Alex Massie

Will British judges be “responsible” for the next terrorist attack?

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Con Coughlin has an awful piece up at the Telegraph arguing that, in the light of today's decision in the case of Binyam Mohamed, "if another al-Qaeda bomb goes off in London, the judges will be as much to blame as Osama bin Laden." Seriously. That's what he wrote. It's as preposterous as it is repellent. Happily, over at Conservative Home, Alex Deane does an excellent job dismantling this and the rest of Coughlin's diatribe here.

The crux of Coughlin's argument - in as much as there is one beyond the notion that the judiciary is inviting al-Qaeda to attack the United Kingdom - lies in the idea that the disclosure of the treatment meted out to Mohamed would damage this country's intelligence-relationship with the Americans. Well, maybe, but it seems unlikely, not least since this is the argument that is always trotted out to justify secrecy. Anything that might irritate the Cousins must be avoided at any cost, even if that means trampling on our own laws. Surely the Anglo-American partnership is robust enough to survive this sort of thing? If it isn't then a few judicial rulings are the least of its concerns.

In any case, today's ruling, far from pandering to Osama bin Laden, was made in the light of the fact that a US court has already disclosed the relevent details concerning Mohamed's treatment. To wit:

[I]n the opinion of Judge Gladys Kessler, which was declassified last Wednesday, there is credible evidence Mohamed was tortured while held at the request of the US.

It states: "Binyam Mohamed's trauma lasted two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in plots to imperil Americans. The government does not dispute this evidence."

[...]The US district court in Washington heard that most of the case against Farhi came from statements made by Mohamed under duress. Kessler noted: "Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including [Mr Farhi]. Binyam Mohamed stated he made these statements because of 'torture or coercion', that he was 'fed a large amount of information' while in detention and that he resorted to making up some stories. The [US] government does not challenge petitioner's evidence of Binyam Mohamed's abuse."

The court lays the blame for Mohamed's treatment with the US. Kessler's opinion states: "Even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans …) there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States."

All today's ruling does, then, is clarify information that was already in the public domain.

Coughlin argues, however, that:

Even when the security services have raised the  current terror threat level to “severe”, the judges are more interested in bending over backwards to accommodate deeply unsympathetic characters like Binyam Mohamed than paying proper attention to the nation’s security needs.

Poor Binyam claims he was tortured after he was caught “back-packing” in Afghanistan. Of course no one in the judiciary pays the slightest bit of notice when Binyam insists that he had travelled to Afghanistan simply to help out with some charity work, rather than, as our intelligence and security services suspect, to assist the Taliban and al-Qaeda with their plots to blow up the West. They are only interested that, once he had been safely removed from the battlefield, his human rights might somehow have been violated.

As Alex Deane asks: Should the law change because our security agencies shift the scareometer from "black" to "black special"? Of course not. The broader point is that, as used to be thought self-evident, the rules change once you hold a man in captivity. Mohamed may well be a "deeply unsympathetic" character but that no more justifies his mistreatment, and our connivance with it, than would be the case if he were obviously as pure and innocent as the driven snow. 

More broadly, we now can't know how dangerous or guilty or terrible a person he really is. Torturing him - and Con, sleep deprivation is a little different from surviving on three hours sleep a night while on patrol with the army in Afghanistan - leaves the matter cloudy, not clear.

Fundamentally, these techniques are wrong not simply because they abuse the prisoner but because they degrade us. If you don't think that's the case - and it seems plenty of people don't - then you should probably argue that they be used in a whole range of situations. If this sort of thing is fine for Binyam Mohamed then why isn't it fine for the police to use these techniques on, say, someone arrested on suspicion of murder or kidnapping or child abuse or whatever? 

But we don't permit that because, generally speaking, most of us can appreciate that it's wrong to treat people in such a fashion. It doesn't mean that we - or the judges - are on the side of suspected murderers, kidnappers or paedophiles.

So Coughlin's suggestion that "the judges just come clean and sign up with the Taliban" is among the more odious things I've read this year. If the courts constitute a fifth column, then what about the law? And once you've called, implicitly, for the judges to be arrested, then who's next?

Written byAlex Massie

Alex Massie is Scotland Editor of The Spectator. He also writes a column for The Times and is a regular contributor to the Scottish Daily Mail, The Scotsman and other publications.

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