Ooops – the problems of getting caught red-handed: 11 February 2010

A veritable poo-storm hit the British Court of Appeal yesterday as a private exchange of correspondence – between the government’s lawyer Jonathan Sumption QC and the Court – became public. The government had asked that part of the judgment relating to the alleged torture of Binyam Mohammed be redacted (or removed) in the interests of protecting the reputation of our Security Service (known to nearly everyone as MI5).

And the judgement of the Master of the Rolls (a notoriously controversial post since the days of Lord Denning) was harsh. AsSumption’s letter makes clear:

“The Master of the Rolls’s observations, to whichever service they relate, are likely to receive more public attention than any other part of the judgments. They will be read as statements by the Court (i) that the Security Service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques; (ii)that this was in particular true of Witness B whose conduct was in this respect characteristic of the service as a whole (‘it appears likely that there were others’); (iii) that officials of the Service deliberately misled the Intelligence and Security Committee on this point; (iv) that this reflects a culture of suppression in its dealings with the Committee, the Foreign Secretary and indirectly the Court, which penetrates the service to such a degree as to undermine any UK government assurances based on the Service’s information and advice; and (v) that the Service has an interest in suppressing information which is shared, not by the Foreign Secretary himself (whose good faith is accepted), but by the Foreign Office for which he is responsible.”

It’s difficult to imagine a harsher verdict over the conduct of the Security Service and the government, and it comes at a difficult time. While the PREVENT agenda is in the news and liberal think-tanks and NGOs try to convince the government and policing agencies to adopt softer and more understanding tactics to try and deal with radicalisation, finding one of the core planks in this policy has dropped a serious ball and then has been ‘economical with the actualité’ is a problem. But in the rest of this post, I’ll try and divide up what I see as the key issues that fall out of this, having had a few minutes to think about it!

* Torture: A scene from ‘Father Ted’:

So, we don’t do torture?

No, we don’t Ted…

We do, don’t we Dougal?

Yes, we do Ted… (And from the court record: “UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of the USA authorities”)

Now, we know that British security services (of all kinds) have engaged in strong measures against suspected terrorists and insurgents in the recent past. Richard Aldrich’s chapter in Mike Goodman and my forthcoming edited collection, shows this very ably in the Northern Irish setting. He also shows the strained, perhaps difficult communication lines and the government’s attempts to understand really what was going on. But the real point here is not about whether security agencies engage in this kind of activity – even if one takes into account the sub-contracting of nastiness to third country agencies – but the effect of these revelations on the agencies and on public confidence. And we can be explicit here – the active and violent extremists will be entirely unaffected by these revelations. I remember an SWP worker in my hall of residence in my undergrad days saying it would be ‘an honour’ to be assassinated by the security services as it would show how close the revolution was (most of us who witnessed this thought the former desirable, and the latter a disaster.. he has apparently gone onto mid-level obscurity in a liberal NGO..). So, for people with this kind of mindset, such revelations merely confirm what they always thought. The real problem group are those who are mildly or considerably disaffected, who then might go on to provide support (in whatever form) to the violent extremists. For reference points, think Bloody Sunday and what an excellent recruiting Sergeant it proved to be.

General public confidence might also take a knock with these revelations. Whilst most right thinking people want the security services to be pulling out a lot of the stops to prevent violent extremism coming to a head, there is a good bulk of the people (certainly in the UK) who blanche at the idea of torturing someone who turns out not to have done anything. If they have done something, I think we’re more sanguine… but if they haven’t.. well, that’s naughty in the extreme. And I know that it’s probably form at this point to outright condemn torture – but that’s way too easy frankly. It is a repellent practice, which serves little utility (according to the evidence of those who have practiced it  – see for example the work of Ruth Blakeley, who hasn’t practised torture but who has talked to people who have, and the lessons of Latchmere House in WWII – one of Christopher Andrew’s PhD students is/was working on this). For me, I wouldn’t ever order it because I think it’s utility is marginal and the thing that separates me from the adversary is my humanity; and I think it has the very unfortunate side-effect of making psychotic or even more disturbed the torturer and the tortured. But actually faced with these decisions in real-time, in a real position, I couldn’t totally rule it out. There, a good dose of honesty for a Thursday morning.

And there is something about the switch in US policy (from before 9/11 with Clinton’s rendition policy) that the British intelligence agencies have struggled to adapt to or rub along with effectively. The British political classes certainly haven’t caught up with it, and that might be the nub of the issue. How to move the intelligence agencies closer the American position (quickly enough to satisfy the Americans) whilst not moving so fast that the whole of the British political class is left behind. One can easily see how this might be much of the problem in this case; but there is an implication in the court correspondence that Witness B – who is being prosecuted for something (it’s not quite clear what) – could be left as the bad apple who takes the fall for problems in the shifting political tectonic plates between American and British intelligence and security apparatuses.

* ‘Misleading the ISC’

This will inevitably lead to calls to reform the Intelligence and Security Committee (a Parliamentary Committee as opposed to a Select Committee) / oversight system. As it stands the ISC has been able to say ‘don’t worry, it’s all safe with us… we see things you can’t see, and we’re a critical friend to the agencies’. Which is difficult to argue against, given the difficulty of testing it! The ISC seemed more effective when John Morrison (a former high ranking member of the Defence Intelligence staff and JIC member) was their advisor, and there will surely now be a call for someone like Morrison to be re-engaged to prevent the wool being pulled over the eyes of the Committee (a committee that has been seen as problematic because of Prime Ministerial patronage, its inability to call on papers and witnesses, and its somewhat supine reporting structure). For further analysis on this point see the work of Andrew Defty, Philip Davies, Mark Phythian, Pete Gill.

* ‘Misleading the Government’

When I read the reports, an obscure link appeared in my mind – which is with the Scott Report (1996).  In this report there were criticisms levelled against the Security Service about the advice they gave to the government being ‘partial’, to shape the policy. The government’s response to the arms to Iraq issue was coloured by this advice (particularly as it related to the importance of human intelligence sources within the Matrix-Churchill engineering firm), and there are some soft analogies here. However resonate these are, it is likely that there will be some difficult questions being asked by both the ISC and government ministers; because there is a general assumption that a state’s (and the state/government distinction is important) intelligence agencies are not running a completely different agenda to the government of the day.

Sumption’s letter makes a series of important points: “More generally, the Master of the Rolls’ observations, which go well beyond anything found by the Divisional Court, constitute an exceptionally damaging criticism of the good faith of the Security Service as a whole. In particular, the suggestion that the Court should distrust any UK government assurance based on the Service’s advice and information will unquestionably be cited in other cases and, if applied more widely, would mark an unprecedented breakdown in relations between the Courts and the executive in the area of public interest immunity.” And this is crucial precisely because the link between the Security Service and the government – in an era of networked terrorism – is crucial; there has to be trust between the two and surety of information and advice.

So, whilst this is very early days and I’m sure the pages of various journals will be full of this over the next weeks and months, you have my very immediate response. Any comments would be gratefully received! Perhaps I can beat one of my intelligence studies colleagues into INS with an extended article on it!

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