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Why isn't your conscience torturing you, Mr Blunkett?

Simon Jenkins

Any self-respecting judge would demand that this garbage never darken the door of a courtroom again

So the Home Secretary, David Blunkett, is having trouble with his friends, the tabloids. Well, well. For years he has been treating them like a skinhead playing with rottweilers. He has crammed prisons, abused judges, taunted left-wingers and pandered to the mob. Suddenly the snarling beasts turn on their handler and savage him. Before you can say “liberal” a large portion of the Home Secretary’s anatomy is raw flesh.

Where, he might wonder, did the tabloids gather their information about his love life? How rigorous were their sources? From whom was their evidence extracted, and with what bribes and duress? How do these journalists now rate their pledges of respect for human rights? The answers are probably as robust as those that Mr Blunkett deploys against the ten detainees whose case came before the Court of Appeal last week, whom he brands “terrorists”. His victims claimed the evidence against them was gleaned from prisoners who had been tortured. Unlike that in Mr Blunkett’s case, this evidence really matters. These men have been in prison for two years without trial or normal civil rights.

In prison they will stay. Three appeal court judges inexplicably found in favour of Mr Blunkett, albeit one of them with reservations. Lord Justice Laws declared himself “quite unable to see” why the Home Secretary should not rely on evidence “gained by torture”, if the torturers belonged to states “over which he has no power of direction”. Torture is apparently fine so long as the torturers are not British. I sense that this is what might be called an old-fashioned judge.

He then went further and added that he could not even see why Mr Blunkett had a “duty of solemn inquiry as to the interrogation methods used”. If he wants to declare an accused a terrorist, any evidence would presumably do, even if it were scraped off the walls of Abu Ghraib jail.

These detainees are not accused of any act or planned act of terrorism, only of membership of al-Qaeda. They have the option of leaving England and returning to their home country, but they claim that this would be at risk of their lives. They want to stay free in Britain. Since this is in part an immigration case, the appeal court may have considered the burden of proof on the Home Office less than onerous. But that is quite different from liberating the Home Secretary to sweep the torture chambers of the world for accusations against his victims. I am sure Scarpia was a much-misunderstood man, but I never thought a British court would take his side against Tosca.

The evidence against the detainees, so they claim, was based on material passed to British intelligence by interrogators in Guantanamo Bay and Bagram base in Afghanistan. Such intelligence is utterly tainted. Horrifying stories of torture are now emerging from these prisons, from jailers, soldiers and prisoners alike, and from prisons in coalition-occupied Iraq. Charges based on such material are vulnerable to a prima facie defence of duress. Three recent British detainees in Guantanamo confessed under extreme pressure to having “met Osama bin Laden”. They had not done so, and British intelligence validated their previous alibis which was presumably why there were released.

Any self-respecting judge would take one look at this tower of garbage and demand that it never darken the door of a British courtroom again. Instead, Lord Justice Laws appears to give the Home Secretary licence to do what the Pentagon has been doing for years. He can sub-contract the gathering of intelligence by illicit methods to private agencies and less-fastidious states abroad. The removal of any “duty of inquiry” into how evidence has been gathered is a green light to British prosecutors to trawl that murkiest of oceans, for “global terrorist” accusations.

If government lawyers run into difficulty they can turn to “our friends” in Libya or Uzbekistan or Afghanistan to help out, with a name howled from the “softening-up room” or the electrode-table. Last week’s minority judge, Lord Justice Neuberger, stated simply that the Home Secretary is free to “adopt the fruits of torture”, in effect conniving at its use. This must be against every international treaty signed by Britain on the subject and renders absurd Mr Blunkett’s claim last week that “I have worked hard to eradicate torture”. Where exactly?

Mr Blunkett asserted last week that all ten detainees were “international terrorists”. He must think the same of the remaining three Britons in Guantanamo. They are still being denied access to their own lawyers prior to a kangaroo court trial scheduled for next week, though one is now under psychiatric care after two years of solitary confinement.

I continue amazed at the British Government’s careless disregard of these Britons. I cannot believe that members of Tony Blair’s Cabinet are any less outraged than are most decent Americans at what is being done. Guantanamo is a flagrant advertisement for the West’s contempt for its concept of freedom when applied to Muslims (other than American ones). Yet apart from murmurs of private discomfort, Mr Blair’s much-vaunted “leverage” over George Bush is absent. Can we imagine Margaret Thatcher for one minute leaving British citizens in such outrageous conditions?

Yet Mr Blunkett’s reaction to last week’s judgment in effect confirms the Guantanamo practices. Excused of any obligation to eliminate torture evidence from his jurisdiction, he declares: “I must balance legal theory with the practical job of protecting people.”

“Legal theory” is the sort of phrase Mr Blunkett uses against any who oppose his authoritarianism. I am surprised he did not call it “bleeding-heart legal theory”. That a Labour Home Secretary should place such theory in opposition to the security of the public is self-serving. Legal theory is precisely the framework in which people are protected in a free society. It cannot be the antithesis of such protection.

That Mr Blunkett thinks it so demonstrates how far Mr Blair’s Government has drifted down the road to autocracy. It is not so much illiberal as anarchic. The relevant statute is the 2001 Anti-Terrorism, Crime and Security Act, introduced in the backwash of 9/11, repressive and said to be temporary. The surest sign of a government passing a law which it knows to be wrong is when it says it is temporary.

There is no question that the threat of violent attack in the West is real, even though it may be hyped, week after week, to serve the interests of politicians. But security must be vigilant because nasty people are still abroad, despite two bloody wars against those thought to support them. The threat is peculiarly dangerous, since it comes from people ready to die in the process. This may require pre-emptive measures, which so far in Britain appear to be working. For that Mr Blunkett is entitled to some credit.

So why shoot himself in the foot? Any British court should abhor the same methods of interrogation that were ghoulishly attributed to Saddam Hussein and the Taleban to justify war against their countries. Britain is already guilty by association for the shocking acts perpetrated at Abu Ghraib. British commanders must have suspected what was going on, since similar practices were being used in the British-ruled south. The West’s whole case before the Muslim world is based on its superior respect for human rights. Torture should be as unthinkable in a war against individuals as nuclear weapons now are in a war against nations.

In The Times on Monday a former immigration scrutineer, Sir Brian Barder, attacked the appeal court decision. Surely, he said, the court should have issued “a ringing condemnation of reliance on evidence obtained by torture, wherever and by whomever practised, as a basis for imprisoning people indefinitely and without trial”.

It is scarcely believable that such words need writing in Britain in the 21st century. They do.