The Guardian released last week declassified documents incriminating the previous British government (Tony Blair’s) of extraordinary rendition and of involvement in torture. Just over a year after President Obama released what are now known as the torture memos, which justified the use of torture in the War on Terror, the new British coalition government decided to shed light on its country’s involvement in similar practices. It was the Binyam Mohammed case which earlier this year ignited the debate on the involvement of the UK in torture and extraordinary rendition.

Whilst analysis of the documents themselves should be left to the lawyers, who believe it will take 10 years to investigate the 500,000 documents related to this affair, a couple of preliminary observations are in order.

Despite being rendered public over a year after the US’ torture memos, these documents testify a clear will for change from a newly constituted British government. Last year, the US release of the torture memos coincided with the newly elected Obama administration and in similar fashion, the UK’s newly elected coalition decided to investigate torture allegations only 2 months after its accession to power. Unlike the US, however, which had decided not to prosecute those guilty of torture, the UK decided to fully investigate these allegations and take action following the release of these documents.

In the UK’s documents it appears clear that there is no will to render torture more accessible: acts of torture are clearly forbidden, stress and duress techniques are prohibited and the papers clearly outline that prosecution is to be expected if these methods are found to have been used.
Yet, extraordinary rendition is evidently accounted for in these documents and breaches international law. Whilst acknowledging that prisoners were being treated inhumanely (“It appears that prisoners may not be being treated in accordance with the appropriate standards. Given that they are not within our custody or control the law does not require you to intervene to prevent this”), in Guantanamo by the US, the British government still allowed for British nationals to be sent to the American prison based in Cuba (“Subsequent to this Mubanga was handed over to US authorities and renditioned to GTMO”). Such actions were taken despite article 3.1 of the UN Convention Against Torture stating that:

“No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

The ongoing investigation is bound to reveal more about New Labour’s involvement in torture and extraordinary rendition, however it is less sure that the full investigation will be rendered public, as David Cameron stated last week, and that it will be able to restore the UK’s reputation as well as trust in Mi5 and Mi6. Only time will tell.

Last month, to quote Kings of War blogger, Rob Dover,

“a veritable poo-storm hit the British Court of Appeal (…) as a private exchange of correspondence – between the government’s lawyer Jonathan Sumption QC and the Court – became public. The government had asked that part of the judgment relating to the alleged torture of Binyam Mohammed be redacted (or removed) in the interests of protecting the reputation of our Security Service (known to nearly everyone as MI5).”

The case of Binyam Mohamed is rather complex (see this piece for starters, see also this piece for the various court rulings in pdfs, see Scott Horton’s feed for a more holistic appreciation of recent developments news on this). First and foremost, it entails a credible allegation of torture complicity by British intelligence. Yet, on closer inspection, it provides researchers with a rare opportunity to depict more general, systemic flaws with the British “art” of celebrating intelligence accountability. Amongst other things, it reveals how national security has become conflated with national embarrassment throughout the oversight proceedings on this particular accountability case.

While the official British intelligence watchdog (aka as the Intelligence and Security Committee (ISC)) has looked into this case (see its Renditions report (2007)), the most revealing information is to be found elsewhere. In Mohamed v. Foreign Secretary, the British High Court revealed (in 2008), how the ISC, which supposedly operates from within the ring of secrecy, has been kept outside of the loop in this (and arguably a number of other cases that will gradually come to the fore).

Actually, it was even worse: Not only has crucial information (about the British knowledge of American torture techniques being used on the British resident prior to his subsequent interrogation by a British intelligence official in Pakistan in 2002)  been withheld in the oversight process (arguably, this would amount to the more typical/frequent stone-walling of information by the accountee). No. This time, we know, that upon questioning, the ISC was positively misled/lied to by those who are supposed to answer to it in a factual and timely manner. Plus, and this is more delicate for the basic legitimacy of British parliamentary intelligence oversight — the public knows that the ISC was, again, not only oblivious but also unduly credulous in its handling of the matter.

So what? Well, we note that the fox who guards the henhouse has rarely been caught munching like this before. Against the backdrop of popular assertions that the ISC is fully informed, this revelation comes at a very high cost. Not only is the very credibility of Britain’s intelligence watchdog on the line. More importantly, it can threaten the very social fabric of British society. When egregious malfeasance allegations are demonstrably not properly investigated, why pay deferrence to public institutions in the first place?

Like with most scandals, there is also a positive aspect to it. The British may finally cease the moment to reform their sub-standard oversight architecture. Arguably, we have now crossed the tipping point. While the ISC’s reputation as an institution of pro-active, independent and efficient intelligence oversight was long damaged (consider the haphazard role it played throughout the Iraqi WMD investigation, see this book for a more systematic appreciation of the ISC’s work)

Three points, I believe, should be kept in mind with respect to the (hopefully pending) reform of intelligence oversight in the UK:

First, the ‘ring of secrecy’ arrangement, needs to seriously reconsidered – if not abandoned, altogether. Its underlying assumption that the ISC is in a very privileged position as concerns its access to information is highly exaggerated. The committee’s access to information proved to be poorest when information was most critical. Naturally, this has more worrisome consequences. With a view to the subsequent ISC reports, the British public may be led to believe that its representatives have things ‘under control’. Instead, (at least with respect to the ISC rendition report this was the case), it may depict a highly distorted account of crucial foreign policy activities.

Second, the BM case shows how the ISC members, by and large, prefer a consultant’s position to that of a democratic controller. Granted, the restricted ISC mandate ties the hands of individual committee members but they have pursued a very narrow interpretation of the mandate at a time when a bolder approach would have been necessary in the interest of a more balanced parliamentary-executive relationship. Granted, too, the very pursuit of ‘propriety’ dimensions is not yet part of their formal remit. So, yes, one may give the ISC credit for having pushed the envelope on this a little. Still, once they are in the business of investigating malfeasance allegations, they seem too readily satisfied with earning in-put legitimacy.

Third, despite the fact that political divides inside the ISC are less noticeable (compared to the intelligence oversight committees in the US Congress and the PKG in the Bundestag), we are still a long way from impartial oversight in Britain. This became clear throughout and after the renditions investigation. For example, one can point to various conflicting interests and revolving doors. (Consider, for example, the fact that the current ISC chairman was twice the addressee of letters from the All Party Parliamentary Group on Extraordinary Renditions – each time in very different capacities though, see the archive of http://www.extraordinaryrenditions.org; equally ’sub-optimal’ is the fact that the former foreign secretary M. Beckett has steadily refused re-opening the renditions investigations (during her brief spell as ISC chairperson) .