When late last year the US Senate Select Committee on Intelligence published parts of its 6,700 page report on the CIA’s detention and interrogation programme, it shed light – remarkable light – on how the ‘war on terror’ had been conducted by the US for some time.
It very rightly prompted questions for this country. The most immediate and top level question was, if that is what the US did, what did Britain do? But one need barely scratch the surface of the matter before encountering some difficult questions about method – how do we find out what Britain did? – and about scrutiny – are there lessons to be learned about oversight and accountability?
We review here some of the expert opinions and highlight five issues that, if the experts are right, are likely to lie at the heart of debate for some time to come.
Early this month the Bingham Centre for the Rule of Law convened a public event that asked an expert panel to consider these issues. Headlining the event was Sir Malcolm Rifkind QC, until recently Chair of the Intelligence and Security Committee of Parliament. He was joined by two lawyers, Sapna Malik from Leigh Day and Clare Algar from Reprieve (both of whom had represented Guantanamo detainees), and John Gearson, former Ministry of Defence adviser and now Professor of Security Studies at King’s College London. Sir Daniel Bethlehem QC, former principal Legal Adviser to the Foreign & Commonwealth Office, chaired the event.
The panel was asked to consider three issues: the extent to which the SSCI Report contributes to our own body of knowledge about detention and interrogation programmes, the appropriate response for the UK Government and Parliament to the findings of the Report, and mechanisms for accountability and oversight of UK counter-terrorism law and practice.
While a detailed summary of the presentations and Q&A is available on the Bingham Centre website, and panellists’ views varied in scope and perspective, to our eyes five points stood out among the many matters discussed.
- Torture affects the tortured and the torturers. The Senate Select Committee’s Report (SSCI Report) not only focused on harm to/impact upon detainees as a result of enhanced interrogation, but it also demonstrated that negative effects were felt by the CIA agents who were involved in the torture programmes. In particular, the account of Abu Zubaydah’s treatment demonstrated both the effect of torture on Mr Zubaydah and its effect on agents/officers involved in it, and their internal opposition to what was happening.
- There are substantive questions that remain unanswered in the UK. The panel agreed that several issues in the UK public domain remained to be investigated: the questions raised in Sir Peter Gibson’s Detainee Inquiry report; the extent of UK knowledge of the use of torture techniques; the monitoring and treatment of detainees involved in operations with the US; UK involvement in rendition programmes; and the extent to which UK officials may have been complicit.
- There was little agreement about the best method for finding answers to those unanswered questions. In particular, there was disagreement about whether a judge-led inquiry or the Intelligence and Security Committee of Parliament (ISC) would be more effective. It was noted that the ISC has been criticised in the past, for example, in relation to the Binyam Mohamed case where the ISC did not discover some relevant evidence and nor was it given that evidence. This led to claims that it had been misled by MI5. However, under the Justice and Security Act 2013 the ISC acquired new powers: intelligence agencies cannot refuse to provide information, the ISC can enter premises at Thames House, GCHQ, Vauxhall, etc., to examine information; and the ISC has oversight of operations in addition to policy, resources, and administration. These changes could arguably remedy the earlier shortcomings, though considerable doubts were still expressed about whether they were sufficient to make the ISC an adequate and appropriate investigatory body. On the other hand, a judge-led inquiry would have the advantage of independence, and the perception of impartiality, plus the ability to compel witnesses. However, there was still no certainty that a judicial vehicle would solve all concerns.
- Context does not mitigate or excuse lapses in oversight, accountability or legality, but an examination of context is important because it helps us understand policymakers at the time. The context of the situation from a policy perspective was discussed, to better understand the actions and strategies – including the failures and wrongdoings – adopted in responding to terrorism. It was suggested that desperation and lack of knowledge of the intelligence agencies concerning the nature, threat and the appropriate response contributed to the intelligence-gathering policies. Professor Gearson’s contribution from a non-legal perspective added value to the legal discussion and highlighted that, although an understanding of context is clearly of great importance, context should not – the point is worth restating – serve as a mitigating factor used to excuse lapses in oversight, accountability or legality.
- While the ISC or an inquiry should be able to look effectively at what happened in the past, there is not presently an adequate mechanism for operational oversight of current ongoing activity. Oversight and accountability of ongoing activity featured prominently in debate by the panel. Among the issues raised were the role of the media in uncovering information, whether the investigations themselves are too politicised to be truly independent, and how oversight sits with the “five eyes” intelligence system when allies (Australia, Canada, New Zealand, UK, US) have different moral and legal contexts to their powers.
Prior to an inquiry in the UK, we must first await the conclusion of a number of pending criminal investigations. It remains to be seen whether an inquiry will be judicial in nature or handled by the ISC, or indeed if such an inquiry will be held at all.
But whatever the answers to the substantive questions that remain for the UK, it is very clear that questions about how we will find out about Britain’s conduct – past and present – are profoundly important, but there is little agreement about how they should be answered.
The full summary of the Bingham Centre event is available on the Centre’s website.
Justine Stefanelli and Lawrence McNamara are Research Fellows at the Bingham Centre for the Rule of Law. Jack Kenny is an intern at the Bingham Centre.