Detainee Inquiry - obstacles to finding out what happened

Behind the careful legal language of the Detainee Inquiry report, a picture emerges of inadequate supervision and guidance, generally decent intentions and conduct, and the reluctance for a long time of the intelligence agencies and government to face up to the implications of Britain’s closest ally mistreating and torturing people. The agencies were initially slow to adjust to the enormous changes after 9/11. As Kenneth Clarke told MPs, there is no evidence of UK officers being directly responsible in the mistreatment of detainees, though there are serious questions about ‘inappropriate involvement’ in some rendition cases. I was a member of the inquiry until the end of 2011 along with Sir Peter Gibson and Dame Janet Paraskeva. I resigned when offered my current post of Director of the Institute for Government, not least because at the same time it became clear that the inquiry would have to be wound up—as it was a few weeks later- because of  likely fresh police investigations. The inquiry team was asked to highlight themes and questions based on a thorough analysis of over 20,000 documents. Today’s report demolishes claims by civil liberties’ groups that the inquiry was a whitewash.  Indeed, for some in the intelligence world the report is the case for the prosecution since the agencies have never had a chance to present their views and be questioned. In the past, there have been privy counsellor inquiries conducted wholly in private—for instance Franks in 1982 into the intelligence background to the Falklands conflict and Butler in 2004 on intelligence ahead of the Iraq war. The Gibson inquiry, while judge-led, was intended to be in public as much as possible, though also a privy counsellor inquiry rather than a full statutory one giving formal rights to ‘core participants’ such as the detainees themselves. From the start, that was an issue of contention the detainees and human rights groups. They not only wanted the inquiry to have greater powers over disclosure—a still unresolved issue for Chilcot over the Blair/Bush correspondence in 2002-03 — but, also more fundamentally, that it should be a formal torture inquiry under the European Convention on Human Rights. This was explicitly never the Government’s intention and it would have been hard, if not impossible, to hold such an inquiry since key witnesses about allegations of torture would have come from the USA and other countries. That is leaving aside questions about protecting the anonymity of UK intelligence officers. It was regrettable that the detainees and rights groups boycotted the inquiry since their voices should be heard. The other big problem was that the inquiry could not be launched until any criminal proceedings had been completed. That was not only a stipulation of the Prime Minister but also necessary in practical terms since no witness will give evidence or be questioned while a police inquiry is continuing. The original hope had been this obstacle would be cleared around the end of 2010 but frustration increased during 2011 with no knowledge of when the original police investigations would be completed. Then came the allegations about British complicity in the rendition of two Libyan nationals which were deemed so serious as to require an immediate police investigation rather than waiting for the end of the inquiry. Nearly two years on, the police have not yet finished. Contrary to claims made in the House of Commons, that uncertainty made it impossible to keep the Gibson inquiry in limbo with no launch date, let alone a finishing date, in sight. That also rules out setting up another judge-led inquiry, either statutory or privy counsellor, at present. Intelligence and Security Committee must prove itself To try and resolve some of the questions now, the Government has rightly decided to hand the issue to the Intelligence and Security Committee (ISC) of MPs and peers (not a select committee). The ISC has been criticized for lack of robustness, and past failures, especially on rendition, where the agencies did not disclose key information.  But it now has greater powers and must prove itself. As our Spring public event on inquiries showed, there is no simple answer about the correct form of review to examine past policy errors. A variety of formats have worked, depending on how much information has been, or can be, made public. Lord Bichard was able to conduct an open, and widely supported, inquiry into the Soham murders, since the trial was over. But it is much harder where secret intelligence is involved. The sad feature of the Gibson saga is that, as the interim report shows, the inquiry both did a lot, and could have done much more, to establish what really happened. There are unquestionably worrying aspects but the story is more complicated, and more morally confused, than it has often appeared so far.