It looks as though the new government is belatedly prepared to grasp the nettle of Labour’s alleged acceptance of torture. The promised commission will investigate what exactly was tolerated under Blair’s government. If America won’t, then Britain will—even though in both cases the culprits are the elected leaders of the previous administration, and the secret services who did their dirty work.
The wheels of justice in Britain can grind exceedingly slowly, but in the end they usually grind small. Thirty-eight years after Bloody Sunday, when it was alleged that British soldiers killed 16 peaceful demonstrators in Londonderry in Northern Ireland, the official inquiry (lasting 12 years—a ridiculous amount of time) announced that it found the soldiers guilty of lying about the demonstrators’ use of guns.
From the 15th century onwards the common law of England (which is also the original common law of America) adamantly set its face against torture and the admission of evidence procured by torture. The judges who presided over these decisions pointed to the inherent unreliability of evidence procured that way, since a person subjected to unbearable pain will say anything to stop it. Voltaire, who lived in London for three years, wrote of how he admired the English attitude. Nevertheless, the special court of the star chamber could issue torture orders, but one of the very first acts of the long parliament in 1640 was to abolish this court, and since then no torture warrant has been issued in England.
Torture was abolished in Prussia in 1740, in France in 1789 and in Russia in 1847. In 1791 the US constitution in its eighth amendment forbade cruel and unusual punishment, echoing word-for-word the British bill of rights of 1689.
All these countries are parties to the Geneva convention, to the international convention on civil and political rights and, most importantly, the UN convention against torture, which allows no exceptions even in a time of warfare or emergency. The very conservative administrations of Ronald Reagan and Margaret Thatcher were founding signatories.
The UK is not accused of torture on its own soil, unlike the US, but of sending those who it wanted to be vigorously interrogated to countries which sanction torture. Even worse, it went to court to argue that it should be allowed to use intelligence obtained by torture. In October 2005 the government argued before the House of Lords (now the supreme court) for the right to use torture for the first time in over 200 years. The law lords turned the government down flat. Nevertheless, the government, reinterpreting their words, claimed the judges had held that it was “perfectly lawful for such intelligence information to be relied on operationally and also by the government in making executive decisions”—presumably using information obtained by non-British intelligence services and only from torture victims not selected because of a British government request. That is some hair-splitting.
In his new book, The Rule of Law, Tom Bingham, the former senior law lord of Britain’s supreme court, argues that “it cannot be said that that the UK has shown that implacable hostility to torture and its fruits which might have been expected of the state whose courts led the world in rejecting them both.”
He concludes his book by quoting the ringing words of a council of Europe statement from 2002. “The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the state has the right to use to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which seek only to undermine the fundamental values they seek to protect. For a state to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law.”
At last, the question whether the government of Tony Blair was complicit in the use of torture is being asked and probably will be investigated. Hopefully it will not take 12 years to unearth the truth in a legally satisfying way.
And if the commission finds that Britain of all nations has allowed itself to cross the boundary from the lawful to the unlawful then Britain should voluntarily forsake any interventions it may wish to make in European and UN affairs promoting human rights until it has made a suitable act of public contrition.