This article appeared in 'The Times' on Monday 15th February 2010.

http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article7028220.ece

"Our Courts Must Stand

Up to the Bullies"

If you listen to government ministers and their supporters, you might be forgiven for thinking that the behaviour of the British courts in the Binyam Mohamed case was unusually aggressive, unique even. You might be led to believe that our courts were alone among the judiciary of America’s allies in their challenge to torture and rendition.

You would be wrong. Indeed, by comparison with Canada, Germany and Italy our courts have been courteous to the point of deference to the Foreign Secretary and, through him, the US authorities.

Courts in Canada, Germany and Italy have been vigorous in upholding the rights of suspects not to be abducted and tortured, and in making public information about the actions of their own and the US intelligence services, where appropriate. I have been unable to find any threats by America to withhold intelligence co-operation from these allies. Nor have I been able to find allegations by their governments that their courts are dupes of al-Qaeda, the line peddled by Whitehall last week.

The Canadian courts have gone so far as to release video footage of an alleged terrorist, Omar Khadr, being interviewed by Canadian intelligence officers in Guantánamo, showing him breaking down in tears. This was against the wishes of the Canadian and US governments.

More dramatic still was the case of Maher Arar. A dual-nationality Canadian of Syrian origin, he was stopped while passing through New York, on information provided by the Canadian Secret Intelligence Service. He was not sent to the Canadian border, but to Syria. The Syrians tortured him for ten months before returning him to Canada.

The Canadian Government instituted a judicial inquiry, which found that Mr Arar had been tortured and cleared him of terrorism. The Government apologised and the Commissioner of the RCMP, the Canadian police, resigned.

The sensitivity of the Americans to this case led them to invoke a secrecy clause known as State Secrets Privilege against Arar in a US court case. This is something they did not do in the US case involving Binyam Mohamed.

But the Canadians are as nothing compared with the German courts in the case of Khalid el Masri. This Kuwaiti-born German citizen was picked up in Macedonia by a CIA snatch team and spirited away to a secret CIA prison in Afghanistan. Here, he claims, he was beaten and abused. It seems likely that the CIA decided that they had got the wrong man, as they dumped him, penniless, on a road in Albania. Again the Americans used State Secrets Privilege to prevent the release of information in a case brought in the US courts by Mr el Masri.

On January 31, 2007, the Munich prosecutor issued arrest warrants for 13 CIA agents on information provided by the authorities in Spain, where the rendition flight is said to have originated. Those cases have not been pursued. However, in November last year, the Italian courts found 23 CIA agents guilty of abducting a suspect in Milan and taking him to Egypt for torture.

I, for one, prefer our own courts’ more measured approach. But consider how The New York Times compared the Italian decision with their own courts’ refusal to deal with the Maher Arar case: “The Italian court got it right,” it said. “The American court got it miserably wrong.”

So where does this leave the British courts? First we should understand that British courts recognise that in a democracy secretaries of state are appointed to exercise their judgment. You can see this in the almost excruciating lengths to which last week’s judgment went to give the Foreign Secretary the benefit of the doubt. It put the kindest interpretation on everything.

Second, it demonstrates how implausible is the threat to withhold intelligence co-operation. Will the Americans really cut off co-operation with Britain, Canada, Germany and Italy, just because their courts uphold standards we are all supposed to believe in?

Third, it demonstrates quite how disgraceful the Whitehall-inspired attack on our judges last week was. Far from being irresponsible, the judges were being the model of calm judicial reasonableness.

Of course, stories of rendition and torture are a propaganda gift to our enemies. But the authors of that gift, are the members of Western intelligence agencies who precipitated those barbarous actions, and all who acquiesced in their doing so.

It is categorically not the responsibility of those — be they judges, lawyers, campaigners, journalists or politicians — who seek to expose and correct these errors. Indeed, it would be a further propaganda gift if we compounded one departure from civilised standards on torture with another from our standards of impartial justice and open democracy.

Today the Appeal Court begins considering fresh submissions on whether to publish the paragraph expressing its critical judgment of the intelligence agencies. I hope it decides to do so, not because I wish to see that criticism, but because it will demonstrate the independence of our courts from political bullying.

Whatever it does, it will not close this issue. The only thing that will do that will be a full judicial inquiry. This is not an issue that should be resolved by grinding through large numbers of civil court actions. That will paralyse the agencies. An inquiry, with instructions to be as transparent as possible within the limitations of protecting national security, will be quicker and more effective in ensuring that justice is done and that the West never makes this terrible mistake again.