As the controversy over torture gathers pace, it is ‘open season’ on the intelligence agencies — investigated by the police and challenged by MPs. Scrutiny is fine, says Matthew d’Ancona — but beware of making life impossible for those responsible for our security
‘One question at any rate was answered. Never, for any reason on earth, could you wish for an increase of pain. Of pain you could wish only one thing: that it should stop. Nothing in the world was so bad as physical pain. In the face of pain there are no heroes, no heroes, he thought over and over as he writhed on the floor, clutching uselessly at his disabled left arm.’
The agonised thoughts of Winston Smith in Nineteen Eighty-Four, though fictional, say all that needs to be said about torture: its wickedness and futility. A man in pain will say whatever he thinks will make the pain stop: it might be the truth, but it is just as likely to be nonsense.
My first job in journalism was at the human rights magazine Index on Censorship: it was a given that torture was utterly beyond the pale, so abhorrent that its immorality scarcely needed to be stated. I still regard this as an article of faith. Yet, in the past week, it has proved necessary for the Foreign Secretary, Home Secretary and head of MI6 to say that they are against torture — as if the matter might be in some doubt.
In a co-authored article in the Sunday Telegraph, David Miliband and Alan Johnson wrote: ‘It is about our values as a nation, and about what we do, not just what we say. We have taken a leading role to eradicate torture internationally, both through organisations such as the UN and by assisting other countries.’ In a BBC radio programme broadcast on Monday, Sir John Scarlett, the head of the Secret Intelligence Service (SIS) said that there is ‘no torture and no complicity in torture’ by MI6 and that ‘our officers are as committed to the values and the human rights values of liberal democracy as anybody else’.
A statement of the obvious verging on the otiose, you might think. But these are abnormal and testing times for the intelligence agencies which suddenly find themselves encircled. The Metropolitan Police is conducting what appears to be its first ever investigation into the conduct of the security service, MI5: the case in question being the alleged collusion of British agents, and one in particular, in the torture of the UK national, Binyam Mohamed, in Pakistan. Meanwhile, hostile politicians and pressure groups are calling into question not only the moral standards of the services but the whole structure of scrutiny by which they are regulated.
Last Sunday, the Commons Foreign Affairs Select Committee published a report that challenged the government to prove it had not been complicit in the torture of terror suspects and demanded substantial changes to the present regulatory framework for the intelligence agencies. This followed a separate report by the Parliamentary Joint Committee on Human Rights on 4 August which called for a full public inquiry into allegations of British ‘complicity’ in acts of torture. The spooks are feeling — well, spooked. ‘It’s open season on the services,’ says one Whitehall source.
To understand why this is so, the extent to which the criticisms are legitimate, and how great are the risks inherent in this feeding frenzy, one must grasp the broader context. Half a century has passed since the days, described in Peter Wright’s infamous Spycatcher, when MI5 ‘bugged and burgled our way across London at the State’s behest, while pompous bowler-hatted civil servants in Whitehall pretended to look the other way’. The intelligence agencies are now subject to a four-pillar regulatory regime, at the heart of which is the Intelligence and Security Committee: chaired by the Labour MP for Pontypridd, Dr Kim Howells, and composed of parliamentarians, but appointed by the Crown.
This structure means that MI5, MI6 and GCHQ experience levels of scrutiny which would have been unthinkable in the frozen depths of the Cold War. But — as bodies that remain fundamentally clandestine, rising above the parapet only when they have to — the agencies are at odds with the spirit of the age. This is an era of radical transparency and, in most cases, the better for it. The Telegraph’s triumphant disclosure of MPs’ expenses; the photographic identification this week of Baby P’s killers; the disclosure, after long battles, of the legal advice given to Tony Blair over the Iraq war; countless Freedom of Information inquiries that have underpinned investigative journalism in this and many other publications: it is an axiom of our times that daylight is the best disinfectant.
By definition, of course, there are certain parts of the state that cannot function properly in the light: clandestinity is the foundation stone of any intelligence agency and the means by which it protects not only its personnel but its hard-won techniques and methods: the play-book that, once revealed to the enemy, becomes instantly useless. The instinctive secrecy of the services is not superstitious or maliciously obstructive but a matter of operational necessity. It is not the public’s scrutiny that they seek to escape, but the scrutiny of the bad guys — precisely so that they can discharge their duty to protect the public interest.
The controversy over torture — encapsulated in, but not confined to, the Binyam Mohamed investigation — has dramatically increased the pressure upon MI5 and MI6 to make disclosures about individual cases and general procedure. And it is likely that the agencies will have to make concessions in order to maintain public confidence: in March, for instance, the Prime Minister promised to disclose the hitherto-secret guidelines given to intelligence officers about the handling of detainees overseas. The demands for tougher, more intrusive regulation — particularly that the Intelligence and Security Committee should become a fully-fledged parliamentary select committee — will continue.
This moment of reckoning was probably inevitable. Public trust in the intelligence agencies has been dented by the fiasco of the Iraq dossiers, the criticisms of the Butler Report on the intelligence used to justify the war, and (unreasonable) allegations that the 7/7 attacks could have been prevented by better counter-terrorist work. More generally, there has been a growing desire on both sides of the Atlantic to revisit the intelligence strategy adopted in the immediate aftermath of 9/11 and to see what lessons can be learned.
All of which is fine, as long as the investigations are carried out in the proper spirit and in the right setting. Where the law has been broken, the matter should be settled in court. But it is a huge and unnecessary leap to demand a full judicial inquiry — and one modelled, as the Joint Committee on Human Rights suggested, on the 2006 Canadian Arar Commission which investigated allegations of ‘complicity’ by Canadian agencies in the rendition and torture of a Canadian citizen. With due respect to the land of the maple leaf, it has not exactly been in the front line of the war on terror. The symmetries between the experience of the two nations since 9/11 are negligible.
Nor is it sensible to confuse what happened in the American intelligence community after September 11 with what happened here. As Cofer Black, the director of the CIA’s Counterterrorist Center from 1999 to 2002, memorably told the joint investigation into the September 11 atrocities: ‘This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off.’ Quite how far the gloves came off was not fully appreciated by the Americans’ intelligence ‘cousins’ in London; and — crucially R 12; there was no comparable change of strategy here. On 16 April, President Obama released the four notorious ‘torture memos’ drawn up by the Bush administration covering the ‘enhanced interrogation techniques’ used on certain detainees, including waterboarding and the use of insects in confinement boxes. No such memos were drawn up by the UK government. Indeed, there is still a measure of shock in Whitehall at how far US policy went in this regard, mostly unbeknownst to MI5 and MI6. Let America re-litigate that period if it wishes: it does not follow that Britain should embark upon a similar auto-da-fé.
There is a thin line between proper and necessary scrutiny on the one hand and vexatious political grandstanding on the other. Take the question of ‘complicity’, for instance. In its report, the Joint Committee on Human Rights condemned what it called the ‘general practice of passively receiving intelligence information which has or may have been obtained under torture’. The notion of ‘passive receipt’ is so vague as to be practically meaningless. Indeed, the committee itself acknowledged that ‘the “one-off” use of information obtained by torture might be justified in a genuine case of necessity to protect life’. On Monday’s Today programme, Shami Chakrabarti, the director of Liberty, conceded that — were she Prime Minister or Met Commissioner — she too would act upon intelligence that might save lives, irrespective of its origin. ‘I would make that arrest and ask questions later,’ she admitted.
It is in this grey zone of operational necessity and unpalatable judgments that the intelligence agencies operate, every day. We might wish that it were not so. But it is. The Binyam Mohamed case achieved notoriety in February when the High Court ruled that certain evidence concerning his alleged torture could not be disclosed. The judges made clear that they were deeply unhappy with a decision forced upon them by geopolitical reality: ‘The United States government’s position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided.’
According to those who have read all the relevant files, the redacted information was not as incendiary as one might suppose from the US government’s insistence that it not be published. But David Miliband was right to advise the court as he did of the risks to intelligence-sharing. The basis of all such sharing is that the country which ‘lends’ intelligence to an ally retains ownership of it — no matter what its content. It was this principle upon which the Americans were insisting. The Foreign Secretary was criticised for going along with their demands: but his judgment was correct. The stakes were extremely high, and the White House — even the nice, cuddly new Obama White House — meant business.
Indeed, the practicalities of international intelligence-sharing are the true heart of this furore. The global nature of the Islamist threat means that narrowly defined ‘national security’ is an almost meaningless concept: or, as some engaged in counterterrorism put it, the UK can’t be defended at Dover. The common factor in all the significant terror plots that have been investigated in this country since 9/11 has been the reliance to a greater or lesser extent upon overseas sources of intelligence. About 75 per cent of cases investigated by MI5 now involve connections with Pakistan or Afghanistan.
The moral corollary of this is that the British government — ministers, diplomats, intelligence officials — must reiterate to the authorities in Islamabad time and again that torture is not acceptable and that its practice by the Pakistani ISI disfigures the alliance between our two nations. But that moral responsibility is not, and cannot possibly be, absolute.
The Foreign Affairs Select Committee ‘take[s] the view that asking the Pakistani security services to interrogate a detainee suspected of terrorism, without being present to ensure the person is not mistreated, or conditioning co-operation on an end to these practices, is essentially a request to use torture to obtain information.’ This is plain daft: it expects of the intelligence agencies a sort of global moral imperialism, the power to force other governments to behave impeccably in all circumstances. Patently, no such power exists. Nor is it the primary task of British intelligence agencies to monitor the conduct of their foreign counterparts. Their primary task is to gather and sift intelligence that may be deployed in the protection of UK citizens and the broader cause of defeating global fundamentalist Islam.
A decadence is creeping into our collective approach to this conflict against terror — a national amnesia about the nature of the threat, a retreat into the comfort zone of national introspection. Let the courts do their work and punish those who have broken the law. Let us lose no opportunity to declare this country’s abhorrence of torture.
Equally, however, let us not soar so high above the lethal ground upon which our intelligence agencies have to operate that we make their work impossible. It may satisfy some to watch the spooks squirm. But be careful what you wish for. A nation which turns moodily on those responsible for its security is actually practising nothing more sophisticated than self-harm.