This Side of Silence. Tobias Kelly

      UNIVERSITY OF PENNSYLVANIA PRESS

      PHILADELPHIA

      Copyright © 2012 University of Pennsylvania Press

      All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

      Published by

      University of Pennsylvania Press

      Philadelphia, Pennsylvania 19104-4112

      www.upenn.edu/pennpress

      Printed in the United States of America on acid-free paper

      10 9 8 7 6 5 4 3 2 1

      Library of Congress Cataloging-in-Publication Data

      Kelly, Tobias.

      This side of silence : human rights, torture, and the recognition of cruelty / Tobias Kelly. — 1st ed.

      p. cm. — (Pennsylvania studies in human rights)

      Includes bibliographical references and index.

      ISBN 978-0-8122-4373-4 (hardcover : alk. paper)

      1. Torture—Moral and ethical aspects—Great Britain. 2. Political prisoners—Abuse of—Great Britain. 3. Political prisoners—Legal status, laws, etc.—Great Britain. 4. Suffering—Political aspects—Great Britain. 5. Human rights—Great Britain. I. Title. II. Series: Pennsylvania studies in human rights.

      HV8599.G8K45 2012

      364.6′7—dc23

      2011023289

      For Faye and Matilda

      The great maxim of all civilized legal systems, that the burden of proof must always rest with the accuser, sprang from the insight that only guilt can be irrefutably proved. Innocence, on the contrary, to the extent that it is more than “not guilty,” cannot be proved but must be accepted on oath, whereby the trouble is that this faith cannot be supported by the given word, which can be a lie.

      —Hannah Arendt, On Revolution

      If we had a keen vision and feeling of all ordinary human life, it would be like hearing the grass grow and the squirrel’s heart beat, and we should die of that roar which lies on the other side of silence.

      —George Eliot, Middlemarch

      Contents

       Introduction

       1 Talking about Torture after the Human Rights Revolution

       2 The Legal Recognition of Torture Survivors

       3 Clinical Evidence about Torture

       4 Predicting the Future Risk of Torture

       5 Prosecuting Torture

       6 The Shame of Torture

       Conclusion

       Notes

       Bibliography

       Index

       Acknowledgments

Introduction

      In late April 2002 Binyam Mohamed was turned over to the US authorities after being arrested by Pakistani police at Karachi Airport. Mohamed was born in Ethiopia but in the mid-1990s had claimed asylum in the United Kingdom. He had converted to Islam in 2001, and later the same year traveled to Afghanistan and then Pakistan. Following Mohamed’s detention in Pakistan, he was interviewed by Federal Bureau of Investigation (FBI) agents and flown to Morocco, where he was imprisoned for eighteen months. Mohamed was then sent to a detention center run by the Central Intelligence Agency (CIA) in Afghanistan, and finally, in September 2004, he was sent to Guantanamo Bay. The US military alleged that Mohamed had been trained in Kabul to make “dirty bombs” and was planning to carry out an attack on US soil. The charges against him were eventually dropped, and he was released and returned to the United Kingdom in early 2009.

      While Mohamed was in Guantanamo Bay, he made allegations that he had been tortured when he was in Pakistan, Morocco, and Afghanistan. A US court later ruled that Mohamed’s “trauma lasted for 2 long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time.”¹ Back in the United Kingdom, Mohamed’s lawyers filed a petition in the courts demanding that the Foreign Office turn over all the evidence they had about his abuse. In the summer of 2008, English judges ruled that any documents held by British authorities should be given to Mohamed’s lawyers but not made public, on the grounds that their full disclosure could harm the intelligence relationship between the United Kingdom and the United States. The judges also found that British agents had “facilitated” Mohamed’s interviews by the Pakistani and American security services.² Two years later, English Appeal Court judges ruled that if it “had been administered on behalf of the United Kingdom,” the treatment inflicted on Mohamed by US officials “would clearly have been in breach of the undertakings given by the United Kingdom.”³ They also ruled that all evidence about Mohamed’s ill-treatment must be released.⁴

      Alan Johnson, the British home secretary at the time, responded to the judicial rulings and newspaper headlines that followed by saying that allegations of British complicity in torture were a “gross and offensive misrepresentation of the truth” (Naughton and O’Neil 2010). The Metropolitan Police Service, however, announced that it was launching a criminal investigation into the involvement of the British security services in Mohamed’s ill-treatment. In addition, Mohamed’s lawyers launched a claim for civil damages, suing the Foreign Office, the Home Office, and the Attorney General, as well as MI6 and MI5, for their complicity in his unlawful detention and ill-treatment. In 2010, the newly elected Conservative-Liberal coalition government declared that once criminal and civil proceedings had come to an end, it would launch a judicial inquiry 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.”⁵ By the autumn of the same year, Kenneth Clarke, the new minister of justice, told parliament that an out-of-court settlement had been reached. He argued that if the case had continued, “Our reputation as a country that believes in human rights, justice, fairness and the rule of law … risks being tarnished.”⁶ Clarke added that no admission of liability had been made and that the details of the settlement were to remain confidential. The following day, the director of public prosecutions announced that the MI5 officer investigated for complicity with Mohamed’s ill-treatment in Pakistan and Morocco would not be prosecuted.

      Since 2001, images of tortured bodies and the claims and counterclaims they generate have shaped much international politics. Binyam Mohamed’s case was just one among many. Probably the most infamous incident involved the release of pictures of American troops mistreating Iraqi detainees in Abu Ghraib prison. After the release of these photographs, there were further revelations about ill-treatment by the US