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The Prime Minister’s direct intervention indicates the rather direct and personal involvement of No 10 in the affairs of different government departments. It suggests that the overriding objective is not to act consistently with applicable rules, or ensure that fundamental human rights of individuals are protected, but to gauge and then pander to public opinion: hence the strategy of shifting the blame for Youssef’s release away from government and onto the courts. The handwritten comments, and the letter of 14 June 1999, suggest that in the post-9/11 world the Prime Minister would have little hesitation in providing such assistance as he could to President Bush in the “war on terror”.  Little surprise then that the Prime Minister would fail to condemn the Guantanamo Project for its gross violations of international law. The mindset that characterises Guantanamo as an “understandable anomaly” has been laid bare. 

What has the Prime Minister said about extraordinary rendition? He has tried to say very little. On 7 December 2005 in the House of Commons the then Liberal Democrat leader Charles Kennedy asked him:

“To what extent … have the Government co-operated in the transport of terrorist suspects to Afghanistan and elsewhere, apparently for torture purposes? ”

The Prime Minister does not respond to the question of British cooperation. He notes that torture cannot be justified in any circumstances. He then says that rendition “as described by Secretary of State Condoleezza Rice” has been American policy for many years, that “We have not had such a situation here”, and that the American policy “must be applied in accordance with international conventions, and I accept entirely Secretary of State Rice's assurance that it has been.”

Mr. Kennedy then asks him to explain “why the published evidence shows that almost 400 flights have passed through 18 British airports” and “When was he as Prime Minister first made aware of that policy, and when did he approve it?” Again, the questions are not answered. The Prime Minister says: “In respect of airports, I do not know what the right hon. Gentleman is referring to. In respect of the policy of rendition, it has been the policy of the American Government for many years.”

Following that exchange, we do not know any more about the extent of the British government’s knowledge of or cooperation in US to rendition or extraordinary rendition. I have learnt to read the Prime Minister’s words carefully. He is, after all, trained as a barrister.  I have also learnt that what the Prime Minister says to one person is not necessarily consistent with what he has said elsewhere. That was brought home to me – again – last month when I appeared before the House of Commons Select Committee on Foreign Affairs. I was asked to appear to address questions concerning the additional chapter in the paperback edition of Lawless World. This contained new material, including on the private meeting between President Bush and Mr. Blair on 31 January 2003. The material confirmed unambiguously that by that date President Bush had taken the decision to go to war irrespective of the outcome of the United Nations process, of whether or not there was a second UN Security Council resolution, or of what the weapons inspectors did or did not find. According to the President the start date for the war was penciled in for 10 March 2003.  In response to all of that the note of the meeting records the Prime Minister as saying that he is “solidly with the President”.  The New York Times has confirmed the authenticity of the material, and there has been no denial by the White House or No. 10 as to its contents. Indeed that would be difficult since, as the New York Times has confirmed, the note in question was penned by David Manning, now British Ambassador to the US.

This goes to the very last question that I was asked by the House of Commons Select Committee. It came from Andrew Mackinlay MP. It is worth repeating in full:

“In the period just before it became clear that there was not going to be a second UN resolution I … met the Prime Minister with two other Members of Parliament and I put to him the question that if there was compliance – and by “compliance” I meant full disclosure, access and destroying weapons of mass destruction if they were there – would an invasion be avoided.  He replied to me – and I remember it well because he referred to the President in first name terms; he referred to him as “George” – that he put this to the President of the United States, that if there was full compliance by Saddam there would be no invasion, and he told me that the President of the United States confirmed that was so. […] I wanted to put that to you because I really want to find out what you think about that.”

What I think about that is what I responded to Mr. Mackinlay: It is plain that the Prime Minister’s statement to him was inconsistent with what he told the President of the United States on 31 January 2003. I could have gone further, and no doubt others will.

So you will understand if I am a little sceptical when the Prime Minister gives an answer to a question in Parliament that tends to suggest – without actually so stating – that Britain has not cooperated with the United States in any aspects of its rendition policies and that the Prime Minister has no knowledge about the possible use of British airports in support of the US practice.

I am sceptical of the Prime Minister’s words for another reason. Earlier this year the New Statesman magazine published a copy of an internal memorandum from Mr. Irfan Siddiq, a Private Secretary to Jack Straw at the FCO, to Grace Cassy, the Assistant Private Secretary to the Prime Minister for Foreign Affairs, based at No. 10. The memorandum provided advice for the Prime Minister in preparation for Prime Minister’s Question on 7 December 2005. It was a briefing paper, and it provides an insight as to the Government’s attitude to the facts and to its international obligations. The memorandum has received media attention for the advice it gave the Prime Minister:

“We should try to avoid getting drawn on detail ... and try to move the debate on from the specifics of rendition, extraordinary or otherwise, and focus people instead on the Rice’s clear assurance that all US activities are consistent with their domestic and international obligations and never include the use of torture. […] We should also try to bring out the other side of the balance, in terms of the huge challenge which the threat of terrorism poses to all countries”. 

This is precisely the path followed by the Prime Minister in his 7 December 2005 PMQs. Yet the memorandum has more interesting points on the substance that did not come out in the Prime Minister’s statement. Adopting broadly the same definitions as I began with this evening, the memorandum asserts that rendition “could … be legal on certain tightly defined circumstances”.  That is wrong. The memorandum also suggests that in most circumstances rendition from the UK would not be legal, but in some limited circumstances it could be legal.  That too is wrong.  It confirms that extraordinary rendition (involving torture) could never be legal, but takes refuge in the definition of torture, in the facts and in Condoleeza Rice’s statement shortly before. As the memorandum puts it:

“The US Government does not use the term “extraordinary rendition” at all. They say that, if they are transferring an individual to a country where they believe he is likely to be tortured, they get the necessary assurances from the host government (cf Rice’s Statement: “The US has not transported anyone and will not transport anyone, to a country when we believe he will be tortured. Where appropriate the US seeks assurances that transferred persons will not be tortured”).”
This of course brings us directly back to the case of Youssef, in which we saw so clearly how committed was the Prime Minister to the avoidance of torture and compliance with Britain’s international obligations. Mr. Siddiq’s memorandum almost seems to have this in mind. It reminds No. 10: “We would not want to cast doubt on such government-to-government assurances, not least given our own attempts to secure these from countries to which we wish to deport their nationals suspected of involvement in terrorism”. 

Even more pertinent, on the subject of complicity and its consequences, is what the memorandum has to say about Britain’s involvement and knowledge in US practices. It states: “we now cannot say that we have received no such requests for the use of UK territory or air space for ‘Extraordinary Rendition’. It does remain true that ‘we are not aware of the use of UK territory or air space for the purposes of ‘Extraordinary Rendition’”.   To my reading that suggests that the possibility of British cooperation in some activity that could amount to violations of international law. The position has been summarized more recently by the then Foreign Secretary, Mr. Straw, speaking in the House of Commons on 20 January 2006. In response to the leak of the memorandum he provided an updated account: “We have found no evidence of detainees being rendered through the UK or Overseas Territories since 11 September 2001”.  Again, the words are carefully crafted. They do not confirm that there have been no renditions through the UK. They leave open the possibility that the Government may have turned a blind eye to acts that it did not wish to obtain information about.

And that is the crux of the issue on complicity. What is the extent of the Government’s obligation to satisfy itself that no internationally illegal acts are occurring? Again, the leaked memorandum provides some insight. It says that if the US were to act contrary to its international obligations “then cooperation … would also be illegal if we knew of the circumstances.” And it adds: “Where we have no knowledge of illegality but allegations are brought to our attention, we ought to make reasonable inquiries”.   That formulation does not go far enough. There is no “ought” about it; under the Torture Convention there is a positive obligation on the part of the Government to satisfy itself that no internationally illegal acts are occurring, and it cannot take refuge in the statements of even the friendliest of States. Professor James Crawford put it very succinctly in a legal opinion to the All Party Parliamentary Group on Extraordinary Rendition last December:

“[Secretary Rice’s] statement does not bring complete assurance that the practice of [extraordinary rendition] is not occurring. The question that must be asked is whether torture is likely to take place if a person is transported, irrespective of whether or not the government claims that the answer is no, or what its hopes or beliefs may be. And that is essentially an objective question: a Government is not exonerated from conduct which leads to a person being tortured merely by closing its eyes to that prospect.”

Article 4 of the Torture Convention imposes a positive obligation. It is not good enough for the Prime Minister to say he knows nothing about airports. It is not enough for the Foreign Secretary to say that “we expect [the US] to seek permission to render detainees via UK territory and airspace”.  Britain’s international obligations require more. If there is a credible allegation then there is a positive duty to investigate. If there has been a policy decision akin to that of President Clinton on gays in the military – “Don’t ask, don’t tell” – then Britain could be complicit and the possibility of individual criminality is there.

* *
This is the background against which to assess the Prime Minister’s protestations of his commitment to fundamental rights and the rule of law, reflected most recently in his email debate with Henry Porter of The Observer over several pages of that newspaper late last month.  Perhaps the most interesting aspect of the emails is that the Prime Minister felt the need at all to engage directly with Mr. Porter’s far-reaching critique of his Government. It reads to me as though the Prime Minister’s concern with his legacy is driven by the fear that he is fundamentally misunderstood, and that those who seek to challenge him are out of touch. He attacks Mr. Porter’s “mishmash of misunderstanding, gross exaggeration and things that are just plain wrong”, as he put it. Yet it is the Prime Minister who displays these characteristics. It is he who is prone to errors of fact: for example, under the Human Rights Act – for which his government rightly deserves credit – the judges are not empowered to strike down acts of Parliament, as he claimed.  It is he who is prone to gross exaggeration: the conditions of the modern world cannot possibly be said to be such that “traditional processes” are inadequate, as he claims.  And it is he who is prone to misunderstanding: he says that his approach reflects “a genuine desire to protect our way of life from those who would destroy it”. But our “way of life” includes our system of values, and our system of values includes a commitment to the rule of law. Returning foreigners to near-certain torture is not consistent with our “way of life” or our values. Aiding and abetting the transfer of British nationals and residents to Guantanamo – if that is established to have occurred – would not be consistent with our “way of life” or our values. Turning a blind eye to extraordinary rendition – if that is established – falls within the same category. The Prime Minister’s logic leads inexorably in one direction only. “Whose civil liberties?”, he asks. Everyone’s, we should respond. 

It is difficult to see the thread of principle that drives the Prime Minister in these written utterances and in his intemperate and inappropriate comments aimed at this week’s first instance judgment on the Afghan hijackers. Did the Prime Minister read the full judgment before commenting? It concerned the manner in which decisions were taken by the Government, not their substance. In his judgment Mr Justice Sullivan said that “It is difficult to conceive of a clearer case of ‘conspicuous unfairness amounting to an abuse of power’.”  He added: “Lest there be any misunderstanding, the issue in this case is not whether the executive should take action to discourage hijacking, but whether the executive should be required to take such action within the law as laid down by Parliament and the courts.”

By his comments the Prime Minister seems to endorse a different approach, action outside of the law. The idea of adopting new primary legislation to modify the effect of the Human Rights Act to require English judges to balance individual rights with the security of the community would have the perverse effect of diminishing the role of English courts and enhancing the role of the European Court of Human Right. That is precisely opposite to the original intent of the Human Rights Act to ‘repatriate’ the Convention. Withdrawal from specific clauses of the ECHR -0 another option that is apparently under consideration - is not available under international law. The Prime Minister is guided by an essentially populist approach: driven not by principle or by informed assessment but by what will make the headlines in certain papers. Interventions of this kind raise serious question of judgment, at a time when the country faces real challenges and threats, and when decent judgment and the restoration of trust in government are of such paramount importance.  Such interventions by the Prime Minister contribute to a climate of hysteria, encouraging one newspaper to start a national campaign to scrap the Human Rights Act. Yet the daily life of the Act is mundane: the great majority of its beneficiaries are regular and law-abiding citizens who seek to challenge abuses of governmental power, women who might want access to cancer treatments or protection from violent partners, children who seek access to schools, senior citizens in residential care homes who would like to be provided with bed pans.

If “Get them back” at any cost is indicative of the Prime Minister’s aim of protecting “civil liberties for the majority”, it is he who is out of touch with fundamental values, and it is he who poses the more fundamental threat to constitutional democracy, the separation of powers, and fundamental rights. In his Observer emails he wrote how a visit to Camden had allowed him to come to the conclusion that Lord Steyn was out of touch with reality. Just two weeks after he wrote that the voters decided to deprive the Labour Party of its controlling majority in Camden (which happens to be my Council),  the first time in thirty five years.
* *

Let me conclude and bring together the various threads. In recent years I have asked myself many times what exactly it is that has driven President Bush and Prime Minister Blair foreign policy decisions on issues like Iraq, Guantanamo and other actions against global terrorism, often as joint enterprises. Last week’s issue of the New Yorker magazine provided some insight into President Bush’s policy-making process on these issues. “I base a lot of my foreign policy decisions on some things that I think are true”, he told the members of the Orange County Business Council in California. "One, I believe there's an Almighty. And, secondly, I believe one of the great gifts of the Almighty is the desire in everybody's soul, regardless of what you look like or where you live, to be free."  Tony Blair’s approach is not far removed. Asked recently by journalist Con Coughlin what had driven his decisions post-9/11, he responded: “I just go with my instinct”.

We do not yet know all the facts on “extraordinary rendition”, or on Britain’s possible involvement – if any - in the practicing of it. It is clear that extraordinary rendition carried out in any form would be contrary to international law, and that any individual involved in the practise – even at the highest level – would be open to international criminal charge. Complicity maybe a crime under international law. Complicity could include turning a blind eye. These are still early days in understanding the precise relationship between the Bush Administration’s policies on detainee transfers and interrogations, the legal advices and the allegations of abuse at Guantanamo, Abu Ghraib, Bagram and elsewhere, including places unknown. But on the basis of the materials I have seen – on the decision-making in relation to Iraq, on the attitude to the proposed removal of Hani Youssef without effective assurances against torture, on the failure to condemn Guantanamo for more than four years, on the desire to allow English courts to admit certain evidence that may have been obtained by torture, on the indefinite detention without charge of certain foreigners who cannot be deported, on the evasive answers in relation to rendition – it would not surprise me in the least if materials were eventually to emerge which could show involvement in decisions concerning the international transfer of British nationals or residents, and perhaps other actions directly or indirectly associated with rendition. The Pinochet and Altstotter cases and the torture convention indicate what is now possible. In such circumstances neither the Almighty nor instinct would be available by way of a defence.