Examination of Witnesses (Question Numbers
20-39)
KATE ALLEN,
CLIVE STAFFORD
SMITH OBE AND
BENJAMIN WARD
10 JUNE 2009
Q20 Ms Stuart: May I ask you the
next question, which is whether the intelligence officers on the
ground are sufficiently aware of the UK Government's attitude
or policy approach to torture? You clearly imply that you have
seen the previous ones.
Kate Allen: No, I am not implying
that at all. I don't know if anyone else has seen them. I certainly
have not seen them, so it would be interesting to know what that
guidance was. Also, beyond the guidance, what is the means of
ensuring that that guidance is implemented and what is the scrutiny
that goes with that? I think that there has been a lack of absolute
rigour around these issues. There is, absolutely, a role for this
Committee and Parliament to play in asserting that rigour.
Benjamin Ward: Perhaps I should
also mention that at the moment there are apparent loopholes in
the Criminal Justice Act 2003, as it relates to the prosecution
of torture, and in the Intelligence Services Act 1994, which appear
to immunise torture and other criminal acts—in the case
of the Intelligence Services Act—if they are carried out
with Government authorisation. The UN convention against torture
contains no such exception. As Clive said, Governments are under
an obligation to prosecute torture wherever and by whoever it
is committed. Indeed, there is a further obligation on states
to take positive measures to prevent torture anywhere in the world—that
is a norm of customary international law. To take a step back,
we question why the Government feel the need to assert the right
to use material obtained under torture from third countries. If
that is the public position of the UK, we question whether the
messages that are being sent to the Governments with which the
UK has intelligence relationships are sufficiently clear about
the abhorrence and condemnation of torture that the Government
profess.
Q21 Ms Stuart: May I ask Mr. Stafford
Smith—you have not seen the guidance either?
Clive Stafford Smith: I haven't
seen it, but I suspect we shall be reading about it fairly soon.
I would think that you should certainly get to see it.
Q22 Chairman: I have several people
wanting to come in, and I am also conscious that we need to move
on to some other areas. I want a factual answer to the reference
to Pakistan. Is there any information that you can give us about
whether the ISI has changed its behaviour with regard to people
it detains in recent years, or whether the allegations relate
to four or five years ago as opposed to now?
Kate Allen: No, the ISI modus
of operation has not changed.
Clive Stafford Smith: It is not
just the ISI. ***. Torture is rampant among the police as well.
The Foreign Office has told me that, in our conversations.
Q23 Chairman: It is just that
we had Mark Malloch-Brown before us about 18 months ago, and we
specifically asked questions around that area. I wanted to get
your view. My other question—quickly, factually—is
about the US Army field manual, the permitted techniques, which
we referred to in a previous inquiry. The Americans talked a great
deal about it—what was permitted and what was not. We know
that there is a different definition of torture in the US from
in the UK. Waterboarding was permitted, but the UK says it is
a form of torture—it now says, anyway, that it is a form
of torture. Is there a comparable document, to your knowledge,
in this country about what interrogation techniques are permitted,
as opposed to not permitted, and about what would and would not
be defined as torture?
Benjamin Ward: I don't know. I
assume that that is the content of this guidance that is being
reviewed by the Intelligence and Security Committee at the moment,
but I don't know.
Ms Stuart: We have, and it is called
PACE—the Police and Criminal Evidence Act 1984.
Q24 Sir John Stanley: My question
comes, entirely coincidentally, but more or less straight out
of what the Chairman has just asked you. It is an issue in relation
to torture that arose during our Guantanamo Bay inquiry. How satisfactory—not
under national law, but under international law—is the legal
definition of what constitutes terrorism? Are there any changes
in that definition that you would like to see made?
Clive Stafford Smith: I think
that that is a very good question. There really was not a proper
definition. One of the issues that we dealt with in Guantanamo
Bay was the ex post facto retroactive application of the definitions
under the Military Commissions Act, which was enacted on 30 April
2003, to create the crime of terrorism as a war crime. It did
not exist before then. Consequently, if we ever got in front of
a serious court, none of the convictions out of Guantanamo could
possibly stand up, because that would be retroactive and cannot
be done. I don't think that we have a proper definition of that
internationally nor do I think that we have a proper definition
of conspiracy internationally, which is the basis on which almost
everyone gets charged.
Q25 Sir John Stanley: So you are
saying to us that, under the UN convention against torture, in
so far as the matter is defined or not defined there, it is inadequate
in respect of definitional purposes.
Clive Stafford Smith: I think
that it is, if you want to prosecute anyone in a court of law
that is going to be satisfactory.
Benjamin Ward: On a point of clarification,
there is no definition of terrorism in the torture convention.
The closest to a good definition that we have come across is the
definition put forward by the UN Special Rapporteur on respecting
human rights, while countering terrorism, Martin Scheinin. Essentially,
his definition comes down to intentional attacks on civilians,
causing death or serious injury. It excludes property damage.
It is true that there isn't a UN-sanctioned definition. The Security
Council Counter-Terrorism Committee has not been able to agree
on a definition.
Q26 Mr. Purchase: We are almost
certainly agreed around this table that information obtained by
torture is usually pretty unreliable, so that would justify not
torturing in the main. However, I wish to put a practical point
to you about Britain or other countries having a duty to investigate
what they feel might have been practices involving torture. Let
me put it to you that a country—I shan't name one—says
to Britain, "We have this information. It looks pretty good
to us, and there will be a threat to you such and such a way."
We immediately ask it how it has come by it, to which it responds,
"Oh, we put the thumbscrews on"—or whatever. Should
we use that information? Should we then, because they are interested
in the relationship diplomatically and have found that out by
investigation or otherwise, put it all on the table? It may well
have saved lives—anybody's life.
Clive Stafford Smith: Those are
very interesting questions, and I guess that there are several
ways to look at the matter. In an analogy, let us suppose that
someone from the Mafia came to Britain and told you exactly the
same thing. Would you say to the Mafia, "Oh, carry on about
your business"? I don't think we would do that. ***. you
are raising very real issues that need to be taken very seriously.
***. It is absolute on a moral and legal level that we must do
something to prevent it. Does that include writing an article
in the Daily Mail? No. You begin, of course, by taking
the minimum action. You have to. You tell the Americans that you
are really troubled by it and ask them to put a stop to it. That
may resolve the issue, and it might do so amicably, and you move
on from there. But let us assume that the Americans say they are
not going to stop it, and they want to go on with it. You have
then really to decide whether you do have an ethical Government.
Q27 Mr. Purchase: May I interrupt
you? My question really concerns circumstances in which the information
proved to be absolutely accurate and you have used it in defence
of your citizens. Do you then expose, further investigate or bring
to light that particular practice?
Clive Stafford Smith: I think
you have to. How on earth can you say no?
Benjamin Ward: There was a case
in Germany several years ago. A child kidnapper was in police
custody, and one of the children whom he had allegedly kidnapped
was still hidden somewhere. The man was threatened with torture
by a police officer. He disclosed the whereabouts of the child,
who was later proved to have died by the time the police reached
the scene. He was then prosecuted and convicted of torture. The
circumstances in which the threat of torture was carried out were
mitigation in the sentence that he received, which was a suspended
sentence. The case provoked a great deal of soul-searching in
Germany, but it seems to me that the approach of the German courts
was entirely correct. It is a crime, and it should be dealt with
as a crime. The fact that in a particular instance, one can construct
an example where it might actually have a bearing on life does
not mean that one should change the fundamental values on which
our societies are based.
Q28 Mr. Horam: It follows from
that—what you said was very interesting—that you would
stop at a certain point. If the information, as Mr. Purchase said,
was proved to be accurate and saved lives in some way, you would
none the less stop at a certain point when it became clear that
torture had been used, and that they were not stopping using torture.
Is that right?
Clive Stafford Smith: When you
talk to intelligence officers—I have talked to many interesting
people from the CIA and the FBI on this—they say that actually
you need to know that stuff, because the chances are that, if
you learn, as a CIA agent, that a guy has been tortured, you are
going to think that that intelligence is pretty useless anyhow.
The problem is that we always conflate the demonstrable cases—where
there is a ticking time bomb and it is possible to go find it,
disenable it and save everyone's lives—with the subsequent
prosecution of the dirty bombers. Those are two massively different
things. The problem with most of this torture business is that
it is not used in circumstances where you can go see if it's true.
It is used in circumstances of Shaikh Al-Libi, to say that Saddam
Hussein is in league with al-Qaeda, to justify something that
turns out to be a terrible mistake.
Q29 Mr. Horam: That is a slightly
different point though, isn't it? What Mr. Purchase is asking,
and what I am asking, is, supposing this information turns out
to be accurate—although we know that information obtained
under torture is likely not to be accurate—would you give
up that source of information because it had been obtained under
torture?
Benjamin Ward: Ultimately you
have to make the choice. It is the same decision that you face
if you have a suspect in front of you, and they won't give you
the information you want. You are faced with a choice of whether
to torture them. You make a decision that is not consistent with
your values. We have an example from Israel of the slippery slope
and the ticking bomb, when the ticking bomb becomes a basis for
policy. Israel crafted what it thought were very clear and narrow
guidelines that would allow moderate psychological and physical
pressure to be used on terrorist suspects if it was believed that
they had information about an imminent attack. That practice was
later banned by the Israeli Supreme Court when it was found that
it was being used on most Palestinian detainees. That is the Pandora's
box that we open.
Clive Stafford Smith: If you start
going down that slope, the problem is that you will end up having
to have a mini-trial every time something about torture comes
up. You will start asking yourselves all the questions such as,
"Is this evidence of something that might happen in the future?"
or "Is this evidence of something that has happened in the
past?" and "How far has the torture gone?" It is
crazy. That is what the Americans got into, unfortunately, in
the panic after 9/11—the slippery slope of enhanced interrogation
techniques. Ultimately, the proof of the pudding is in the eating,
and it is fairly shocking that of the 240 prisoners left in Guantanamo
Bay today, of those we have got in front of a real judge, we have
acquitted 83% of them because the evidence that was adduced against
them under torture turned out to be false.
Q30 Mr. Horam: In your view, does
the use of material obtained in this way from other Governments
who may use torture—would it mean that the British Government
would be complicit in torture?
Clive Stafford Smith: Not if they
raise complaints about it. If Britain tries to stop it, that is
very important. It is a myth to say that if we stand up for our
principles, somehow our entire intelligence service will collapse.
That is not what happens.
Q31 Mr. Horam: Do you think that
the UK's position complies with the UN convention against torture?
Clive Stafford Smith: In the current
position that we are dealing with, no—no way. It doesn't
even help us to identify the people who are being tortured in
Bagram right now. That is terrible.
Q32 Chairman: For the record,
Mr. Ward, do you agree with that?
Benjamin Ward: I do. The assertion
of the right to rely on material from countries that has been
obtained under torture is not consistent with the obligation under
the UN convention against torture.
Kate Allen: I would add a different
issue to this, which is the attempt to deport people with diplomatic
assurances to countries where they may well experience torture.
We have not yet seen any of those deportations, but that does
not mean that the British Government have stopped their attempts
to deport people to countries such as Jordan and Algeria—I
do not think Libya any more. Those efforts are still under way,
and we consider that the British Government are undermining the
battle to end torture by seeking those diplomatic assurances.
Q33 Chairman: Some people did
go voluntarily though, didn't they?
Kate Allen: I would question the
nature of voluntary when you have spent several years in prison
or under house arrest.
Q34 Chairman: It was Algeria,
was it?
Benjamin Ward: There were several
Algerians.
Kate Allen: There were several
Algerians, but I really would question that definition of voluntary.
Q35 Mr. Horam: I have one further
legal point. Under section 7 of the Intelligence Services Act
1994, the Foreign Secretary is able to waive the liability of
SIS and GCHQ personnel for illegal acts abroad. What is your assessment
of the legal framework surrounding that?
Clive Stafford Smith: That is
certainly not compatible with the UK's obligations under international
human rights law.
Q36 Mr. Horam: Is that the view
of all three of you?
Kate Allen: Yes, I don't think
we should be talking about British agents being allowed to torture,
or assist in disappearances or extra-judicial executions under
section 7 of that legislation.
Clive Stafford Smith: On one point,
the reason that we want to have a politician involved in those
decisions, and not just the SIS, is because people have to be
held accountable. I do not mean in any way to smear the Intelligence
and Security Committee, but the problem is that there must be
some sense of public accountability, at least among a group of
fellow politicians who run the gamut and are likely to criticise
something if they think that it is wrong. There must be something
that constrains those political decisions. ***. However, as long
as you are allowed to keep those things secret, there is no political
accountability, and that is a concern.
Q37 Mr. Horam: Following on from
that, what improvements do you think could be made in the oversight
of our intelligence services in the UK?
Kate Allen: I think that the oversight
needs to have some independence. I would repeat my criticisms
of the Intelligence and Security Committee in answer to that question.
There needs to be openness, and information should not be declared
as confidential or not, by those releasing it. We need an independent
judicial aspect to this, or we will never be in the position in
which people are held accountable; there will always be secrecy
around these issues.
Clive Stafford Smith: I think
that you need political accountability in terms of having politicians
involved, but there must also be other people who have absolutely
no concerns about their own situation, for example. We want independent
people—I do not suggest lunatic fringe people like myself,
but we need people on the Committee who are totally independent
and can remind people what our morals are.[3]
Q38 Mr. Hamilton: Mr. Stafford
Smith, may I return to the issue of ***
Clive Stafford Smith: ***
Mr. Hamilton: ***
Clive Stafford Smith: ***
Q39 Mr. Hamilton: ***
Clive Stafford Smith:***
3 Note by witness: I was joking in my characterisation
of myself. I was merely suggesting that those who assess these
things can be thoroughly Establishment and still be entirely independent. Back
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