete with muscular courts can restore not only political normalcy with temporary derogations but also help disclose information safely and in the interest of domestic prosecution of government abuses.

The CIA torture program has encompassed so many administrations and requested the skills and assets of so many agents worldwide that its investigation cannot be restricted to the US. Other states in intelligence-sharing agreements with the US must replicate Thomas’s actions. Each and every one of these countries has various degrees of dominance and subordination with the US and can exercise the control principle to release information on their activities and CIA demands should the US never be able to release its report. When it comes to intelligence sharing agreements, the US will lose its position of dominance.

 

 

 

(1). The Gibson Inquiry’s report has proved unsatisfactory on many levels. On the subject of rendition, it considers that the Marty and Fava reports are inconclusive and facts are unchecked. As the Inquiry itself stated, “The report does not find facts or reach conclusions. It is based on the scrutiny of documents, no witness has yet had the opportunity to explain or add to this information”. It is, therefore, thoroughly incomplete. Sir Peter Gibson himself acknowledged the report raised just as many questions.

(2). In an ironic twist surely not lost on anyone, Dearlove was referred to as the UK’s “own Snowden” in July 2013, when he revealed being in the process of penning a book detailing the events leading up to the Iraq war from his own perspective. Given the stalled state of the Chilcot Inquiry, Dearlove’s book could be a bombshell. A year later, Dearlove then demands more oversight for MI-6 and MI-5 operations, right after Sir Mark, ISC, was summoned to the Home Affairs Committee.

(3). The history of UKUSA from 1943 to 1955 is now available on the NSA website since 2010. The full declassified .pdf is here – Cold War centric infographics that seem to imply UKUSA is a relic of McCarthyism are on the National Archives website.

Judicial activism and the right to truth: al-Hawsawi and Lithuania

Mustafa al-Hawsawi, 2012

Last month, an extremely important case hearing took place in Strasbourg, at the European Court of Human Rights (ECtHR). It detailed the collusion of the government of Poland with the CIA in creating a secret prison on its territory, in which prisoners were detained, interrogated, tortured, then shipped to the United States on unchartered flights before being detained again at the horrific naval base of Guantanamo Bay. The worst illustration of a lethal EU-US partnership in the so-called War on Terror was finally exposed, after much obstacles were removed. Lack of transparency, hyperclassification, judicial deference, protection of “vital foreign interests”, and the usual disdain for the basic fundamental rights of terror suspects have led to a considerable delay in trying the Guantanamo Bay inmates, but also to broadcast in a court of law the crimes committed by the nation states and their agents. In the fight against terrorism, counter-terrorism is also on trial.

The establishment of CIA black sites on European soil has been a profound source of shame, a delicate diplomatic issue. Yet a comprehensive document dating back to 2006, the Marty Report, commissioned by the European Parliament to investigate and assess the extent of member-states collaborating with the CIA , brought to light how massive the scale of cooperation has been. If the case of Poland has become a textbook situation for collusion –  from paying airport employees in cash to hide departing flights to the US, to refusing access to classified documentation to defence lawyers – it is important to keep in mind it is not an isolated situation. This week, Lithuania has managed to score a victory in its judicial battle within its own domestic courts, without the help of Strasbourg, in a case that highlights two fundamental difficulties and hurdles in the prosecution of the CIA torture program: not only had the Lithuanian prosecutor refused, twice,  to open an investigation into the prison located in the small village of Antaviliai, but all the information used to re-open the case was not governmental documentation at all – it was journalistic investigation made public that had allowed to provide new information.

Mustafa Al-Hawsawi is a Saudi national, currently detained in Guantanamo Bay as a high value detainee and faces trial by a military commission for his role as a financial backer of the 9/11 attack. He was captured in 2003 in Rawalpindi, Pakistan. According to him, he was then transferred to Lithuania where he was handed to US authorities, subjected to torture and disappeared – he would have remained in the secret prison for two whole years, between 2004 and 2006. It’s only then, in September 2006, that US officials formally acknowledged his detention at Guantanamo Bay. As a high-value detainee, Al-Hawsawi was at a much higher risk of torture than any other inmate, according to a report by the ICRC; later, Ben Emmerson, the UN Special Rapporteur on human rights while countering terrorism – who filed as a third party in the Abu Zubaydah v Poland case – reported, in 2013, that the situation of CIA black sites and the practice of extraordinary rendition for terror suspects involved 54 nation states total, from Lithuania to Morocco and from Poland to Thailand.

The forest on the road from Vilnius to Antaviliai, Lithuania

Thanks to investigative journalist Jason Leopold, we know much more about the arrest, disappearance, detention and torture of Abu Zubaydah than we could have ever hope to find if we had followed the often blocked, often stonewalled round of a traditional legal investigation. In the case of Al-Hawsawi, the road was paved with ill-intentions, over a five-year period: in 2009, an initial investigation into the case was made thanks to a report by ABC news, yet charges were dropped seemingly due to lack of evidence. Back then, Defense Minister Rasa Junkeviciene had released this statement:

“Prosecutors need facts. This is how I understand their decision. One shouldn’t forget that this is not only a Lithuanian issue, and if other states fail to give necessary information, or people who know something also don’t want to give information, then in fact it’s pretty hard to say something.”

Although this sounds logical and a fair assessment of how charges could be dropped in a case of serious violations of international law, this highlights the difficulty to access information when so much redaction, red tape or complete classification of material can not be accessible through the classic and regular means of transfer of information in a transnational case. It was obvious that due to the lack of compliance displayed by the United States at the time, further investigation into the lost two years of Al-Hawsawi’s life would lead to empty boxes, unaccessible documentation, or even possibly a request not to look further into this case. However, thanks to the ABC News report, the Lithuanian Parliament created a committee tasked with investigating the alleged CIA black site. And they found one. In fact, they found two. But those were empty, and there was absolutely no written trace, documentation, or evidence made available to them that any prisoners under any authority had been brought to those sites.

Former president Valdus Adamkus and former prime minister Algirdas Brazauskas, the executive authority in place at the time, denied any allegations. The investigation, which came to a screeching halt in 2011, had however unearthed some pretty disturbing evidence, that, linked to other similar cases of detention and torture at CIA black sites, could determine a pretty serious pattern of corrupting local officials, building sites in remote rural areas, and circumventing airport rules for flights to depart and land unsuspected. According to the Prime Minister, who took part in the committee:

The committee also said that five airplanes “linked to the CIA” landed in Vilnius and Palanga airports from 2002-2005, and on at least two occasions border procedures were bypassed with the help of high-ranking Lithuanian State Security officials.

As I wrote in December following the Abu Zubaydah hearing, which I attended, the facts of the case soberly enunciated by the lead counsel, Ms. Singh, illustrated one thing – that it would have been impossible for the CIA to have operated in Poland without national officials knowing about the site. In fact, as it was said then – “not only should Poland know, but Poland did know.” Ms. Singh recounts the different steps taken into the detention and rendition of Abu Zubaydah:

Singh insisted that Poland was not only guilty of facilitating the detention of Al-Nashiri, but also to actively cover-up US rendition flights, and not act under the law when they knowingly assisted the torture of the applicants. Payment of fees to CIA officials, extra bonuses in cash granted to Polish officials and airport workers who assisted in the cover up and departure of rendition flights  have all been documented by what the counsel asserted were credible sources, while Poland carried out claiming that bias from witnesses and anonymity of testimonies made them, apparently, unreceivable. Singh added, in a moment that sent a chill down the audience’s spine, that there had even been agreements between Polish and US officials as to the procedure to adopt should a prisoner die during the detention.

al-Hawsawi at his arraignment in 2008. (c) Janet Hamlin

If Poland appeared to have maintained a political facade since the case was first brought to its attention in 2008, things were not sailing smooth with Lithuania: the Foreign Minister resigned in 2010 over the black site investigation. Back then, President Grybauskaite had publicly acknowledged she knew about the presence of CIA black sites in the country, but following the Parliament report lacking information regarding prisoners, their identity, and travel dates to the prison, Usackas, then Foreign Minister, strongly dismissed all allegations that any torture site, CIA-operated or otherwise, had detained prisoners. Grybauskaite said she had lost trust in the members of her government at the time, and asked her Prime Minister to dismiss Usackas. Usackas, in turn, resigned from his position.

In 2011, Amnesty International obtained information that was relevant to the case and urged Lithuania to re-open an investigation into the secret prison. The claim made during the Abu Zubaydah hearing that an investigation into collaboration with the CIA was “politically inconvenient” echoes the case of Lithuania. It appears that the Parliament report should have consisted in enough evidence to either admit or dismiss the case in court. Since the report could neither assess the presence of prisoners nor the knowledge of executive officials at the time, counsel for Al-Hawsawi relied on investigative missions and victims’ testimonies to provide new information to the Court. The admissibility of this evidence was contested by the Prosecutor. In Poland, lawyers for the government alleged that media publicity and “interference” (sic) with the investigation had made it difficult to carry on in what they believe would be a consistent and objective manner; that NGOs were pressing an agenda on Poland to prosecute human rights violations they weren’t sure existed. The issue of transparency and the obtention of material outside the realm of the legislative inquiry or the executive’s agreement to disclosure is yet another pattern in the prosecution of CIA crimes. Disclosures, both prosecutors argued, are premature, and affect the course of the inquiry by being influential.

They’re influential because they expose the failure of the authority to comply with the judicial inquiry.

In the case of Lithuania, however, the prosecution failed short of upholding the important role of journalistic investigation and obtention of victims in the care of human rights-focused organisations. Says Joe Margulies, a professor of law at Northwestern and counsel for one of the victims, said in 2011:

“[t]he Prosecutor is trying to deflect blame for the failure of his investigation onto NGOs and the media. It’s ironic that an official investigation into a secret torture facility should claim to be thwarted because the media is insufficiently transparent.”

In September of last year, things moved at an incredibly fast pace. Basing their evidence on publicly available information such as EU Parliament reports, flight data gathered by NGOs Reprieve and REDRESS, the counsels submitted a new complaint calling for a new investigation into the detention of Al-Hawsawi. The complaint explained that a thorough and effective investigation had to be made to “secure evidence, seek clarification, seek urgent preservation and disclosure of all relevant evidence, and identify all officials involved in the alleged violations with a view of ensuring they are prosecuted.”

Ben Emmerson, QC

The importance and effect of publicly available information and thorough disclosure could not be stressed enough in this case. The similar that has emerged against Poland will pave the way for those that will surely follow. Ben Emmerson had re-affirmed his commitment to the right to truth as a universal human right and a cornerstone of the legal commitments binding on all member-states not just at the Council of Europe, but at the United Nations. From our piece on Abu-Zubaydah, again:

“the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society.” It may appear counter-intuitive, Emmerson continued, “to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.”

The month following the filing, the Prosecutor informed both NGOs that he refused to launch an investigation. They immediately appealed his decision. The EU Parliament in Strasbourg adopted a resolution on October 10, 2013 urging Lithuania to re-open an investigation into CIA black sites, in regards to 4 cases already pending at the ECtHR, and a fifth application made in a domestic court in Italy:

whereas Parliament has condemned the US-led CIA rendition and secret detention programmes involving multiple human rights violations, including unlawful and arbitrary detention, torture and other ill-treatment, violations of the non-refoulement principle, and enforced disappearance through the use of European airspace and territory by the CIA; whereas Parliament has repeatedly called for full investigations into the collaboration of national governments and agencies with the CIA programmes;

whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania’s involvement in the CIA programme if new elements emerge, but still have not done so;

Reiterates its call on those Member States which have not fulfilled their positive obligation to conduct independent and effective inquiries to investigate human rights violations, taking into account all the new evidence that has come to light, and to disclose all necessary information on all suspect planes associated with the CIA and their territory; calls in particular on the Member States to investigate whether operations have taken place whereby people have been held under the CIA programme in secret facilities on their territory; calls on the Member States concerned (France, Italy, Lithuania, Poland, Romania and Sweden) to respond to the letters sent by the UN Special Procedures;

In this staunchly strong-worded resolution, which urges member states to launch thorough and detailed investigations from government records to phone records, and even forensic investigations at the prison sites themselves, the EU Parliament follows a trend of transparency regarding the collaboration with CIA of EU member states, and has called on every member states not to just comply with recommendations and requests of the ECtHR, but also those made at the UN. The practice of rendition and black sites by the CIA is not an American concern; it is a worldwide concern, that must be addressed by all member states.
In spite of this call, the appeal was just as quickly dismissed.  Yet another one was made, in a remarkable show of consistency and perseverance in the pursuit of truth and justice – and this time, the Vilnius Regional Court upheld the demand for an investigation, and the case is now re-opened. The Regional Court claimed that previous dismissal by the Prosecutor General had been “groundless”.  Julia Hall, Amnesty International’s expert on counter-terrorism and human rights, was justifiably and understandably delighted with the news. The persistence of the counsel for Al-Hawsawi must be commanded. In a statement released shortly following the decision of the Vilnius Regional Court,
“The Lithuanian government and Prosecutor General must now open a full and effective investigation into Mustafa al-Hawsawi’s claims and ensure that any other individuals who have alleged that they were held in secret CIA detention there are afforded the same right.”
As of today, investigative journalist Jason Leopold, whose thorough body of work includes the obtention and publication of the diaries of Abu-Zubaydah, clearly detailing his arrest, detention, and torture, has filed a Freedom of Information Act (FOIA) lawsuit to obtain a copy of the Senate Intelligence Committee’s torture report and CIA activities, chaired by Senator Dianne Feinstein. This is the exact same report that Ben Emmerson asked to be released in this UN report from March 1, 2013; a situation he called “a pressing concern”.  After Leopold’s amended claim, a response came, a peculiar and unusual one: his request was denied; the Senator has “full control” over the report and its hypothetical release. The Court argued it had no jurisdiction over Leopold’s claim. The Senate’s torture report will not be released anytime soon.

Al-Hawsawi is still detained in Guantanamo. NGO REDRESS, represented pro-bono in the case, filed a motion on October 17, 2013 to submit against the classification regime blocking them from accepting complaints to third countries, hindering the investigations in the case, which amounts to a violation of his right to a fair trial. On November 27, 2013, the military judge denied the motion.

Gaslighting: the use of torture under Obama

On this most august and holy month of Ramadan, the coverage of hunger strikers at Guantanamo has taken on a whole new depth of human rights violations: piling over indefinite detention, military camp, inhumane detention facilities, we are now adding torture to the list. If abuse of prisoners at Guantanamo is sadly nothing new, the force-feeding of the hunger strikers has been widely documented. Yet, for some unfathomable reason, there is a debate on whether or not force feeding inmates chained to a chair through a nasogastric tube constitutes torture. Perfectly reminiscent of the very same kafka-esque “conversation” on the use of waterboarding as a interrogation method, it seems we are only collectively, nationally adding question marks at the end of simple statements because we refuse to believe they are true. We create subjectivity because well documented, legally astute facts become impossible to digest. This is what the Obama Administration has proved to be masterful at: the art of gaslighting.

Waterboarding was torture. In fact, it still is. There would be no need of undergoing the shock of seeing an intelligence agency’s nominee stating facts if it had been recognized as such when practiced. Beautiful, poetic euphemisms such as “enhanced interrogation techniques” or slightly more ominous ones related to “stress and duress” all refer to the use of prohibited actions taken against individuals, citizens or not, charged or not, in custody of law enforcement and/or military, worldwide. As time went on and the watch of human rights organisations progressed, the use of more subtle forms of torture – like the British “five techniques” – aimed at circumventing international law. When using different methods was not appropriate, playing on territoriality laws could easily be done with the practice of rendition. Torture is reprehensible; it sends the collective consciousness back to medieval times of Iron Maidens and witches at stakes and the drawing and quartering of Guy Fawkes. Here lies the problem though: those methods belong in a distant past, when humanity was devoid of empathy, bathing in the bloodshed of constant wars, and tyranny was the only political system we had known. Revolutions, Enlightenment and the Nüremberg Trials sought to give us rules to live by. But the practice perdures; we just label them differently.

The public was shocked by Abu Ghraib because the photos released were indeed images of an obscure, dark age of cruelty and systematic dehumanisation. The war in Iraq and abuses by US armed forces were said to be provoked by extreme duress suffered by soldiers under guerrilla warfare; under lack of proper training on interaction with civilians; and a seemingly absent accountability. Soldiers were extremely young, sent to a country they didn’t know fighting a war they didn’t understand facing an enemy they couldn’t identify using weapons they could not see. Abu Ghraib was horrifying in that it brought the public closer to the atrocities of war, the destruction of the human psyche, and the compartmentalisation of conflict. It was the brutality and senselessness of the Bush era; before him, war was supposed to be not just clean, but “just”, approved by international organisations and using sanctioned weaponry by highly trained military personel. The War On Terror™ reverted back to our most basic, primal instincts. When Obama took office, he swore to change; words like “transparency” and “accountability” were used. Obama, a Nobel Peace Prize, could surely not violate the CAT so close to the 25th anniversary of its signature. A constitutional law professor could surely understand the binding principles of international conventions. Besides, America had evolved as a nation; it was understood no one could possibly win the hearts and minds of foreign populations while capturing their citizens in the night and electrocuting them in the name of intelligence gathering.

But Guantanamo has always remained a dark stain on Obama’s lyricism on foreign policy. First claiming he would close to shameful and illegal military base, he let the movement simmer down and inmates fester. To this day, among 166 prisoners, around half have been cleared for release in 2009, yet still detained. The rest are still awaiting charges. The very fact that this system exists – and does so outside of the realm of civil law – is in itself a massive human rights violation. But the abuses are rampant, in a zone outside of continental America, guarded by military, where no visitation rights are granted, and the legal status of inmates is vaguely unknown. Enemy combatants, terrorists, aiding and abaiting criminals, whichever way you look at them, the very fact those appellations are created in a text that is a constitutional exception should raise all possible red flags. How could an isolated island away from the prying eyes of Judge Kessler and consorts could be free of any abuses? Accountability exists precisely because history has proven, again and again, that use of force left to its own devices never checks itself. It runs amok and destroys. And in the case of Guantanamo, it is destroying under our very eyes. Thanks to the relentless work of Guantanamo attorneys and journalists such as Jeffrey Kaye, Jason Leopold and John Knefel, consistent reporting has been made. It would be hard for anyone now to claim that they did not know. But when the narrative becomes too painful to bear, when the ghost of collective responsibility creeps in at every election, the easiest way to cope with the deafening silence on the part of your chosen political champion is to… Change the narrative.

Because the most current example of double standards and political consciousness hypocrisy concerns the issue of state surveillance – intolerable under Bush but somewhat necessary under Obama – lets apply the same technique to the use of torture in a democratic society that is only supposedly at war in two countries. Waterboarding was severely decried under Bush by Democrats and other liberals; it was unacceptable, and Matthew Alexander had released an incredible and courageous book on the possibility of using alternative, legal interrogation methods in conflict zones. There seemed to be consensus – at least in places other than the far right and John Yoo’s offices – that torture was not only inacceptable, but that it was perfectly avoidable. But instead of understanding human rights law as a legal blanket of protection over all citizens, we legally created exceptions, and this rhetoric has persisted and bled into Obama’s foreign policy. It is not acceptable to torture, UNLESS: it is unacceptable to indefinitely detain someone without charge, UNLESS; it is impossible to waive Miranda rights, UNLESS; it is illegal to use military force in foreign lands without declaring war, UNLESS. This string of constitutional and international exception has morally – even if definitely not ethically – plagued the Obama Administration since it took office. And no place is more glaringly and obnoxiously standing in the face of the international rule of law than Guantanamo.

Kristine Huskey, from Physicians for Human Rights, testified at the time of the hunger strike:

Severe and lasting psychological trauma … caused by chronic states of stress, anxiety and dread, because these people at Guantánamo don’t know if they’re going to be released, if ever … all of this uncertainty and uncontrollability causes extreme stress on the immune system, the cardiovascular system. It leads to asthma, diabetes, gastrointestinal disorders, spread of cancer, viral infections, hypertension, depression, suicide, PTSD.

A hunger strike is a destructive and dangerous way to make yourself heard; but it has been the tool of the oppressed and desperate political prisoners for centuries, from South Africa to Northern Ireland. Most often these hunger strikers had nothing left to lose. They sought attention from the international community to shed a light on their plight. What a hunger strike means to convey is that the striker will willingly risk his or her life because his or her liberty is more valuable, especially if it benefits the collective in the long term. Guantanamo prisoners have nothing left to lose. They were deprived of their most basic rights under domestic and international law; they are detained for no apparent or declared reason; they know not of when their ordeal will cease; they are subjected to arbitrary abuse by armed forces which legitimacy to act is severely questioned. So, they are letting themselves die. But because the perspective of the death of an inmate in illegal US custody is a legal black hole the administration refuses to fall into, those inmates are now force-fed; put simply, nutrition is forced inside their body cavities, against their will, in the attempt to keep them alive. To save face. And this, in itself, is an act of torture. Self-inflicted starvation is destruction; medically supervised force feeding is torture and a sick twist on the Hippocratic oath. Several statements have been released against the force-feedings. And the irony of the holy month of Ramadan implying fasting until sunset means the force feedings will take place at night, in a disgustingly cynical display of pseudo respect of the inmates’ religion. There is no such thing as torturing a man according to his own religious rites. This is a farce.

Force-feeding has been declared as a form of torture and prohibited medical behavior in detention facilities by the Declaration of Tokyo, article 7; it has, of course, been classified as torture by the United Nations Commission on Human Rights (UNCHR). The textbook reference on torture in democratic societies, compiled by Darius Rejali (1), classifies three models on the use of torture: the national security model, the juridical model, and the civic discipline model. On the topic of national security, referring to France and its control of French Algeria, Rejali explains:

What is important here is that democratic institutions were unwilling or unable to stop the turn to torture. One after the other, the judicial system, the legislature, the opposition parties, and the press failed. The police and military soon operated outside the law. In effect, they formed a closed state within the state. The military used its privileged position to establish covert torture, delay investigations, shape information, recruit political allies, and mobilize public opinion for the war. (…) In the National Security model, as France suggests, officers practice torture as part of a proactive strategy to combat an enemy in an emergency. Victims may be locals or foreigners, but they are always chosen because of their suspected political activities.

I understand terrorism is scary and may tear away at one’s sense of safety. I understand war has become a distant, professional occupation that hardly affects the general population. I understand that the fallacy of a democracy Bush put the country through for eight years needed to be changed; I saw the glimmer of hope in people’s eyes when Obama was first elected in 2008. I saw the desperate need to believe again, to hold onto a sense of security, that we would all be alright, that sanity had been restored and fear would no longer prevail. But this is over. No matter how much we try to believe our elected leader would just never sign on an individual’s torture before lunch, it is happening, and it is our collective responsibility to hold him accountable. From renewing the Patriot Act and adding new provisions; signing NDAA; not interrupting the PRISM program; and using JSOC all over our blue planet, the current foreign policy is dangerous. Do not mistake torture for what it isn’t: simply an enhanced, supersize version of interrogation. Do not believe torture is an acceptable exception (and certainly do not believe it is suddenly legitimate because it has been ordered by warrant). Do not believe torture is anything anyone deserves, under any circumstances. Human rights law has been created and enforced under the belief there is such a thing as an absolute in natural law – that unless we created a legal framework every nation would abide by with a goal to protect everyone from the horrors we suffered in the past, there would be no end to the pain we would inflict and would then receive as a result. Torture has never saved lives; it destroys them. Torture has never freed lives; it chains them. Torture is a degrading easy way out serving sociopathic purposes when acting alongside basic rules of human decency, empathy and righteousness has lost its meaning. A nation who tortures,  a nation that kills is a nation that has little left as a collective conscience.

(1) Torture and Democracy. Rejali, Darius. Princeton Press, 2007.