From the Sunday Times, London (
http://www.timesonline.co.uk/article/0,,2087-1869607,00.html):
November 13, 2005
Defending the realm - but at what cost?
Tony Blair and George Bush say legal rights must be sacrificed in the war on terror. But both face mounting opposition. Richard Woods, Andrew Porter and Sarah Baxter report on the global battle to balance security and liberty
Inside Guantanamo Bay prison Jumah Dossari had reached the end of his tether. Captured in Pakistan in 2001, he had spent four years locked up as a terrorist suspect, including two in solitary confinement; he could take it no more.
While meeting his lawyer last month, he asked to go to the lavatory; minutes later he was found hanging from a noose tied to the ceiling.
Dossari’s suicide attempt — he survived — is one of more than 30 at the camp. As captured “enemy combatants” they have reason to despair. On Thursday the US Senate passed an amendment that, if confirmed by the House of Representatives, will prevent the prisoners making a legal challenge against their detention. No habeas corpus for them.
For in the war on terror, President George W Bush is determined to use whatever measures he can. On Friday in a speech attacking both his critics and Islamic extremism, Bush reiterated his determination that “the defence of freedom is worth our sacrifice”.
He explained: “We are facing a radical ideology with inalterable objectives: to enslave whole nations and intimidate the world. Against such an enemy there is only one effective response: we will never back down.”
Like Bush, Tony Blair is also uncompromising in the face of the terrorist threat. He, too, is intent on ratcheting up the powers of the state. Last week the prime minister fought hard to grant police the power to detain suspects, British or foreign, without charge or trial for up to 90 days.
In the House of Commons, Blair quoted a senior police officer to make his case. “We are not looking for legislation to hold people for up to three months simply because it is an easy option,” he said.
“It is absolutely vital. To prevent further attacks we must have it.”
It did not convince MPs. Defied by 49 Labour rebels, Blair went down to a crushing defeat. He promptly accused opponents of betraying the country and imperilling its citizens. “The country will think parliament has behaved in a deeply irresponsible way,” he said.
Others believe that the trade-off between security and civil liberties is not so easy to judge. Get the balance wrong and it can make the terrorist threat worse, they say. Focus too much on new legislation, others add, and you risk taking your eye off the main game — making sure our police and security services are working effectively.
“Britain and the US are debating the balance between competing interests: the rights of individuals on the one hand, and the rights of the community as a whole to take appropriate protective measures,” said Professor Philippe Sands, author of Lawless World, a study of international law and human rights.
“You are balancing competing objectives to ensure agencies have time to investigate while adequately protecting communities — without doing so in a way that exacerbates the problem,” he said.
Other governments are grappling with the same dilemma. Australia, where this month police claim to have thwarted a significant attack, is proposing tough new laws — although only 14 days’ detention without trial.
The Netherlands, where Islamic extremists have threatened to murder public figures, is debating whether to make it easier to detain suspects. Are such draconian powers necessary? Are they effective? How far should governments go in combating terror?
AFTER the planes slammed into the World Trade Center and the Pentagon in 2001, there was no mood for restraint. More than 3,000 people were dead. Tough action was needed.
Within days Bush signed a presidential “finding” giving the CIA the right to kill or capture Al-Qaeda terrorists anywhere in the world. Within a few weeks Bush declared that it was “not practicable” to try some suspected terrorists under US principles of law. Instead, the benefits of torture became acceptable dinner party conversation.
People who would normally abhor applying the thumbscrews earnestly debated whether the risks of further atrocities justified brutal treatment of suspected terrorists.
Learned articles were written about the liberal case for torture and Alan Dershowitz, the Harvard law professor, said it outright: if you had in custody somebody with knowledge of an imminent outrage, that person was fair game if it might save thousands of lives.
Dershowitz, however, advised: “If torture is going to be administered as a last resort to save an enormous number of lives, it ought to be done openly with accountability and approval from the president of the United States or a Supreme Court justice”.
It did not turn out like that. Instead, the CIA set up a secret network of “black sites” in foreign countries where captured suspects could be held and interrogated in secret, beyond normal laws. As Cofer Black, then head of the CIA’s counter-terrorism centre, told Congress: “After 9/11 the gloves came off.”
Robert Baer, a former covert CIA agent, said 9/11 was the end of “our rule of law as we knew it in the West”.
Hundreds of suspects are believed to have passed through the system, among them Maher Arar, a Syrian- Canadian resident of Ottawa, who claims that he was seized at New York airport in 2002 while returning from a holiday in Tunisia. He was sent by private Gulfstream jet to Syria where he was imprisoned and, he claims, beaten with electric cables. He was released after a year.
In January 2004 Khaled el-Masri, a German citizen, was bundled aboard another CIA plane after being arrested in Skopje, Macedonia. He was flown to a secret prison in Afghanistan. After six months he was released — but only after he had gone on hunger strike and thanks to the intervention of Condoleezza Rice, then national security adviser, who discovered he that was a victim of mistaken identity.
According to investigations by The Washington Post, the United States has operated covert prisons in eight countries, including some in eastern Europe. Inside these jails are believed to be the most senior Al-Qaeda captives who have “disappeared” after being seized. Nobody, apart from a few senior officials in the CIA and White House, knows where they are.
In the face of an unprecedented threat, America has deployed tough interrogation techniques. Donald Rumsfeld, the US defence secretary, did not object to prisoners being made to stand for more than four hours. “I stand for eight hours a day,” he said.
In a 2002 memo about interrogation at Guantanamo. Rumsfeld approved the “removal of clothing”, the “use of stress positions” and isolation for 20 days. He also approved “using detainee phobias” (such as a fear of dogs) to “induce stress”.
Among techniques used for interrogation in the secret prisons is said to be one known as “waterboarding”. This involves immersing the suspect’s head until they think they are about to drown.
These extreme measures have been kept deliberately offshore, largely beyond US legal jurisdiction. Within the United States, although tough checks and extensive surveillance are employed, fundamental rights have remained.
In theory US citizens have a greater right to freedom or fair trial than Blair was proposing for Britain (although American authorities can find ways round these rights). If a US citizen is arrested, he/she must be either charged or released within 72 hours.
BRITAIN has taken a different tack. Eschewing secret prisons offshore, it has tried to amend UK law to cope with terrorist fanatics. The initial response to 9/11 was the Anti-terrorism, Crime and Security Act 2001. It rushed in the power to detain suspects without trial — but only non-UK citizens and they were given the option of returning to their home countries. Other laws have allowed police access to personal data, such as mobile phone records, simply on the authority of a police inspector or higher rank.
Initially the law on detention of British citizens remained unchanged. They could not be held for more than seven days, after which they had to be either charged or released.
As the threat from Islamic fanatics spread, the pressure for tougher powers was cranked up. In 2003 the government doubled the period of detention without charge to 14 days on the recommendation of senior police officers.
A legal challenge to the imprisonment of foreigners without trial led to another change: out went the disputed part of the anti-terrorism act and in came new “control orders”. Under this power the home secretary can now hold any suspect, British or foreign, under virtual house arrest and prevent them communicating with the outside world.
At the same time the police quietly developed a “shoot-to-kill” policy aimed at stopping suicide bombers before they could detonate devices.
In July this year the London bombings intensified the pressure for additional draconian measures. Senior officers decided that having the power to question suspects for longer could help to prevent future attacks; Blair duly obliged with a proposal for 90 days’ detention without charge.
Were he and the police right to claim it was vital? The Law Society does not think so.
“The police want to extend the period which terror suspects can be held without charge so they can be questioned further,” said Kevin Martin, president of the society. “But this power already exists.”
Under the Police and Criminal Evidence Act (Pace), suspects in special cases can be questioned after being charged if it is necessary to “prevent harm or loss to some other person”. If necessary Pace could be adjusted to make that power absolutely clear. Such a move, the Law Society suggested, would be better than undermining the general principle of no detention without trial.
Others pointed out that 357 people have been arrested under the latest Prevention of Terrorism Act and only 11 were held for the full 14 days allowed. All those 11 were then charged. There is, then, scant evidence of suspects being set free because the police do not have the necessary power to hold them.
LAST week as unrest among MPs became clear and the vote drew closer, Downing Street grew desperate to force the measure through. It was becoming a test of the prime minister’s authority.
Gordon Brown, the chancellor, was ordered back from Israel where he had just landed for an official visit. Turning straight round he flew back to Heathrow where he was handed an envelope. Inside was a list of MPs. “Are these the ones I have to speak to this afternoon at the Commons to try to win them round?” he asked his aide.
“No, these are the ones you need to speak to now on the phone before you get back there,” was the panicky reply.
Once back in Westminster, Brown found a conveyor belt of arm-twisting under way. Recalcitrant MPs were sent first to Hilary Armstrong, Labour’s chief whip, in an attempt to lash them into line. If that failed, they were bounced on to Brown. If he could not persuade them to support the 90-day detention plan, they were invited to see Blair.
Even as MPs trooped through the voting lobbies, Blair could be seen trying to cajole MPs into supporting the measure. It was doomed. The vote — 322 against, 291 for — was a devastating rebuff.
Minutes later, however, MPs did vote to accept an increase in detention without trial to 28 days. It means that within little more than two years the amount of time a British citizen can be held without charge has quadrupled.
Nor, it turns out, are British authorities averse to the proceeds of torture. According to official papers released last week, the government may have operated a secret torture centre during the second world war to extract information from German prisoners.
Today Britain does not engage in torture but it does make use of information gleaned through torture perpetrated by others.
In a submission to a legal case heard in the House of Lords last month, Eliza Manningham-Buller, director-general of MI5, tacitly admitted that the intelligence services receive information from overseas agencies that might be obtained by torture.
“We treat such intelligence with great care,” she wrote, because its reliability could be difficult to assess and because “detainees can seek to mislead their questioners”. But she concluded that it is more useful to have the information than not to have it.
EVEN campaigners for civil liberties accept that governments must act to protect citizens against indiscriminate terror. “There is a serious terrorist threat,” said Shami Chakrabarti, director of the civil rights group Liberty.
She admits that exceptional cases — such as a suicide bomber boarding a school bus — might demand exceptional individual responses, including the possible need to shoot to kill. But she is adamant that such “operational” dilemmas do not justify a general sacrifice of fundamental values.
Otherwise, she argues, the West risks losing the ideological battle, thereby simply encouraging the extremists.
To illustrate the problem, she points to the videotape recorded by Mohammad Sidique Khan, leader of the London suicide bombers. Khan justified his attack by invoking Islam but also by accusing the West of “bombing, gassing, imprisonment and torture”. He described himself more as “a soldier at war” than on a religious mission.
The video claimed that the “twin idols of freedom and democracy in the West” had been demolished and that western nations had turned into police states.
“This isn’t a police state,” Chakrabarti said. “But the danger is that the rule book is being thrown away. We’ve come a fair way down a slippery slope.”
The risks are increasingly recognised in the United States. The neo-cons are coming round to the view that the secret detentions and tacit approval of torture are undermining their most cherished cause: spreading democracy in the Middle East.
Jeffrey H Smith, a former general counsel of the CIA, last week pilloried a bid by Dick Cheney, the vice-president, to exempt the CIA from a ban on “cruel and degrading” treatment of prisoners. “If the vice-president’s proposal is adopted,” he wrote, “the CIA will presumably be free to bolster democracy by torturing anyone who does not embrace it with sufficient enthusiasm. Some democracy.”
Even David Rivkin, a leading lawyer highly supportive of Bush, balked last week at the Senate amendment to suspend habeas corpus for foreign prisoners. His reason? Because such policies have “provoked considerable controversy at home and abroad”. In other words, it was damaging the ideological battle.
Anti-terrorist measures in Britain have not gone so far. But the trouble, said Chakrabarti, is that the slide towards extremism is all too easy to overlook. She drew on an analogy from a scientist.
“If you throw frogs into a pan of boiling water, they will hop out,” she said.
“But if you take a pan of cold water and gradually heat it up, they will allow themselves to be boiled alive.”
HOW AMERICA TOOK THE FIGHT TO THE ENEMY
American lawmakers made absolutely clear the purpose of their main measure to combat terrorism. They called it the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, which in acronym reads as the USA Patriot Act.
It radically extended the powers of law enforcement agencies to carry out surveillance by allowing them to study personal telephone and internet records on extremely broad grounds. The only legal requirement is that records are deemed “relevant for an ongoing investigation concerning international terrorism or clandestine intelligence activities”.
The act also created new powers to detain foreigners and to revoke American citizenship, which could remove the usual protections of the US constitution. But the most draconian legal element in the new anti-terror arsenal was the designation of suspects as “enemy combatants”, placing them beyond the protection of US domestic law. Under that provision they can be detained indefinitely, as hundreds have been at Guantanamo Bay and other prisons beyond America’s shores.
Although this formula may have shielded President George W Bush from criticism that he is undermining the legal rights of ordinary Americans, it has damaged the image of the United States abroad. Its enemies can argue that America has one rule for its own and another — much harsher — rule for foreigners.
The US system of detaining prisoners abroad has, according to one Amnesty International official, led to an “archipelago” of secret jails. This charge prompted outrage in America because it seemed to echo the brutal “gulag archipelago” of camps for political prisoners in the former Soviet Union.
So far the “enemy combatants” provision has been applied mainly to foreign nationals captured abroad; it has been used on American soil in only three cases.
John Walker Lindh, the only US citizen caught fighting for the Taliban in Afghanistan, was allowed the full legal rights of a defendant in the US courts.
By contrast, foreign nationals claim that they were seized and summarily dispatched to prisons in far-flung places. Flight details of planes believed to be operated by the CIA lend credence to their accounts.
