Detainee Inquiry will be a whitewash unless Government reconsiders today’s setup

July 6, 2011

The (Gibson) Detainee Inquiry published its terms of reference and protocol today. These fail notably to provide for a full and open evaluation of the way in which Britain was complicit in torture and rendition.

Reprieve — together with other NGOs — made a number of suggestions on how the inquirycould work, before these protocols were made public, but these were largelyignored. Instead, the government has consistently maintained that this inquiry need not comply with UK and international legal requirements for the effective investigation of serious human rights abuse. According to today’s announcement, the Inquiry will suffer from several key shortcomings:

First, the definition of evidence that will remain classified forever ishopelessly overbroad. Set out in Annex A, this effectively includes anythingthat would in any way breach an “understanding” between the UK and itsallies – in other words, anything the Americans would find embarrassing willnot be made public. If – when — a British agent watched Americans abusinga prisoner in a secret site (such as Bagram), the Inquiry will determinethat the agreement was that they were only present on the “understanding”that nothing should be made public. Given that the essence of Britishcomplicity involves working with the US on torture and rendition, theexception to publicity swallows the rule.

Second, there is no meaningful, independent (preferably judicial) review ofwhat should be kept secret. The Inquiry may only refer its own complaints(based on a definition that would justify classifying anything) to the verybody that has previously insisted on secrecy. Unlike other inquiries wherevictims have made serious allegations of torture, the victims will not havemeaningful legal representation. Their advisers will be denied access to anydocuments or hearings deemed secret by the inquiry.

Third, the Inquiry is left toothless due to a lack of powers to compel theattendance of witnesses or the provision of evidence or information from anyparty or organisation. Notably, the inquiry has refused to consider evidenceagainst UK based corporations with alleged links to the US renditionprogram.

There are a number of other issues that are not resolved, and have not beenaddressed by the protocol. In summary, the vast majority of what is secretwill remain secret and the public will receive no assurance that Britain haslearned from its mistake.

Reprieve’s director Clive Stafford Smith said:  “Sadly this is a whitewashwhere a lot of legal language hides the fact that virtually nothing will bemade public that is not already in the public domain. The government has apattern of revisiting contentious issues – of ‘listening’ – and we can onlyhope that it does not give up on the habit now.”

“National security continues to be conflated with political embarrassmentin this process. This is meant to be an inquiry into British complicity intotorture and rendition, almost all of which was complicity with theAmericans. Yet these terms give America a veto on much of what should bepublic.”

Notes to editors

1. For further information please contact Donald Campbell in Reprieve’spress office on +44 (0) 7791 755 415 / donaldreprieve@gmail.com

2. The Detainee Inquiry’s Terms of Reference and Protocol can be found ontheir [2]website: http://www.detaineeinquiry.org.uk/2011/07/news-release-terms-of-reference-and-protocol-published

Reprieve, a legal action charity, uses the law to enforce the human rightsof prisoners, from death row to Guantánamo Bay. Reprieve investigates,litigates and educates, working on the frontline, to provide legal supportto prisoners unable to pay for it themselves. Reprieve promotes the rule oflaw around the world, securing each person’s right to a fair trial andsaving lives.

Clive Stafford Smith is the founder of Reprieve and has spent 25 yearsworking on behalf of people facing the death penalty in the USA.

Reprieve’s current casework involves representing 33 prisoners in the USprison at Guantánamo Bay, working on behalf of prisoners facing the deathpenalty, and conducting ongoing investigations into the rendition and thesecret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’