On Thursday December 19, 2013, the long awaited Report of the Detainee Inquiry (“the Report”) was published. The subject of the Report was Britain’s involvement in US torture and rendition programs after September 11 (for earlier coverage on Just Security including excerpts of the Report, see here). As I explain below, a key question now is how the issues identified by the Report will be further investigated and by whom.
It is tempting to focus on all that has gone awry with the process leading up to the Report and the Report itself. And a lot – much of it negative – could be said. For example:
(1) The Report is, essentially, an “interim document” (§7.10) and necessarily so because the Inquiry became an aborted project. The Inquiry was announced on July 6, 2010 by Prime Minister David Cameron as being an Inquiry which would “look at whether Britain was implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11” (§1.3). It was hoped that the Inquiry, chaired by retired judge Sir Peter Gibson would start at the end of 2010 and report within a year (§1.6). The Prime Minister said that the Inquiry could not start while criminal investigations were ongoing and that it was not feasible to start whilst civil law suits were pending. Whilst the latter condition was satisfied in November 2010 (after 16 civil law suits were settled), the former issue was not: in January 2012 a further police investigation into two cases was announced. As a result, and given the uncertainty of when the police investigations would conclude, the British Government brought the Inquiry to a close (§1.9). So, the Inquiry was never, actually, formally launched. During the period when it was extant, the Inquiry Team negotiated with the Government on the Terms of Reference and Protocol, ran a legal seminar in June 2011, and received some 20,000 documents. The 115-page Report is the result of those processes.
(2) One consequence of the aborted nature of the Inquiry is that no evidence was heard from witnesses and so the Report “does not find facts or make recommendations or draw conclusions. Any findings, recommendations or conclusions it might have made could only be based on the documents thus far received. Those documents would not have been explained through witness statements or tested in oral evidence, as [the Inquiry] has not had the benefit of taking evidence from any witness from whom it intended to hear. … the Inquiry has highlighted themes and issues that it thinks may merit further examination. It has done this by raising questions, based on the documents it had before it. It is not in any position to answer those questions.” (§1.30) The procedural defect (i.e. the aborted nature of the Inquiry) has, therefore, necessarily led to a Report much reduced in substantive scope from that which had been originally anticipated.
(3) The extent of Government influence over the Inquiry process is, and has been, controversial. Two illustrations of that influence are as follows. First, it was only after “lengthy negotiations” (§1.15) that the agreed Terms of Reference and Protocol for the Inquiry were published, on July 6, 2011. The Protocol made clear that “as much relevant information and evidence as possible would be put into the public domain, consistent with public interest concerns” (§1.18). This, especially the veto power of the Cabinet Secretary over whether any particular document or piece of information should be made public, was criticized, primarily by NGOs (§1.21). Secondly, the Report was submitted to the Government on June 27, 2012 in two versions: a closed version and an open version. The closed version is the full Report. It “comprised a narrative, supported by illustrative examples. These examples are generally taken from highly classified source material, which the inquiry believes, cannot properly be published for [national security reasons]” (§1.2). The open version, the one which has been published, “comprised substantially the same narrative as the closed version and contained that material which the Inquiry… believed could be put in the public domain without risking national security…” (§1.2). However, even the open version of the Report did not pass muster initially. “Detailed discussions” spanning, it seems, almost 18 months – from June 27, 2012 until December 19, 2013 – took place to determine “what could appropriately be contained in the open Report” (§1.2). Such protracted “discussions” did not result in a fully open Report. Instead, the Report contains certain redactions (of which the Inquiry was “not persuaded”), indicated by the symbol “***”, “made by the Government on the basis of national security and in the interests of not interfering with extant legal processes.” (§1.2)
These factors provide important context for reviewing and analysing the Report. However, they should not eclipse the following:
(1) The Report is detailed and analytical, ranging over a substantial number of factual and legal matters. 27 “issues and areas the Inquiry would have wished to investigate” (see Annex A) are identified, covering interrogation and treatment issues (chapter 3); rendition (chapter 4); guidance and training (chapter 5) and UK Government policy and communication (chapter 6). The identified issues and areas in each chapter will merit close scrutiny. Not only does consideration need to be given to whether the Report provides new factual information but, importantly, consideration also needs to be given to how the Report articulates issues/shapes future lines of inquiry, both factual and analytical. There has already been considerable press coverage of some of the Report’s findings: see here and here.
(2) The way in which the Report articulates issues/shapes future lines of inquiry is important for at least two, linked, reasons. First, it may assist in strengthening the argument – previously made by NGOs and others – that an investigation into the areas considered by the Inquiry is required by the investigative obligation implied into Article 3 of the European Convention on Human Rights. The Inquiry was not set up pursuant to such an obligation (see §1.19). The Article 3 investigative obligation is triggered where there is an arguable or credible Article 3 breach which implicates the State. It may be possible to invoke the Report’s articulation of issues, alongside specific facts of particular cases, to strengthen the argument that there is such an arguable Article 3 breach and an Article 3-compliant investigation is legally required (pursuant to the domestication of, inter alia, Article 3 by the Human Rights Act 1998). This leads to the second reason: if such an Article 3-compliant investigation is required then it needs to satisfy certain criteria, e.g. it needs to be practically, hierarchically, and institutionally independent from the persons being investigated. A continuation of the inquiry by the ISC (the Intelligence and Security Committee) is on the cards and has already been roundly criticized. It may become increasingly difficult for the Government to ignore such criticisms if they are bolstered by reference to the need for an Article 3-compliant inquiry.
(3) 20,000 documents were received by the Inquiry and the “vast majority” have been indexed and sorted electronically and securely on a searchable database (§1.25). The Report rightly refers to the collation of this bank of documents as being “a real achievement” (§1.25). Not only should this provide a future inquiry with a “good base” (§1.25) but it also identifies a treasure trove which may be the target of disclosure (i.e. discovery) requests by claimant lawyers in future litigation. Of course, disclosure is likely to be resisted on the grounds of national security but, if relied upon, that would be tested on a case-by-case (and document-by-document) basis.