The official announcement on Tuesday in the House of Commons, by Justice Secretary Kenneth Clarke, that the govermment has reached a financial settlement with a number of former Guantánamo prisoners brings to an end a court case that promised to be long, expensive and full of disturbing revelations about British complicity in torture and abuse.
How the financial settlement arose
Seven former prisoners first sued the British government and the security services last year, seeking damages for their role in unlawful acts and conspiracy, through their involvement in, or their failure to stop, their detention and ill-treatment in US custody (or US supervision in other countries), and, in some cases, their “extraordinary rendition” to secret prisons. These men were Moazzam Begg, Binyam Mohamed, Omar Deghayes, Bisher al-Rawi, Jamil El-Banna, Martin Mubanga and Richard Belmar.
When the government’s preferred route out of this tricky situation — seeking and securing judicial approval for MI5, MI6 and the police to be able to withhold evidence from defendants and their lawyers on the basis of national security — was overturned by the Court of Appeal in May this year, it was obvious that their only escape route would be to negotiate an out of court settlement with the seven men. In their ruling, the judges in the Court of Appeal — including Lord Neuberger, the Master of ther Rolls — said they were obliged to “take a stand” against secrecy that would undermine the “most fundamental principles of common law,” and Lord Neuberger pointed out that “a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.”
The government moved swiftly. On July 6, David Cameron announced that there would be a judicial inquiry into British complicity in torture, telling the House of Commons that he had asked Sir Peter Gibson, a former appeal court judge who monitors the activities of the intelligence agencies, to “look at whether Britain was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11.” Cameron noted that, although there was no evidence that any British officer was “directly engaged in torture,” there were “questions over the degree to which British officers were working with foreign security services who were treating detainees in ways they should not have done.”
Crucially, David Cameron also made it clear that the inquiry could not begin “until civil claims have been resolved through mediation or settled with compensation,” as the Guardian explained, and until Metropolitan Police investigations into the activities of MI5 and MI6 agents concluded. These concern Binyam Mohamed (returned to the UK in February 2009), who was subjected to two years of torture (with British knowledge) in Pakistan, Morocco and Afghanistan, before his transfer to Guantánamo in September 2004, and Shaker Aamer, married with a British wife and four British children, who is still held in Guantánamo, despite being cleared for release in 2007. Originally from Saudi Arabia, Shaker had traveled to Afghanistan in June 2001 with former prisoner Moazzam Begg and their families to establish a girls’ school and some well-digging projects, but was seized by bounty hunters after the US-led invasion of Afghanistan and subsequently sold to US forces.
The need for the government to seek an out of court settlement grew even more pressing just a week after the announcement of the inquiry, when ministers were unable to prevent the first release of documents as a result of the ongoing court case. Less than a thousand in number, out of 500,000 documents being reviewed by lawyers and intelligence personnel, these documents neverthless contained startling new discoveries: that foreign secretary Jack Straw had been content for British prisoners to be taken to Guantánamo in January 2002, when the prison opened, and was only concerned that British agents would have time to interrogate them in Afghanistan before the Americans rendered them to its lawless enclave in Cuba; and that Prime Minister Tony Blair had interfered to prevent the Foreign and Commonwealth Office from granting consular access to Martin Mubanga, a British citizen seized in Zambia, who, as a result, was also sent to Guantánamo.
In the wake of this release of documents, the government stepped up its planning for the judicial inquiry, actively engaging in negotiations with former prisoners and their lawyers, which, after four months of detailed discussions, led to the settlements announced on Monday.
Why the financial settlement is an acknowledgment of guilt
However, although the Prime Minister’s spokesman told reporters on Tuesday morning, “We are not admitting culpability,” and proceeded to follow the government line that “We were in a situation where we were facing years of litigation, the cost of which would have been tens of millions of pounds,” and that “We had to draw a line under the past and let [the security services] get on with the job that they have to do,” even a cursory glance at what has taken place over the last four months reveals that Downing Street — and Kenneth Clarke, who repeated the message in the House of Commons — are not being entirely honest.
When the story broke on Monday night, the only ex-prisoners mentioned were the seven men involved in the damages claim, but by Tuesday it was clear that settlements had been made with 16 men in total — all of the British citizens and residents returned between 2004 and 2009, and Shaker Aamer, despite the fact that he is still held in Guantánamo.
If, as the government claims, the aim of the settlements is to bring to an end the court case that was proving so costly and so dangerous to the security services (and former government ministers), then there would be no need to include all these other men, who are not actually engaged in litigation.
Two conclusions can be drawn from this, and neither reflects well on the government. The first is that the settlements are indeed an acknowledgement of guilt, and the second is that the government is trying to make sure that there are no loose ends — or loose cannons — around for when the inquiry begins its work. This suggests that the government is hoping to ensure that the inquiry will be able to guarantee that enough damaging material as possible is safely removed from public scrutiny, so that its real business — going through the motions, leading to the odd slapped wrist — will not be able to be challenged.
Personally, I doubt that such a plan will be successful, as so much information relating to British complicity in torture is already in the public domain, and any attempt at a whitewash will be met with fierce resistance. Moreover, although the ex-prisoners have accepted a settlement to drop their civil claim against the government, they have not, as Kenneth Clarke admitted in Parliament, “withdrawn their allegations,” and it remains possible, therefore, that one day those who facilitated or turned a blind eye to their torture and abuse might still face prosecution.
As it is, all the former prisoners have made it clear in the last few days that they intend to make their allegations, with evidence, directly to Gibson when the inquiry begins, and Moazzam Begg has explained that Cageprisoners will be submitting its findings from its report, “Fabricating Terrorism II,” which highlights the cases of 29 individuals who allege the complicity of MI5 and/or MI6 in their abuse, including one pre-9/11 case directly linked to Moazzam Begg.
Why the government has, to date, failed Shaker Aamer — and how the former prisoners made him central to their concerns
Just as significant as the government’s little-perceived acknowedgment of guilt is the unresolved question of what will happen to Shaker Aamer.
It is extraordinary enough to realize that he is being offered a settlement while he is still held in Guantánamo, but it is even more astonishing that, until the negotiations began, the government was unaware that all the former prisoners would tell ministers that they were unwilling to enter negotiations without confirmation that any deal would also include Shaker’s return to the UK.
The government apparently failed to understand that the bonds between Guantánamo prisoners run particularly deep, after their shared experiences, and that they all have great feelings of responsibility towards those left behind in Guantánamo — and especially towards Shaker, an intelligent, articulate and charismatic man, who, since his capture almost nine years ago, has fought tenaciously for the prisoners’ rights.
Ministers were duly taken aback when, one after another, the former prisoners explained that their intention had never been to seek financial compensation. They were, they said, motivated by a quest for justice, a desire to make sure that nothing that happened to them would be allowed to happen again, and an unassailable conviction that the entire process was useless while Shaker Aamer remained in Guantánamo.
Rather disturbingly, ministers also, apparently, failed to realize how little civil servants had done for the last few years to secure Shaker Aamer’s return from Guantánamo, and in one meeting there was a shocked silence from minsters, lawyers and the former prisoners when they admitted that they had not made a welfare visit to Shaker for five years.
They also, it seems, failed to realize how absurd it was to offer Shaker a settlement while he is still held in Guantánamo, and it also transpired that ministers had not been fully briefed about the fact that no inquiry can possibly proceed without him. This is not only because Shaker is the subject of one of the Metropolitan Police investigations, but also because the reason that investigation arose in the first place is because a court accepted, last December, his allegations that British agents had been present in a cell in the US prison at Kandahar in December 2001 when he was subjected to horrible abuse.
Although the British government, under Gordon Brown, asked for Shaker to be returned to the UK with four other British residents in August 2007, there has been no progress since that time, even though the other four men were safely returned in 2007 and 2009.
What Shaker Aamer knows
When prompted, the US goverment has claimed that it still has “security concerns” about Shaker, although these could obviously be dealt with by the British government if the political will existed to secure his return. Very possibly, this has been an excuse — mutually beneficial to both the US and UK governments — to put off having to deal with both the embarrassment, and with detailed revelations about the treatment of prisoners, which might be more damaging to both governments, when Shaker is eventually released.
The reason for this is that, in his fierce advocacy of rights for the prisoners held in the “War on Terror,” Shaker may know more than any other prisoner about the dark workings of Guantánamo and other prisons in Afghanistan. Soon after his capture he initiated a hunger strike to demand that prisoners be treated humanely, and in Guantánamo he not only supported and advised countless fellow prisoners, and liaised endlessly with the authorities, but also played a pivotal role in briefly bringing to an end a prison-wide hunger strike in the summer of 2005. On that occasion, he and five other influential prisoners were allowed to form a short-lived Prisoners’ Council, in an attempt to persuade the authorities to run the prison according to the Geneva Conventions, but when the authorities suddenly changed their minds and the council was disbanded, Shaker was thrown into solitary confinement, where he stayed for at least two years, on a hunger strike.
Moreover, it was during this period that three prisoners died, on June 9, 2006, and Shaker later told his lawyers that, on that same night, he had been tortured to within an inch of his life. His account added great weight to an article published in January this year, which, drawing on eye-witness accounts by soldiers who were stationed in Guantánamo on that particular night, demolished the authorities’ claim that the three men who died committed suicide, and indicated instead that they had been killed — either deliberately, or as part of a torture session in a secret facility outside Guantánamo that went too far.
Why Shaker Aamer must return to the UK now
According to the Guardian, Shaker “is expected to be allowed to return to the UK soon,” and I can only hope that this is true. As Moazzam Begg explained on Tuesday, “Shaker Aamer must now become a priority for this current government. The compensation paid to the former Guantánamo detainees is a welcome departure from the policies of the previous administration but in order to truly resolve the errors that have been made, Shaker Aamer must be returned back home to his family. We will do everything in our power to help this government achieve their goal of helping his return.”
In the last two days, the pressure for Shaker’s return has increased markedly. Although the Director of Public Prosecutions, Keir Starmer QC, said on Wednesday that the Crown Prosecution Service had advised the Metropolitan Police that, in their ongoing investigation into Binyam Mohamed’s case, there was insufficient evidence to prosecute the MI5 officer at the heart of the investgation (known as Witness B), “for any criminal offence arising from the interview of Binyam Mohamed in Pakistan on 17 May 2002,” Starmer added, “We are unable to release further information at this stage because the wider investigation into other potential criminal conduct arising from allegations made by Mr. Mohamed in interviews with the police is still ongoing.” Significantly, Starmer did not mention the ongoing investigation into the conduct of security service officials in Shaker Aamer’s case, but it is apparent that this particular investigation cannot conclude without Shaker Aamer being present to answer questions.
As a result of this investigation, and also, it should be noted, as a direct consequence of the settlement discussions, the British foreign secretary, William Hague, raised the question of Shaker Aamer’s return to the UK with Hillary Clinton, the US secretary of state, on Wednesday, marking the most high-profile mention of Shaker Aamer by a British government official since August 2007, when Gordon Brown asked for the return of the five remaining British residents.
This was a welcome development, and a clear reflection on the successful pressure exerted on the British government by the former prisoners, but Shaker’s return is not yet a done deal, and in the meantime anyone interested in securing Shaker Aamer’s return should besiege all available parties — David Cameron, William Hague, their local MPs and the US goverment — with demands for his return, pointing out that the Metropolitan Police’s investigation cannot conclude without him, and nor, indeed, can the goverment’s judicial inquiry begin.
Note: As part of Amnesty International’s new campaign for Shaker Aamer, readers can send a postcard to Daniel Fried, Obama’s Special Envoy on Guantánamo, who will hopefully receive many thousands of postcards demanding Shaker’s return (although, to be honest, I would cut the recommended text about the possibility of charging him promptly and giving him a fair trial), and can also write to MPs in the UK, who can be contacted easily and directly via the campaign page here. Also see this page for information about future screenings of “Outside the Law: Stories from Guantánamo,” the documentary film, co-directed by Polly Nash and myself, which features the story of Shaker Aamer — on November 22 in Oxford, on December 10 in Roehampton, on December 11 in Battersea, and on December 15 in Sheffield — and if you’re in London, or able to pay a visit, please also note that the screening on Saturday December 11, at the Battersea Arts Centre, is part of an event entitled, “A Day for Shaker Aamer,” organized by the Save Shaker Aamer Campaign in his home borough of Wandsworth. The day begins at 12 noon, with a demonstration at Ponton Road, Nine Elms, London SW8, the site of the new US embassy. At 12.30 those gathered will march to Battersea Arts Centre for a public meeting, beginning at 2 pm, with speakers including Ken Livingstone, Moazzam Begg, Victoria Brittain, Jeremy Corbyn, Lindsey German, Kate Hudson, Gareth Peirce and Yvonne Ridley, and the film will be shown at 4.30 pm, followed by a Q&A with myself and Omar Deghayes.