23/11/2016 07:38 GMT | Updated 24/11/2017 05:12 GMT

Trump And Torture


Sir Kim Darroch, the British Ambassador to the US, is reported as having advised the Prime Minister that the new Trump Administration is 'open to outside influences' and that we are 'uniquely placed' to take advantage of this. I hope that he is right. This is not because, as Mrs May has intimated, we can convince the President-Elect of the benefits of free-trade but because we might, just might, be able to use our influence to convince him that his threatened return to the systemic use of torture and inhumane treatment as a tool of counter-terrorism would be a disaster for all of us.

The list of terrifying proclamations from the campaign podium by Candidate Trump is long but none was more chilling than his repeated statements that he would bring back torture as official US policy. In February 2016, during the course of a Republican televised debate, he told his audience that he would "bring back a hell of a lot worse than waterboarding". Lest there be any doubt about his position, in June 2016, now the official nominee for President, he told a cheering Ohio crowd his views on waterboarding were "I like it a lot. I don't think it is tough enough."

Thanks to the dogged work of human rights defenders and the investigations of, amongst others, the US Foreign Intelligence Committee, we do not have to guess what 'a hell of lot worse' than waterboarding looks like. In the years following 9/11 US official policy under President Bush entered its darkest days. The US operated a network of secret prisons and a rendition system whereby individuals were kidnapped, transferred across the globe and subjected to levels of torture and mistreatment that would have shamed a medieval despot. The Senate Intelligence Committee battled for years with the CIA simply to release a redacted version of the executive summary of their report on the use of torture under the Bush administration. It should be required reading not simply for the pending President but all citizens. It records examples of the techniques employed by US agents, including threatening detainees with power drills, placing individuals into coffin shaped boxes for prolonged periods of up to 11 days, systemic physical beatings leading to life threatening injuries, anal violations and mock executions. Lest, anyone be fooled into thinking that waterboarding is not a form of torture, the report details how several detainees almost died after being subjected to it. All of this was conducted under the receipt of legal advice, that any treatment which did not directly cause "major organ failure" would not amount to torture.

Can we afford to treat Mr Trump's threat to return to torture as simply campaign rhetoric that will inevitably be jettisoned on the assumption of power? The answer as provided by recent history can only be an emphatic no. If it could happen under Bush with impunity then there is at the very least a real risk that it could occur under Trump. The failure to prosecute those responsible for these criminal acts has meant that a debate about torture can somehow still have legitimacy in US political discourse and that inevitably gives rise to an risk of regression. Equally, it must be clear that the response from our government cannot be left to quiet diplomacy but the Prime Minister and Foreign Secretary must publicly state now that the shared values that tie our countries so closely together cannot permit the re-introduction of an era of secret prisons, extra-judicial detention and torture chambers. There should be no room for obfuscation or prevarication, no hiding behind debates about what amounts to torture and what does not. What is being mooted is so repugnant to our concept of human decency that nothing less that the clearest statements from our leaders could possibly suffice. This must be established now, a 'wait and see' approach that tests the administration response to the next terrorist outrage will be bereft of efficacy.

There are at least three reasons why the Prime Minister must be emphatic in her approach. First, torture is morally repugnant period. There is simply no room for civilised debate as to whether placing a person in a coffin shaped box for 11 days can be justified. It not only destroys the victim but demeans the torturer and the society he (and it is almost always a 'he') represents. As we search for 'British values' to forge our brand in the world, we can be proud that its practice was officially outlawed here long before the Continent. Secondly, the practice of torture is counter-productive. By this I do not simply mean that it almost invariably fails to extract the truth from the subject (although the evidence from the CIA programme is that it does not provide reliable intelligence), nor that it provides a greenlight for other regimes to resort to mistreatment of detainees but most importantly of all it produces a widespread hostility towards those who espouse its practice. Crucially, this hostility is not confined to members of Western European democracies but is instilled in countless thousands of people in the developing world who are rightly appalled at the vicious treatment of mainly young Muslim men by the world's most powerful nation. At a time in which many fear the mere election of Donald Trump will prove an effective recruiting sergeant for extremists, a return to torture will send precisely the wrong message to the very people we want to persuade of the benefits of respect for human rights. The consequences of the wrong decision will be felt by all of us, not simply the US electorate. Thirdly, we need to make a clear stand on torture for the UK's own sake. That is because our own record of collusion with the Bush torture system is far from perfect. Evidence in the public domain strongly suggests that British intelligence services cooperated with the CIA in some of the darkest days of the torture regime. Whilst there is little evidence that UK officials themselves conducted extreme forms of mistreatment it is clear that they repeatedly crossed the line in assisting the US, not least on occasion facilitating the rendition of individuals to torture chambers and interrogating suspects in circumstances in which they knew they were being tortured by others, be it in the infamous 'Dark Prison' of Bagram, Guanatamo Bay or other extra-judicial detention sites. The Prime Minister must make a statement that leaves our own intelligence services in no doubt that whatever President Trump decides, this country will never again be complicit in torture.

The great paradox of the United States is that a country responsible for so much of the progression of international human rights (think of Eleanor Roosovelt) is also capable of producing an election for highest office in which the successful candidate's platform boasted of the re-introduction of torture. We owe it as friends and allies to warn the United States that this is a path that they must never follow again.

Richard Hermer QC practices at Matrix Chambers London. He has represented many individual victims of the so-called 'War on Terror' including detainees at Guanatamo Bay and also Abel-Hakim Belhadj who is suing MI6 for complicity in his rendition.