Rhetoric and reality | Franck Martin

Clive Stafford Smith OBE, former death row attorney, lawyer for Binyam Mohamed, and founder of the human rights charity Reprieve, speaks to Franck Martin about Guantanamo Bay and the profound significance of the legal case of Mr. Mohamed.

‘The rules have changed, you don’t get a lawyer.’ Such a reply is not what one would expect having asked a member of the FBI for the right to legal representation. Yet these simple, callous words were the response Binyam Mohammed received as he tried to ascertain why he had been abducted while holidaying in Pakistan.

Legal protection is a fundamental human right, but from the ashes of 9/11 a shadowy disregard for such norms emerged within certain factions of Western security services. Faced with the ‘9/11’ threat, the White House washed the color from its international relations strategy, exemplified by Bush’s now infamous black and white philosophy: “You are either with us or against us”. For the organizations charged with the task of defeating the enemies of the state, international law became as meaningless as the rights of their captives and sadly for Binyam, the United Sates had decided that he was firmly against them. The extent to which the British Government endorsed these clandestine activities remains unclear, but the case of Binyam Mohamed has parachuted the issue of torture (in particular for the UK, complicity with torture) into the public consciousness and the government has found itself having to respond to some extremely difficult questions.

Clive Stafford Smith has been a booming voice in a growing chorus of discontent. As information enters the public sphere more and more people are demanding to know the extent of the government’s knowledge of prisoner mistreatment by the United States. He is also the founder of Reprieve, a campaigning legal charity based in London. Its mandate is simple and in following it the organization has found itself at the centre of the Binyam storm: “Use the law to enforce the human rights of prisoners on death row or in Guantánamo Bay, promote the rule of law around the world, and secure each person’s right to a fair trial.” Having originally been set up to assist those facing the death penalty in the bible-belt states of the US, the events of 9/11 forced Reprieve to widen its focus to help a new type of prisoner being held in a new type of prison.

As a lawyer with 25 years experience of working on behalf of clients on death row, and as a man who has witnessed firsthand the realities of Guantanamo, I begin by asking what the conditions are really like. “This is a long question” he replies. “Briefly, I have visited almost all the worst death row prisons of the South, and Guantánamo bay is worse than any of them.”

With the entire existence of the prison based on the shaky premise that the people of the United States and the wider Western world are now safer because these men are locked away, I ask if he believes that the prisoners detained in Guantanamo are indeed hardened terrorists. His simple, blunt response is more emphatic than any lofty phrase can ever be. “No!”

Following interviews with Binyam, Reprieve learned that on 21 July 2002 he was rendered to Morocco on a CIA plane where he was held for 18 months in appalling conditions – he was 23 years old. There he was tortured, suffering horrific treatment ranging from genital mutilation to extreme sensory deprivation. During this time he was repeatedly questioned on the actions of British Muslims, information that could only have been ascertained by security agencies working for the British government. From there he was taken to the US military prison at Bagram airbase. In September 2004 he was taken to Guantánamo Bay, where he remained until February 2009 when he was released – having recently turned 30.

The unlawful detention of “enemy combatants” which took place in Guantánamo Bay has come to be regarded as one of the most potent and controversial modern symbols of American regression from conventional legal and humanitarian norms. The Bush administration argued that the geographic position of the prison (on Cuban soil) gave them a legal basis for avoiding any code of international or domestic law, and most importantly the Geneva Convention, despite the fact that the detention centre was a US military base. In real terms, individuals such as Binyam found that they were locked in a prison that was paradoxically outside the law.

Defense Sectary Robert Gates is quoted as saying the prison should be closed ‘because of all the things that happened…there is a taint about it.’ I ask Clive what he thinks he is referring to: “The issue here is the simple truth.  There is no doubt that Guantánamo Bay has been a recruiting sergeant for extremism. The US actions are hypocritical – saying we are fighting a war for the rule of law, and then denying legal rights to Muslim prisoners – and hypocrisy is the yeast that breeds hatred.  A CIA officer has said that for each prisoner we have held there, we have inspired 10 to want to do us harm.  I suspect the number is far higher.  It is a monumental exercise in folly, as well as being immoral.” Sadly history is littered with such folly, from Northern Ireland to Guatemala; states have failed to realize that mistreating prisoners breeds hatred in moderates and perpetuates the conflict.

The government has been forced to confront deeply uncomfortable truths about its knowledge of, and alleged co-operation with, the United States’ treatment of Binyam Mohamed. Clive has been at the epicentre of this ongoing legal case, so what does he think it says about the British Government’s commitment to human rights? “It says a lot about British politicians’ lack of understanding of the real world. They only hear what people around them want them to hear.  So, for example, they rely on the security services for their information about security issues.  It is hardly surprising that they make such catastrophic mistakes. Most of their mistakes are, I suspect, honestly made – but I am actually more concerned about stupid decisions made without the necessary information than I am about decisions made for nefarious purposes. Those who truly believe that they have got it right are more dangerous than crooks.”

Former CIA officer John Kiriakou has been criticised for claiming that the use of torture was a policy decision made in the White House: “Officers do not simply wake up and decide to carry out an enhanced technique on a prisoner”. I ask him if he believes that the torture of individuals such as Binyam was top down or bottom up. “Binyam Mohamed revealed that he was told that the decision to render him was being made in the White House. Of course that is true.  Nobody can believe that some small fry in the FBI or the CIA could make such a decision.  This is the most important aspect of his case – tracing the decision into the White House.  I suspect it will go all the way to Dick Cheney’s office.”

If it is indeed true, as the evidence would suggest it is, that orders to torture and carry out renditions come from the top, then are cases such as Binyam’s isolated or does it reflect a growing threat to human rights? I put this question to Clive and his answer is worrying at best.

“It is an example of an epidemic. Not with respect to torture, but secrecy. The most lasting and pernicious legacy of the Bush/Blair era will be the use of ‘national security’ to override free speech and the freedom of the press. Perhaps the most dangerous aspect of this is the conflation of ‘national security’ with ‘national embarrassment’ – the governments are now using national security as the excuse to cover up evidence of their own misconduct, whether it be torture (in Binyam’s case) or their awful reasons for going to war.The events of January 20th offered a ray of hope that the United States’ unilateral response to terrorism may undergo some much needed surgery. Within a week President Obama had declared that Guantanamo was to be closed. So what impact does Clive think the new administration will have on human rights? “Obama is a decent human being.  However, those who cry ‘Mission Accomplished’ simply because we have elected a decent person are naïve.

Bush said Mission Accomplished on the USS Abraham Lincoln 42 days into the conflict in Iraq, and to date 96.2% of the coalition’s casualties have come after he announced victory.  Not to mention the other unfortunate victims of that ill-judged war.  Given all those who would rather not move to liberalism, Obama cannot achieve much without both the correct information, and the right support and pressure.”

The solutions to the problems that followed 9/11 will not be found in the revoking of treaties, the changing of norms, or the mistreatment of suspects. If Britain was involved in the torture and abuse of Binyam Mohamed then this gross mistake must be acknowledge and a full, judicial inquiry established.
The decision of Attorney General Baroness Scotland to refer the case of Binyam Mohamed to the Metropolitan Police is a positive step but it will only scratch the surface. A separate independent inquiry into these and other allegations that the UK colluded in human rights abuses such as torture, rendition, and illegal detention will be essential to ensure this issue is effectively resolved. Secrecy and will only serve to fan the flames of suspicion and extremism.

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