Despite a series of inquiries since 2010, has enough been done to prevent future British involvement in the torture of detainees?
In the aftermath of the 9/11 terror attacks, the United Kingdom’s intelligence services were in several instances complicit in the use of torture by the CIA and other foreign agencies. Despite a series of inquiries since 2010, and some reforms of the system, questions remain about whether enough has been done to prevent future British involvement in the torture of detainees. Ben Horton speaks to Ruth Blakeley and Sam Raphael from The Rendition Project to find out more about what they describe as a ‘machinery of denial’ at the heart of the British state.
Could you explain what you mean by complicity in torture?
Ruth Blakeley: The first thing to acknowledge is that torture happened. It is well documented that CIA officials, third parties hired by the CIA and collaborating intelligence agencies from a range of other states all engaged in extreme forms of torture. This included waterboarding, rectal force-feeding, sleep deprivation and the confinement of people in coffin-shaped boxes for days on end. All of this is now a matter of public record. Indeed, some of the architects of the programmes admit that they did these things but claim their actions were justified by operational necessity.
In terms of UK complicity, we do not allege that UK agents conducted these acts. However, in 2018 a report from the Intelligence and Security Committee of Parliament (ISC) found that UK intelligence agents were aware that torture had taken place, either because it was reported to them or because the CIA indicated that it happened. In some cases, UK operatives observed some of the abuse or witnessed the aftermath. Under international law, these operatives would have had a responsibility to report this up the chain of command and try to stop it. There are numerous examples where they could have intervened, but little evidence that they did so.
Another way in which UK agents were complicit was that they shared intelligence on particular prisoners with the CIA, knowing that those prisoners were at risk of, or indeed experiencing, torture. There are also allegations that the UK facilitated kidnap operations, for instance by allowing the CIA aircraft used to transport detainees to refuel on British territory. Specifically, they were known to have allowed some of those aircraft to transition through the British Overseas Territory of Diego Garcia, where there is a US military base. So, there was certainly complicity at many levels, the most serious being operatives having extensive knowledge of, or even witnessing, torture when it happened.
Have we seen a shift in the approach of British intelligence services in recent years?
Sam Raphael: Since 2010 there has been a reckoning of sorts. The publishing of the government’s ‘Consolidated Guidance’ in 2011, the Gibson inquiry in 2013, the ISC inquiry in 2018 and, most recently, the publication of ‘The Principles’ in 2019 all mark an evolution in the oversight framework for intelligence sharing and involvement in counterterrorism operations which may lead to abuse.
That said, to some extent this new framework is illusory. Many of the guidelines remain classified and those that we have managed to access provide an illusion of oversight and constraint, while being rhetorically structured to preserve a space for very illiberal practices to continue. It seems very unclear to us what provisions exist to monitor, oversee and shape the ways in which that language is being interpreted.
In what ways is a British intelligence official today constrained in their ability to share information with foreign partners who may then engage in torture?
Sam Raphael: When you look at the existing guidance to officials with that question in mind, the illusion of accountability becomes apparent. Even if an official judges the risk of torture to be serious, there is a whole suite of options for them to engage with to ensure that the intelligence can still be shared if they feel that operational necessity demands it. For instance, it is really clear in the guidance that the British official can essentially pick up the phone and enter into an unwritten agreement with a third party around the treatment of the suspect in question, and there can have zero post-intelligence sharing monitoring to check that such an agreement has been upheld. There is also the practice of passing such cases up to government ministers to make the call even when the risk of torture is thought to be serious. In theory, according to both domestic and international law this binds the government not to share the intelligence. While, the data on such instances is very hard to find, we did manage to locate the number of times that ministers were consulted between 2013 and 2015, and the number of times intelligence sharing was subsequently approved, and the two equate. Ministers were asked 28 times to approve intelligence sharing, and each request was approved. On the one hand this could just reflect the circumstances of each case, but on the other hand this could lead to serious questions about the lack of proper, informed scrutiny of these decisions.
In your article you refer to a ‘machinery of denial’ constructed by the British state. How does this function?
Sam Raphael: By invoking this idea of a machinery of denial, we were hoping to paint a picture of a set of individual practices of denial. We conceive of it as machinery in two senses. First is that these practices are durable across time. From the state’s response to the very first allegations around 2003 that Britain was somehow complicit in problematic activities during the ‘war on terror’, right the way through to parliamentary discourse last year around Britain’s approach to human rights and counterterrorism, we see many of the same rhetorical flourishes, discursive structures and methods by which a reckoning is denied. They retain salience across administrations, across departments and across the changing US political and security landscapes.
Second, although each of these practices are embodied in turn in particular institutional contexts, they reflect something larger about the British state and its desire to avoid a full reckoning with some of the distinctly illiberal practices that it has committed itself to.
What is behind that desire? If this activity is already known and discussed in the public domain what is the motivation to deny involvement?
Ruth Blakeley: Among the UK foreign policy establishment there is a deeply entrenched view that Britain is a world leader on questions of democracy and human rights. That is the rhetorical position. Every time the likes of Tony Blair, David Cameron or Theresa May were faced with allegations of collusion in torture, the response was always that the British state does not support, condone or facilitate torture because it is committed to protecting human rights. And on one level the people involved really believe that about the British state and about British political commitments. If you accept these allegations and buy into the argument that there should be a full reckoning—and even prosecutions—you undermine that narrative.
A second motivation is to protect the UK’s relationship with the US. However critical one might wish to be, there is a view that you can only go so far in alienating the US. If the UK allows a full airing of these issues, it further exposes the CIA. This leads decision-makers in Whitehall to fear that allowing a full airing would not only increase the threat to national security, but also undermine the British position as a key player and partner of the US in its struggles against terrorism and other international issues.
And third, there is an institutional dimension to this. For many decades—at least as far back as the brutal repression of the Mau Mau in Kenya during the 1950s—the British state has developed a tradition of intelligence services taking particular positions on such allegations of human rights abuses and avoiding a public reckoning at every cost . So, it is not just that there are policy imperatives guiding this stance. There is also a kind of historical practice and pattern of denial. Successive governments have learnt how to avoid accountability and protect the intelligence services from their predecessors, to the extent that this obfuscation has become the norm. It is possible to trace this behaviour from Kenya to the Troubles in Northern Ireland and on to the ‘war on terror’. It is striking how the same kinds of arguments are made over and over again. In this context we are talking about a very small group of political and establishment elites. They are very close-knit communities with something of a revolving door between them. They are very white, largely made up of men, and there is certainly a degree of groupthink. If there was more diversity, we might see a loosening of some of these very embedded and integrated practices, what we call this ‘machinery of denial’, because often institutions change through the introduction of diverse thinking and diverse people.
What would ideal accountability mechanisms look like?
Sam Raphael: Firstly, there needs to be reckoning with the past. There is not just a desire to avoid prosecutions or an embarrassing public inquiry, it is also the fact that the British state wishes to maintain operational wiggle room for British involvement in counterterrorism operations where abuse is likely. And on some level, society needs to take account of this.
In terms of concrete accountability mechanisms, there needs to be a judge-led inquiry with power of subpoena to investigate this recent history of complicity in torture. This is not about full public transparency but there must at least be a body independent from the executive, with the ability to sequester all the documentary evidence that still exists and to subpoena all relevant personnel at whatever level of seniority. Following on from this, there needs to be a system of independent checks and balances embedded in contemporary practice, to avoid any sense that the intelligence services are marking their own homework. Exactly what this looks like, I am not sure we are qualified to say. But a broad conversation must be had about how the British state ensure that human rights are substantively at the heart of intelligence and security practices.
Ruth Blakeley: One of the challenges for achieving better accountability is that more often than not it falls to civil society to hold government to account. While on some level this is how things should be in a functioning democracy, when it comes to subjects like intelligence practices it is all too easy to overestimate the power of civil society to effectively act as this accountability mechanism. A good example of this came in 2018 when the Investigatory Powers Commissioner reviewed the ‘Consolidated Guidance’. As is standard practice this process was opened to civil society, and academics like us were invited to make written submissions before a roundtable discussion hosted by the Commissioner. On one level you can be seduced into thinking that this ensures transparency. But, of course, this again is an illusion. There was just one roundtable—one opportunity for civil society to interject in the development of this critical guidance—while the other stakeholders, the intelligence services themselves and the relevant government departments, had months to coordinate their response. We should not make the mistake of thinking the power dynamics are even.
Ruth Blakeley and Sam Raphael are the authors of an article in International Affairs titled ‘Accountability, denial and the future-proofing of British torture.’ It was published in the May 2020 issue, and can be read here.
Source: International Law and Governance