Tory-Speak on the Torture Inquiry

I seem to be one of the biggest skeptics about the torture inquiry David Cameron announced this week. Among other things, I worry that Cameron intends to pressure plaintiffs who allege they were tortured into a mediated settlement to prevent more details of their torture from coming out. So I wanted to look at Cameron’s full statement about the inquiry for clarification.

Unfortunately, Cameron doesn’t offer any clarity on that key point: while he makes clear that the inquiry won’t start until “we’ve made enough progress,” he doesn’t specify either what “enough progress” is, or the precise role the government will play in mediating suits.

We can’t start that inquiry while criminal investigations are ongoing. And it’s not feasible to start it when there so many civil law suits that remain unresolved.So we want to do everything we can to help that process along. That’s why we are committed to mediation with those who have brought civil claims about their detention in Guantanamo. And wherever appropriate, we will offer compensation.

As soon as we’ve made enough progress, an independent Inquiry will be held.

His office’s summary is barely more specific.

The Government is committed to a mediation process with those who have brought civil claims about their detention in Guantanamo;

Though my suspicion does seem to be correct on one point: the call for mediation reflects a preference to solve these legal questions outside of the courts and therefore out of public view.

As for one of the other key questions about the inquiry, Cameron appears to say the inquiry will examine not just whether Brits ordered up torture, but also to what extent the government knowingly accepted information collected using torture–the question that Craig Murray has pushed.

It will look at whether Britain was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11. And if we were, what went wrong, and what do we need to do to learn the lessons.

So the inquiry will need to look at our security departments and intelligence services.

Should we have realised sooner that what foreign agencies were doing may have been unacceptable and that we shouldn’t be associated with it? Did we allow our own high standards to slip – either systemically or individually? Did we give clear enough guidance to officers in the field?

Was information flowing quickly enough from officers on the ground to the intelligence services and then on to Ministers – so we knew what was going on and what our response should be?

That said, Cameron also seems to know the answer to the last question–what the UK’s response to learning of torture should be. The answer? Whatever the Ministers say it should be.

That’s why today, we are also publishing the guidance issued to intelligence and military personnel on how to deal with detainees held by other countries. The previous Government had promised to do this, but didn’t. We are.

It makes clear that:

One – our Services must never take any action where they know or believe that torture will occur.

Two – if they become aware of abuses by other countries they should report it to the UK government so we can try to stop it.

And three – in cases where our Services believe that there may be information crucial to saving lives but where there may also be a serious risk of mistreatment, it is for Ministers – rightly – to determine the action, if any, our Services should take. [my emphasis]

That is, even while announcing this torture inquiry, Cameron is saying that that the response that the Foreign Office gave Craig Murray when he raised torture concerns–that he didn’t understand the moral trade-offs that Ministers make…

I gave Craig a copy of your revised draft telegram (attached) and took him through this. I said that he was right to raise with you and Ministers (Jack Straw) his concerns about important legal and moral issues. We took these very seriously and gave a great deal of thought to such issues ourselves. There were difficult ethical and moral issues involved and at times difficult judgements had to be made weighing one clutch of “moral issues” against another. It was not always easy for people in post (embassies) to see and appreciate the broader picture, eg piecing together intelligence material from different sources in the global fight against terrorism. But that did not mean we took their concerns any less lightly.

…is precisely the answer he wants, too. If the Prime Minister or Foreign Minister say it’s okay to look the other way while close friends torture British citizens, then it’s okay, I guess.

Particularly with that in mind, I was particularly interested in this dogwhistle Cameron included twice in his speech.

In the past, it was the intelligence services that cracked the secrets of Enigma and helped deliver victory in World War II. They recruited Russian spies like Gordievsky and Mitrokin and kept Britain safe in the Cold War. And they helped disrupt the Provisional IRA in the 1980s and 1990s.


Mr. Speaker, as we meet in the relative safety of this House today, let us not forget this. As I speak, al-Qaeda operatives in Yemen are meeting in secret to plot attacks against us terrorists are preparing to attack coalition forces in Afghanistan the Real IRA are planning their next strike against security forces in Northern Ireland and rogue regimes are still trying to acquire nuclear weapons. [my emphasis]

Yes, I realize the Real IRA are an ongoing threat. Yes, I realize Cameron may have fear-mongered about Northern Ireland because of very crass domestic political considerations. But the mention of the IRA injects a real circularity into the process by which British Ministers decide its morally okay to use information the US got using torture.

As I’ve noted before, our torture architects approved two techniques they did not specifically source to SERE: the use of insects and wall standing. Wall standing was a technique the British used in Northern Ireland–a technique that was central to one of the court cases John Yoo used to authorize torture. Granted, the UK publicly swore off wall standing before the intelligence work from the 1980s and 90s that Cameron celebrates here. Nevertheless, with the apparent ongoing stance that British Ministers will decide if they get to use information we elicited through torture–including wall standing, I find it rather notable that Cameron invoked not just al Qaeda, but also the IRA as the enduring threat that justifies such a stance.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. bobschacht says:

    Thanks for taking this on, EW, and for helping us read between the lines.

    At least the Brits are addressing the issue in a more public manner than we are. Oh, yeah, there’s the Durham inquiry, with a report now finished…?
    I’m listening, but I don’t hear anything– not even a squeak.

    Perhaps there’s a pause while Margolis cleanses the report and exonerates everyone. Business as usual.

    Bob in AZ

  2. earlofhuntingdon says:

    You are right to be concerned. There is little yet to distinguish this inquiry from elaborate damage control.

    There seems little traditionally conservative about the new British government. Secrecy is likely to be the outcome of any mediated deal. That would meet one of both this government’s and the US’s principal concerns, that word not leak out, be confirmed, or form part of the permanent public record of their excesses and criminal wrongdoing.

    Aiding and abetting torture seems nearly as heinous as having one’s hands on the thumb screw, the shackles, and the rack. Allegations of such things are bad enough; court decisions confirming and making it part of the permanent public record, are another matter entirely.

  3. earlofhuntingdon says:

    “IRA” references by a PM are very much a dogwhistle. They seem equal parts fearmongering and constructing defensive tactics to use against credible violent threats. Ironically, it is British actions against the IRA in decades past the generated Britain’s most egregious miscarriages of justice and non-colonial violations of civil rights.

  4. skdadl says:

    The inquiry will not call foreign witnesses, will not compel individual testimony, and will not summon testimony from former ministers, beginning at the top (meaning Tony Blair). Nor will it establish legal liability. Those conditions make me wonder what kind of limits will also be placed on documents, certainly on their publication but probably pre-emptively anyway. Really: what’s left?

    The “mediation” process is puzzling to me too — I mean, how do they speed that along except by blackmailing people, making clear to them that compensation will be commensurate with co-operation?

    The criminal investigations are real, though. Maybe I’ve lost track, but I think there are two agents whose testimony has already made them the suspects, and I don’t see how evidence in their cases can be suppressed. But what do I know.

    The IRA — yes, a dogwhistle to a number of groups in the UK and just generally to an old culture of bigotry towards the Irish. These people have no shame.

  5. playfyte says:

    Two things are clear here. Torture is against the law both internationally and here in our country. There are many documents that are clear on the subject. Laws prohibit it. PERIOD!! If the Bush administration sought the advice and opinion of Alberto Gonzalez on the matter, then, it was a conflict of interest asking him because as their “Lawyer” he was going to look out for their positition and interests. It will not matter if they were to say that they were not sure or that they didn’t know. One thing is true. Ignorance of the law in NO excuse. This is a rule that applies in any court in our country to any citizen of our country. What does it mean when it is said that no one is above the law?? He was the number one representative of our country, so, what ultimately happens at the conclusion of this investigation will say a great deal about what type of people Americans are.

  6. Jeff Kaye says:

    You’re onto the circular logic they are using to justify torture, but there’s a missing piece – via the whole IRA/Five Techniques issue. What you need to add is that in the European Court case judging on the Five Techniques (which included wall-standing, hooding, sensory overload, sleep deprivation, and deprivation of food and water) did NOT rule this was torture, but instead was cruel and inhuman treatment. Why is that important? Well, because of the fuzzy space that cruel, inhumane and degrading treatment plays in the U.S. “Reservations” to CAT, and in the delimitation of 8th amendment violations.

    In Britain, it’s even another story, as my article on the UK torture inquiry noted the other day, coming off reporting at the Daily Mail:

    Another outstanding demand [by UK Reprieve] is that the government produce the old, secret official policy that governed UK intelligence agents. The new policy, itself recently published, still allows unnamed “ministers” the ability to approve “cruel, inhuman or degrading treatment or punishment”: “…a wide spectrum of conduct and different considerations and legal principles may apply depending on the circumstances and facts of each case.” What, Reprieve asks, were in the old rules, if these are the new rules? Any real inquiry would make this public.

    So this is not just that Cameron wants the answer that the old regime gave Murray, this is actually written into the new rules for intelligence agencies in Britain, known as “The Guiding Principles”. The key is that they label the abuse CIDT and not “torture.” Of course, it’s a distinction without a real difference, but important to them. Still, even CIDT (in the form of the Five Techniques) was found to be a violation of the European Convention on Human Rights, Art. 3, Paragraph 3. Even more, at the European court, 1978:

    At the hearing before the Court on 8 February 1977, the United Kingdom Attorney-General made the following declaration:

    “The Government of the United Kingdom have considered the question of the use of the ‘five techniques’ with very great care and with particular regard to Article 3 (art. 3) of the Convention. They now give this unqualified undertaking, that the ‘five techniques’ will not in any circumstances be reintroduced as an aid to interrogation.”

    Obviously, they’ve changed their minds. As Reprieve notes, we need to have declassified the “old rules” to see exactly what the instructions were to the intel agents (which we already have some idea from the Murray emails).

    • Mary says:

      There’s a whole boatload of things that, in the overall conversation, are worth noting about the European Human right court case, Ireland v. UK

      First off is the fact that the case first went to a Commission and it was pretty much the unanimous opinion of the Commission that the five techniques were torture. Not only that, but when the case went to the Court on Ireland’s application, the UK did not object to the Commission’s designation of the 5 techniques as torture. (The dangers of appealing too much) Also, there was a significant dissent. Also, the Commission and Court made findings as to acute psychiatric disturbances which arguably met the definition under the US torture statutues.

      Also – because case law is very fact driven – it’s worth noting that the Commission and Court made their rulings on the understanding that the five techniques had been applied in the cases before them for “hours.” Not days, not days repeated over and over through months and into years. Their rulings about the 5 techniques are based upon their determination that these were techniques applied during the interrogation detentions that had, under the relevant statutes, durations that were limited by law to days (not under the indefinite detentions of other provisions).

      So they were finding that in a setting where detention was limited to a few days by statute, these thing happened for hours during that limited duration period.

      For example:

      T 6 and T 13 were arrested on 9 August 1971 during Operation Demetrius. Two days later they were transferred from Magilligan Regional Holding Centre to an unidentified interrogation centre where they were medically examined on arrival. Thereafter, with intermittent periods of respite, they were subjected to the five techniques during four or possibly five days; neither the Compton or Parker Committees nor the Commission were able to establish the exact length of the periods of respite.

      The Commission was satisfied that T 6 and T 13 were kept at the wall for different periods totalling between twenty to thirty hours, but it did not consider it proved that the enforced stress position had lasted all the time they were at the wall.

      Nowhere are there the kind of factual allegations that exist in the US cases, with respect to days of sleep deprivation to the points of hallucinations, walling, stress positions maintained over very long periods and by people who had prosthetics taken away and were being deprived of medical treatment, palestinian hanging with significant edemas, etc.

      So when the court says that what it was opining on – several hours over a limited period of days – was inhuman treatment, it is also saying that torture is in essence, an aggravated or more intense instance of cruel, inhuman or degrading treatment or punishment.

      This, too, is why no one wants the facts to begin to be compiled and shared. Not becaues those facts form some kind of “defense” for the intelligence services involved, but rather because they show extreme aggravation of circumstances that are already inhuman.

  7. Mary says:

    Cameron basically is saying that courts are the enemy; publication of information about torture is the enemy; but Britain can restore it’s reputation for “human rights, justice, fairness and the rule of law” by secret meetings intended primarily to protect “partnerships” and by enacting legislation so that court cases won’t be able to give recourse for criminal activities involving intelligence entities and Britain’s “partners.”

    The fix is well and truly in.

    When I read, “The services can’t disclose anything that’s secret in order to defend themselves in court with confidence that it will be protected.” I nearly laughed out loud.

    The problem for the services there – as here – is that the things that are being kept secret aren’t things that make for a defense. And that’s why they are so upset about disclosing. If the disclosures actually provided them with defense, they would find plenty of ways to make it non-secret and, to be fair, courts hearing the info ex parte would be very inclined to work with them if the disclosures operated as a defense.

    The problem is and has been that the disclosures show criminal activity that had no underlying exigency and no ultimate defensible goal. So to pontificate that the poor intel agencies can’t defend themselves because they don’t know if the *secret* stuff they disclose which DEFENDS them “will be protected” is ridiculous.

    Their problem, to the contrary, is that they are worried that the secret stuff which is evidentiary of their guilt can’t be protected.

    And when he went on with, “There are also doubts about our ability to protect the secrets of their allies and stop them from ending up in the public domain.” I did laugh.

    Yeah – that’s what the torture conventions and geneva conventions and common law protections have always been all about – making sure that your allis can violate the law and you’ll be able to help them keep it covered up.


    • emptywheel says:

      Oh, shoot, I meant to quote that passage too! Of course: just as in warrantless wiretapping, the poor complicit parties can’t present evidence. Only, we saw in Mohamed’s suit what that evidence really showed.

      • Mary says:

        That’s what keeps happening over and over.

        I have to say – as much as I would like to be in the “never, ever” category on torture, I wouldn’t rule out a particular situation on particular compelling facts where I’d maybe find some kind of affirmative defense; but the compelling facts are never being presented. Just a lot of sadistic venting and political opportunism.

        • earlofhuntingdon says:

          It seems to be like tasering; the one-off circumstance where its use might be arguable, justifiable if still illegal, is overwhelmed by mundane use as a right of passage – like a new manager’s first round of firings – and as a way to vent one’s fear, frustration and rage. No wonder it was Dick Cheney who was the prime mover in making it government policy.

  8. Jeff Kaye says:

    So when the court says that what it was opining on – several hours over a limited period of days – was inhuman treatment, it is also saying that torture is in essence, an aggravated or more intense instance of cruel, inhuman or degrading treatment or punishment.

    What you say is totally true, and it’s very helpful to know more about the history of the decision. But then how do we have the “new rules” on interrogation for the Brits allowing for CIDT on a case-by-case basis, by ministerial approval, as EW, DM and others point out?

    • Mary says:

      I’m late to meet someone, but basically, they wouldn’t be able to sell that to a court like the 5 techniques court. One of the specific findings IIRC of the Commission and Court was the hundreds of arrests and terrorist acts etc. actually resulted from the torture/inhuman treatment in those cases, and it was still deemed illegal.