Secrets and lies

My entire professional life – over 33 years – has been devoted to death penalty and torture cases, in venues that sometimes seem bereft of true justice. I spent the first 20 years in the deep south – in Alabama, Mississippi and beyond. Since 2002, I have travelled to Guantánamo Bay 35 times, doing battle in a system dubbed a ‘kangaroo court’ by Lord Steyn. I am headed there once again as I write this. All this time I have imagined how much easier life was for Horace Rumpole, back in Snaresbrook Crown Court.

It therefore came as a salutary surprise to watch recent proceedings in courtroom 72 at the Royal Courts of Justice, where the UK government applied, for the first time in a renditions case, for a secret hearing (euphemistically referred to as a Closed Material Proceeding or CMP) under the Justice and Security Act 2013. The British judge has just granted the government’s application for this CMP.

This is a case where – for more than a decade – ministers have been misled by MI6, and have in turn misled parliament and the people. It is a case of great significance. If such a cover-up were attempted in Guntown (a real place in north-eastern Mississippi) it would be laughed out of court. The US military would have no more success on the Guantánamo Naval Base.

Open justice has been a casualty in the post-9/11 world. Rights are being eroded at the margins, and those who care about British justice need to look around themselves.

Misleading parliament

I attended courtroom 72 as a potential witness in a case involving two Pakistani men – Amanatullah Ali and Yunus Rahmatullah. They were originally detained by the British in Iraq, then turned over to the US, tortured, and rendered to Guantánamo’s evil twin, Bagram Air Force Base in Afghanistan. There they remained for the next decade, without charge, trial or access to a lawyer.

Early in the ‘war on terror’ there were rumours that Britain was directly involved in renditions. Various MPs, led by the admirable Andrew Tyrie, asked questions, and the UK government consistently denied any wrongdoing. Indeed, as the foreign secretary Jack Straw told MPs with an patronising edge in 2005: ‘Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying, that behind this there is some kind of secret state which is in league with some dark forces in the United States… there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop.’

This turned out to be what Winston Churchill called a ‘terminological inexactitude’. In 2008, I met with Amanatullah’s brother in Islamabad. He was at a loss to understand why his sibling had been singled out for abuse, but he was clear that the UK precipitated the initial arrest. In February 2009, after more bold official assertions that critics were guilty of ‘baseless speculation’, John Hutton came to parliament to confess that the UK had indeed detained two people, who had then been transferred by the US ‘from Iraq to Afghanistan in 2004 and they remain in custody there today’.

One might think that Britain would apologise profusely and create rules to ensure nothing like this could happen again. On the contrary, the government actively resisted our efforts to reunite them with their legal rights, refusing even to name them. It was only after a lengthy and costly investigation that we were able to identify Yunus and bring a habeas claim on his behalf. The UK Supreme Court ruled that his detention was illegal, but Yunus had to wait nearly two more years before he was released.

Unfortunately, the cover-up had only just begun. In Hutton’s 2009 statement, for the first time, the government asserted that ‘[t]he individuals transferred to Afghanistan are members of Lashkar-e-Taiba (LeT), a proscribed organisation with links to al-Qaeda’. This was Hutton’s way of saying, in effect, ‘OK, maybe we shouldn’t have done it, but these guys are really, really bad dudes’.

Unfortunately, this was also false. For example, Amanatullah was an innocent rice trader who had crossed over from Iran to Iraq to visit Muslim holy shrines that were, for the first time, available after the fall of Saddam. We made this clear to the government and yet the same LeT slur was repeated in one form or another by a number of government ministers from different parties.

Mistaken identity

We can prove beyond any sensible doubt that the defamation was false. We can even show how the security agencies came to make this colossal mistake. As recently reported, Amanatullah Ali had followed a well-trodden path in Pakistan. When his passport was confiscated for having an allegedly invalid Saudi visa in it, he paid for another so he could travel to Iran to trade, to support his family. Unfortunately for him, the purveyor of his new passport made it out in the name Ahmad Dilshad – almost as common as John Smith in Pakistan, but coincidentally the name of the head of the LeT military wing.

One can imagine the secret thrill that must have run through the MI6 team when they received intelligence that ‘Ahmad Dilshad’ had crossed into Iraq – this was their chance to show big brother America that the Brits could run a tough operation on their own. So they stormed the guesthouse where Amanatullah was staying. Yunus happened to be staying there too, and was swept up along with ‘Ahmad Dilshad’.

A harsh critic might expect our premier intelligence agency to have figured this out before sending soldiers – who knew nothing of the mistake – to bust down doors. None of the details in the Dilshad passport matched the real LeT leader, and it would take a terrorist of magnificent folly to travel on a passport intentionally falsified to bear his own name. But perhaps, thus far, MI6 could have been forgiven if they had just put their hands up when the error became obvious.

Regardless of initial blame, once Amanatullah insisted that he was not the person they were looking for, any competent person could readily have worked out that he was telling the truth. One call and the Pakistanis would have confirmed his identity. Instead, the cover-up started at once – and 13 years later it continues. When the British turned Amanatullah over to the US, they misidentified him as Dilshad. How did we work this out? Because the American Civil Liberties Union sued the US to get a copy of the prisoner list in Bagram and there – listed as detainee 1432 – was Ahmad Dilshad, one space above Yunus Rahmatullah.

Even though MI6 stuck to its guns, it did not take long for others to work out that they had the wrong man. The International Committee of the Red Cross (ICRC) began sending official mail in the name Amanatullah; the Pakistani authorities confirmed his real identity; and the Americans stopped calling him Dilshad in their own proceedings. Thus, to paraphrase Straw, only a paranoid conspiracy theorist could think that Amanatullah had properly been identified as Ahmad Dilshad, yet a series of ministers continue to peddle the MI6 line. Bill Rammel MP even insisted that he did ‘not accept [my] assertion that parliament and the public have been misled by ministers’. Yet it is patently clear that they had. If Amanatullah is not LeT and never was, then the endless statements to the contrary have been false.

It is not necessary to go back to the resignation of president Richard Nixon to understand that the cover-up is often more significant than the original crime. In this case, the offence against Amanatullah and Yunus was grotesque, far worse than a Watergate burglary: they suffered torture, rendition and a decade of detention without trial. On the other hand, it would be difficult to identify another situation where British ministers have been forced to apologise twice for misleading parliament and yet where they continue to do so 13 years on.

Secret courts

Which brings us back to the rather unimposing venue of courtroom 72. The government sought to enlist the judiciary in its deceit by asking for portions of this case to be heard in secret. Here, I must preface further comment by saying that the judge struck me as amiable and polite, lacking much of the pomposity of the British judiciary. My sources tell me that he rigidly applies the law, without fear or favour. The question, of course, is whether the law he is required to apply is an ass.

The first procedure that struck me was the idea that the case could proceed without Amanatullah being represented or even present. I am not licensed in the UK but – as the judge noted – I did my best, writing a witness statement asking that the hearing should be delayed to a day when Amanatullah’s side of the story could be made known. This was one incident, and there is one explanation. Yunus would never have ended up in Bagram without the Dilshad mistake.

At the hearing, the judge said that the single most powerful argument in favour of a closed hearing was the ‘intelligence’ pointing to the men being members of LeT. Strangely, in his judgment, he determined that the very fact that we claim to know how MI6 came to make a colossal mistake is a reason to allow them a secret hearing: ‘It is apparent from this example and other observations made in Mr Stafford Smith’s witness statement that Mr Ali maintains that his arrest was based on false intelligence and involved a mistake as to his identity. This, in my view, makes it all the more relevant and necessary for the court to consider sensitive material which bears directly on this issue in order properly to try the case.’

So this is where Amanatullah stands: he is an indigent Pakistani trader, who was seized by the British, who never was a member of LeT, who has offered to prove this in open court beyond any reasonable doubt, who was rendered and tortured, and who has been smeared for 13 years… and the British government is going to be allowed to smear him some more in secret, without ever telling him why they made such a dreadful error – let alone apologising. The authorities could not get away with that in Mississippi and they could not do it in Guantanámo Bay.

It is hard to see what the justification would be for keeping false intelligence secret under any circumstances, but when this has been used to mislead ministers, who misled parliament, who misled the public for 13 years, the argument becomes untenable. The public interest in disclosure becomes overwhelming.

In this respect Amanatullah’s is, one hopes, a unique case. But the second problem is systemic. British courts seem to have been coming to a comfortable accommodation with the idea of secret hearings. This is the true danger of the post-9/11, post-truth world: where the government wants secrecy, how can we achieve justice?

I approached Yunus’s ‘special advocate’ during a lull in the hearing and asked whether it was appropriate for me to fill him in on some of the facts. He politely declined. He is not even allowed to speak to his own client. Thus he was about to go into a secret hearing with the judge, the government and (who knows?) perhaps a few spooks, yet he could not be provided with key evidence to strengthen his client’s case.

In granting the government’s request for a CMP, the judge accepted that ‘a closed material procedure involves a serious derogation from the fundamental principles of open justice and natural justice’. It does indeed. It makes Guantanámo Bay look positively principled.

When I go to Guantanámo I can see the secret evidence, but my client cannot – even though he is the one on trial. In this respect, Britain and the US are on a par. In other respects Guantanámo is a marked improvement on the British model. I can speak to my client and I am trusted not to reveal that which is deemed secret. I can ask him anything I want. He can tell me anything he likes and I can submit it to independent censors who – for the most part – will shuffle it into the daylight.

To be sure, there is too much secrecy in the US system. I have seen thousands of classified documents in the past 13 years that should be revealed to the public. The only ‘threat’ to ‘national security’ would be incredulity on behalf of the reader that the intelligence services could be so naive. But for all the criticism I have levelled over the years, I would choose the US system over what I saw in courtroom 72.

That is a sorry indictment, but human rights exist to present truth to power, and currently the British government is trying to cover up the MI6 cover-up in a secret court. If we do not recognise the problem, we are unlikely to find a solution.