Skeletons in the closet?

By Ernest Bey

There is little doubt that when history comes to consider the first decade of the 21st century, it will not be forgotten that some Western governments were complicit in the use of torture techniques more at home in the 17th.

Nor will it be forgotten that in the course of fighting the wars that followed the shocking attacks of September 11, 2001, liberal democracies colluded in the illegal imprisonment of thousands of people, many of them entirely innocent.

But what might be forgotten, according to veteran human rights lawyer Clive Stafford Smith, is the expansion of government secrecy powers that helped these abuses occur.

This, he argues, is a far greater threat to human rights than any single abuse, because it allows governments to systematically conceal information from the courts, undermining an individual's right to legal protection.

"This is the really insidious aspect," Stafford Smith says. "Governments are gradually using privacy rules, data protection act rules and freedom of information law to deny access to materials that show them committing crimes."

Political embarrassment

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The classic example of this mechanism in action came in the aftermath of one of the most shameful chapters in recent US history, the Abu Ghraib prisoner abuse scandal in Iraq.

The US military report into Abu Ghraib found that "numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees".


The report was classified but leaked to the press.

It contained none of the usual information - troop movements or information from intelligence sources - ordinarily found in secret documents. Instead, it appeared to have been classified for another reason; because it contained potentially embarrassing information about the treatment of Iraqi prisoners.

Stafford Smith says such misuse of power has set a precedent that could leave a poisonous legacy long after more obvious abuses, such as torture and illegal imprisonment, have ended.

"Human rights are basically there to protect the weak against the strong, to protect the individual against government, and if government can say everything should be secret then what protection is left?" he asks.

"The individual suddenly loses the protection of public opinion, loses the protection of much of the rule of law."


Shifting focus

It is a debate that is becoming ever more prominent as campaigners shift their focus from opposing ongoing abuses to demanding accountability for those responsible for earlier incidents.

But that is easier said than done. To date, many accountability cases have run into the same brick wall; governments invoking secrecy and classification laws on the basis that national security is at stake.

For Stafford Smith, who is currently challenging several government secrecy orders via the courts in Britain, this is a cynical ploy designed to play on the fears of the population.

"It's a bizarre notion that governments can say, well, we think that evidence that we committed the criminal offence of torture should be suppressed because we think it's a threat to national security," he says. "It's only a threat to national security because it's excruciatingly embarrassing."

Barack Obama, the US president, repeatedly promised greater transparency during his election campaign. Experts say that he has made a good start, but that reforms take time. How far he will go in lifting the veil of secrecy that hung over Washington when he took office remains to be seen.


Perennial temptation

Are privacy laws used to conceal national embarrassment? [GALLO/GETTY]

Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, describes Obama's transparency initiatives as a "work in progress".

"In 2009 the rhetoric outpaced the reality," he says. "Expectations were raised very high and these expectations have not been fulfilled. That is not to say they won't be; things are certainly getting better."

But forthcoming accountability litigation could prove the greatest test of Obama's commitment to transparency.

"There is a perennial temptation to use classification for political cover," Aftergood says. "One could easily infer that the secrecy around detentions and interrogations policy is less national security and more to avoid controversy."

Stafford Smith believes that the nature of modern politics makes it unlikely that those in charge will relinquish the protection offered to them by these powers.

"Secrecy is an enormous balm for politicians," he says. "They are using the fear of the population to allow them to use national security to cover up national embarrassment."

But it is not just governments that transparency campaigners are up against. Many people believe that their leaders have a right to keep secrets, and while they may oppose the use of torture, they see accountability litigation as playing into the hands of terrorists.


Delicate balance

Stafford Smith argues the opposite. "The essence of democracy is openness, freedom and the rule of law," he says.

"They say that sunshine is the greatest disinfectant. Conversely, making things secret is the best way to gradually encroach on human rights."

There is a fundamental question at the heart of the debate - should governments compromise the ordinary principles of democracy in efforts to keep their people safe?

It is a question that, in many ways, has come to define our age.

In his 2009 book, Liberty in the Age of Terror, British philosopher AC Grayling considers the issues surrounding the interplay between security, transparency and liberty at a time of threat.

Grayling concludes that rather than compromising the civil liberties that underpin democracy, "these principles are precisely for the hard times: sticking by them is what makes a society truly just and worthy of respect".

By that measure, few would disagree that aspects of the response of the US and some European countries to the 9/11 attacks represented an enormous failure.

The question for the second decade of the new millennium, it seems, is how far the failings of the first will be hidden from the populations on whose behalf they were committed.