700-Year History Of Double Standards On Torture

Apparently unequivocal denials won't wash as long as ministers are able to dodge the crucial questions of complicity

By Afua Hirsch
Tuesday 4 August 2009 21.30 BST
Courtesy Of The Guardian

There is nothing new about British officials condemning the use of torture in unequivocal terms. "The illegality of torture in England has been a subject of boasting among Englishmen for more than five centuries," wrote Harvard law professor Lawrence Lowell in 1897. The rejection of torture as a sensible means of establishing guilt dates even further back, to at least the 13th century, when a distinction was recognised between "truth by revelation" (extracted by priests) and "truth by discovery" (based on rational principles).

But when it comes to the use of torture by foreigners, the story gets more complicated. When Edward II authorised the "interrogatory torture" of the Knights Templar in 1311, for example, following a request by the pope, he refused to do so with reference to English law. The Knights Templar were tortured anyway, and no doubt it made little difference to them which legal system had authorised the warrant. It is hard to avoid the conclusion that the medieval king was performing a delicate operation to preserve the upper moral hand of English law.

Methods of torture appear to have advanced remarkably little over the years, which makes the current allegations of British complicity with the pulling of fingernails, or the applying of razor blades to genitals (this time to terrorist suspects rather than renegade knights) all the more reminiscent of similar double standards 700 years ago.

The debate raised by the current allegations against the British state is easily clarified by ruling out what it is not about. The accusation is not that British agencies – unlike their US counterparts – directly inflicted torture. The crucial questions are not about whether the government should reject, in principle, intelligence that may have resulted from torture and questioning by foreign intelligence services without British knowledge. That question – also of substantial importance – is for another day.

The government does, however, need to answer questions about its current policy where torture has been conducted by someone else first – the Pakistani and Moroccan intelligence services appear to be favourites – and British agents have subsequently, directly or indirectly, put questions to the suspect.

Various decoys have been employed by ministers to avoid answering this question. One is where a minister is questioned about complicity, and responds with a blanket denial about torture. "Torture is abhorrent to the British government, and it is abhorrent to our security services," the foreign office minister Ivan Lewis said repeatedly today . But we knew that already. It does not answer the question.

Another means of avoiding the question is to refuse to appear in the first place. David Miliband has appeared before the intelligence and security committee – appointed by the prime minister – and the foreign affairs committee, from whom a report is expected, though little is anticipated. He and other senior ministers have, however, refused to appear before the joint committee on human rights. The cross-party group, which today called for an independent inquiry into the allegations, is widely respected – primarily because it is able to obtain answers to difficult questions from reluctant ministers.

A third tactic is to produce and publish new guidance for officials and agents, thereby seeking to nullify claims that intelligence services have been operating with insufficient transparency or accountability. But this raises more questions than it answers, since it is known that a previous policy existed, and – if the government position is as straightforward as claimed – why can't the previous version be published too?

There is a fourth response. In a modern world with transnational terrorist threats, the government reasons, it can prove impossible to avoid co-operating with states who have blemished human rights records. In each case, the argument goes, a complex balancing act is conducted between protecting human rights and protecting civilians from terrorist threats.

This is a false dichotomy. The fundamental problem facing the intelligence services is that the more successful they are, the less we know about their work. They undoubtedly deal with dangerous individuals and they do so with a degree of moral authority, and a mandate to protect Britain and its values. As a former president of the Israeli supreme court, Aharon Barak, put it: "A democracy must often fight with one hand tied behind its back." But, in retaining that moral authority, he added: "It nonetheless has the upper hand."

The only thing that has emerged clearly from allegations of complicity with torture – detailed on numerous occasions by the Guardian – is that the government has not changed its understanding of the law (torture is illegal) or its policy (Britain abhors it). This glosses over the steadily mounting list of specific allegations regarding much cloudier instances of collusion, and those questions must be answered. Otherwise – as a judge who knows a thing or two about terrorist threats might say – Britain will be fighting with two hands tied behind its back. It's difficult to see how national security could benefit as a result.