The UK government has published its response to two reports published this summer by the UK Parliament’s Intelligence and Security Committee (ISC) on “Detainee Mistreatment and Rendition.” Published quietly at a time when Brexit dominates the political and media sphere, the response has been described as an “exercise in evasion” for its failure to engage meaningfully with the reports’ findings. Crucially, the response is silent on calls following the publication of the reports for the Government to finally set up an independent judge-led inquiry into UK complicity in US torture and rendition post-9/11.
The ISC reports
The first report from the ISC – a committee tasked with oversight of the UK intelligence services – covers UK complicity in U.S. torture and ill-treatment of detainees between 2001-2010 while the second report looks at current policy and practices on the interviewing of detainees overseas and the exchange of intelligence on detainees.
The reports were published amid some controversy. The ISC decided to publish the reports despite not being satisfied that its investigations were complete. The reason for this was that the Prime Minister Theresa May imposed restrictions on the ISC’s investigation, denying it access to officers and personnel who had been on the ground at the time. The Prime Minister barred access to key witnesses on the grounds that the officers in question were junior at the time and due to their involvement in legal proceedings. The result was that the ISC’s list of potential witnesses was reduced to just four. Furthermore, even those individuals would not be allowed to give evidence on specific cases.
Explaining its decision to publish the findings of the incomplete investigation, the ISC stated:
The terms and conditions imposed were such that we would be unable to conduct an authoritative Inquiry and produce a credible Report. The Committee has therefore concluded – reluctantly – that it must draw a line under the Inquiry. This is regrettable.
Despite the limitations placed on it, the ISC managed to make progress beyond that of earlier investigations (on which more below). While the Committee found no evidence indicating that UK agency officers or Defence Intelligence personnel directly carried out physical mistreatment of detainees, it found evidence of two cases in which UK personnel were directly involved in detainee mistreatment administered by others.
Key findings relating to awareness of mistreatment:
- Immediately after 9/11, senior UK agency staff were briefed by US agencies. The Committee concluded that these briefings clearly show US intent with respect to torture and rendition. This should have been taken seriously and not dismissed as rhetoric.
- The Committee found 13 incidents recorded where it appears that UK personnel witnessed at first hand a detainee being mistreated by others. Action did not follow.
- The Committee found 25 incidents recorded where UK personnel were told by detainees that they had been mistreated by others. Investigation of this was not found to be consistent.
- The Committee found 128 incidents recorded where UK agencies were told by foreign governments’ intelligence liaison services about instances of what appears to be detainee mistreatment.
Key findings relating to sharing of intelligence:
- Post 9/11, UK agencies shared an unprecedented amount of intelligence with foreign liaison services to facilitate the capture of detainees. The ISC found that the agencies failed to consider whether it was appropriate to pass intelligence where mistreatment of detainees was known or reasonably suspected.
- The Committee found 232 cases recorded where it appears UK personnel continued to supply questions or intelligence to liaison services after they knew or suspected (or should have suspected) that a detainee had been or was being mistreated.
- The Committee found 198 cases recorded where UK personnel received intelligence from liaison services obtained from detainees whom they knew or ought to have suspected had been mistreated
Key findings relating to rendition:
- The Committee found that there was no coordinated attempt by UK agencies to identify the risks involved in rendition and formulate the UK’s response. There was no understanding in the UK Government as to what was meant by the term ‘rendition’ and no recognition of the need for policy on it.
- In three individual cases, UK agencies made, or offered to make, a financial contribution to others to conduct a rendition operation. These renditions were classed by the Committee as ‘extraordinary renditions’ due to the real risk of torture or other mistreatment of the detainees.
- UK agencies also suggested, planned or agreed to rendition operations proposed by others in 28 cases.
The ISC investigation is not the first inquiry into UK complicity in U.S. torture and rendition to be stymied in its efforts to undertake a thorough investigation. An earlier inquiry chaired by retired senior judge Sir Peter Gibson was discontinued in 2012 due to ongoing police investigations into allegations of UK involvement in torture and rendition (the full text of Gibson’s interim report is here).
Even if Gibson’s inquiry had been allowed to continue it is unlikely that it would have gotten to the bottom of the UK’s involvement in U.S. torture programs. Civil liberties organizations raised concerns at the time, arguing that the process lacked credibility and transparency and refused to engage due to the inquiry’s secretive process.
The current Government’s obstruction of the ISC’s investigation therefore follows the pattern of successive governments, unwilling to set up a full, independent judicial inquiry into UK complicity in torture and rendition in the aftermath of 9/11. And therein lies the problem: in the UK, the executive branch dictates whether an inquiry takes place, by whom and with what powers. Under the Inquiries Act 2005, only a Government minister can establish a statutory inquiry. That minister then decides who is to chair the inquiry, any proposed members of the panel, and the terms of reference. Only once a statutory inquiry has been established is it then formally independent. However the executive holds the cards until that point.
Alternatives to statutory inquiries under the Inquiries Act exist, however they suffer from their own pitfalls. First, it is again only a minister who can set one up. Second, they lack the subpoena powers of their statutory counterparts and evidence cannot be given under oath. Finally, non-statutory inquiries have been criticized for lacking independence and face concerns around the greater power to hear evidence in private.
An obvious comparator is the 2014 Senate Intelligence Committee report on CIA torture. Without downplaying the many challenges and controversies around that report and its publication, it is nevertheless difficult not to become frustrated in the UK at the comparatively limited powers of parliamentary committees to carry out robust oversight and to undertake inquiries which may not be popular with the government of the day, but which are vital in the public interest.
The Government’s response
Following the publication of the ISC reports in June, the UK government committed to give careful consideration to calls for a full judge-led inquiry and the ISC’s recommendations, promising to report to Parliament within 60 days. The UK government went on to quietly miss its own deadline, making a vague commitment to respond in the fall.
The government’s eventual response published in late November fails to meet even basic expectations. On a number of key points the response is lacking. As I have already mentioned, the response is completely silent on the matter of an independent inquiry (though this was expected). Further, the government does not engage with the ISC’s sharp criticism of its refusal to grant it access to critical witnesses in the course of its investigation. Finally, the response does not meaningfully engage with the very serious findings of operational failings on the part of UK agencies in the period following 9/11. Instead, the response seeks to rely on flawed policy guidance on overseas detention and intelligence sharing – published in 2010 and provided to officers and personnel – as panacea to the issues which arose in the years prior. What the response does not properly acknowledge is that the guidance is widely considered unfit for purpose and is currently under review.
Overall the UK government’s response suggests an executive branch overly protective of its agencies at the expense of transparency and accountability. This view was echoed by Kenneth Clarke – an influential MP and chair of a cross-parliamentary group on extraordinary rendition – who described the response as “woeful” and “an attempt to whitewash the past.” As he rightly points out, the Government’s claim in its response that “all detainee-related cases of potential concern have been scrutinized” is simply wrong. It ignores the controversial Belhaj case – where a man and his pregnant wife were rendered with MI6 to Libya where they were tortured by the Gaddafi regime – which has not been scrutinized by any independent body at all. And new revelations keep coming – in mid-November this year further details emerged about MI6’s role in CIA torture of Ibn al-Sheikh al-Libi.
As things stand, it is not clear when or even whether the UK government will in fact heed calls and take a decision on holding a proper inquiry. Unfortunately, that means that the full truth about the UK’s role in post-9/11 torture and rendition remains unknown and those responsible have not yet been held to account. Moreover, it is only from an honest and self-critical appraisal of the extent of the UK’s complicity that vital lessons can be learned so that nothing similar is permitted to happen again.