The Fishbowl and the Three-walled Prison

Excerpt from On Liberty by Shami Chakrabarti

2001: ‘Nothing to Hide, Nothing to Fear’: the Fishbowl and the Three-walled Prison

If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.
                                          – Cardinal Richelieu*

I am sure that everyone over the age of thirty remembers where they were on Tuesday 11 September 2001. I had left the Home Office not long after the 2001 general election for a newly created job as in-house counsel at Liberty. My last brief as a lawyer in the department included anti-terror work and some, but by no means all, my senior colleagues had thought the intended move disloyal. So I was referred to the Cabinet Office. Government rightly has rules to ensure that those responsible for dishing out large-scale defence contracts do not move too easily to the private companies they have rewarded. As a public lawyer, I had no such responsibility or incentive, but given Liberty’s obvious interest in the type of work I had been doing, I didn’t just give notice but asked for permission to take up the new post. After a few difficult months my departure was cleared by a committee chaired by the well-respected former Conservative Attorney General, the late Lord Mayhew. I was released on the understanding that I remain a barrister and bound in confidentiality to any former client, including the government.

I went from the plush offices of a well-kept government building to the tatty converted shop that was then Liberty’s base. I spent my first day absorbing the culture shock of my move from a Goliath department of state to a David-size NGO. There was warmth and good intention but little focus or natural light. It was days before anyone would fix my computer, but in contrast with the rather bizarre practice in much of the public sector, the employer provided milk for tea and coffee. I remember looking in the fridge and asking about the ownership of a particular carton. A bemused new colleague gave the wonderful reply: ‘That’s Liberty milk.’ I was told that I had been employed to inject strategic thinking into Liberty litigation and went home musing on the likely challenges and priorities for the next few years.

My second day at work was 11 September. After lunch with one of my new colleagues I returned to the news of a plane crashing into the first tower of the World Trade Center. Young trainees and interns followed events on their computers rather than TV – a new phenomenon. Was it a hideous accident? But that sick feeling in the stomach was quickly answered by the images of the second plane.

What a moment to have left the security business in pursuit of civil liberties. I sat at my new desk facing the wall. I couldn’t reach my old school friend in Manhattan on the phone. Where and how were other loved ones? I worried for my friends and colleagues back in the Dark Tower, as I affectionately thought of the Home Office, which I imagined to be another target.

So I can hardly underestimate the shock to the American psyche caused by the images and reality of civil aeroplanes converted into deadly missiles attacking downtown Manhattan in a hideous ‘spectacular’ so obviously designed to create a feeling of vulnerability and panic in what at the time was probably accurately describable as the world’s only superpower. Perhaps only the surprise bombing of the US Hawaiian naval base at Pearl Harbor sixty years earlier could even vaguely compare. Elsewhere in the world, including in my own home city of London, people had from time to time become all too used to, even stoic about, terrorist attacks, whose impact then diminished somewhat.

Yet, as hours, days and weeks passed and the initial shock and reflection gave way to hawkish opportunism in Washington and London, my own momentary pessimism grew into a more positive resolve. Perhaps I was in the right place after all. Now more than ever, I found value in values that cherish both safety and liberty. And it would prove useful to have some understanding and experience of a political system that we respect but still must hold to account. I certainly began to see the importance of Liberty and human rights when fear stalks the land.

Things were going to change – that much was obvious. I watched three trends very quickly emerging from the political and legislative response to the horror of 9/11. The death of privacy, the denigration of due process (access to fair legal trials) and the deliberate and determined discrimination against ‘others’, Muslims and foreign nationals in particular, with especially harsh treatment that won’t do for the majority population – at least at first. All three represent a kind of attack on ‘the presumption of innocence’, if as I do, you see it as a way of looking at people and the world and not merely a rule for the courtroom.

Tony Blair famously and perhaps commendably dashed to the United States in solidarity with its people and President at the first news of the Twin Towers atrocity. Sadly this friendship did not translate into passing on the wisdom of past failed British anti-terror internment policies but instead into emulating the younger nation’s new error. Two years later Richard Curtis’s romantic comedy Love Actually would depict a youngish charismatic British prime minister (played by Hugh Grant) standing up to the bullying behaviour and policies of the American president (played by Billy Bob Thornton):

We may be a small country, but we are a great one. A country of Shakespeare, Churchill, the Beatles, Sean Connery, Harry Potter, David Beckham’s right foot, David Beckham’s left foot come to that …

Whether you find the speech stirring or schmaltzy, it could well have done with Magna Carta added to its list. Sadly, the success of this particular popular movie moment was obviously aspirational rather than historical. Unlike the romantic hero of the film, Mr Blair appeared to adopt the thinking of his counterpart, even down to the targeting of foreign nationals in an attempt to circumvent the normal and ancient rigours of fair trial rights under the criminal law.

The death of privacy has affected everyone, if only subtly and incrementally. Stories about giant government databases and the creeping prevalence of CCTV have led to a casualness, a presumption that of course you are being watched, of course ‘they’ are listening in. Do you know the fable of ‘the frog-broiler experiment’? It was told to me some time later by the then government chief scientist Professor Sir David King, but you can read a thousand versions on the internet. The theory is that a frog placed in a pan of boiling water will instantly (instinctively, intelligently or both) jump out and save his skin. On the other hand, if the frog is sitting happily in a pan of room-temperature or tepid water and heat is gently and gradually applied, our amphibious friend will splash around oblivious as he slowly boils to death. This metaphor works well for complacency towards our civil liberties in general, but best encapsulates the easy death of privacy.

After 9/11 senior politicians quickly rushed to the microphones with the unexamined blanket edict that everyone would have to get used to less personal privacy. The new Foreign Secretary and previous occupant of the Dark Tower told the BBC Radio 4 Today programme on 28 September 2001:

It wasn’t Big Brother government. It was government trying to put in place increased powers so we could preserve our democracy against this new type of threat. Now people are saying: ‘Why are these terrorists here?’

A simple exchange was asserted and offered: less general liberty, especially privacy, in return for greater security. And even if you could – who would refuse? After all, it’s not like subjecting millions of people to more acute human rights violations such as incarceration or torture.

In frightening times especially, protecting your privacy can feel a bit of a bourgeois luxury, like net curtains or a garden hedge. Time and again the trade-off seems at first so attractive. A little identity card that links your personal information to a big computer. A painless saliva swab and retained DNA of everyone arrested whether ever charged with, let alone convicted of, a crime. Cameras everywhere and later, as people came to live more and more of their lives online, ‘the Snoopers’ Charter’ to license the blanket retention and monitoring of everyone’s complete web-life: every email, skype session, visit to a website. What’s the problem, you paranoid libertarian loon? The innocent surely have nothing to fear?

But we all have something to hide or at least to protect. We all have a wealth of past, permanent or potential information about us that could in the right or wrong hands lead to abuse by accident or design. And the appetite for data collection is rarely easily sated. When identity cards were introduced in Britain during the Second World War they carried just a few pieces of identifying information about the holder. By the time the scheme was eventually abandoned years later after complaints from disgruntled citizens tired of having to produce the document for no good reason, the amount of personal information held on the card had multiplied several times. And this even without the aid of computer databases.

The way in which we enjoy and understand privacy can be highly culturally sensitive. European cousins who express horror at London as the CCTV capital of the world shrug their shoulders at our resistance to carrying identity cards. Conversely, even President Bush, even after 9/11, found identity cards too authoritarian a step for the American people. So what was the problem with ID cards? My concerns were always threefold.

Firstly, we live in a country without a written constitution, entrenched bill of rights or even strong law of privacy. What has somehow compensated for centuries, is a libertarian instinct that demands that the police officer should identify himself to us and we need do likewise only with reasonable cause.

Secondly, as proposed in the Queen’s Speech in November 2003, the National Identity Register – the gargantuan centralized database to which ID cards would be linked – was going to provide a system like none before. It would have a huge capacity to hold reams of private information centrally, providing a honeypot for fraudsters and terrorists alike. It was intended to hold at least fifty pieces of information on every adult who had been in the UK for more than three months. This vast amount of data would have been an enormous vulnerability – all that information about you, held in one place, ripe for identity theft. Crucially, unlike traditional identity cards, where both the subject and the authorities can look at the same information in plain view and contest its veracity, the proposed system would leave the holder in the dark as to just how much information and of what accuracy was being collected, held and interpreted by those with power over him. This creates a huge distinction with identity documents for specific purposes, such as passports, bank or national insurance cards and even the databases which sit behind them. In these cases, the database should, by definition, hold only such information as is relevant to the obvious and stated aim of the enterprise (proof of nationality, banking facility or right to work).

In the years of the British political battles over ID cards, they were at times, it seemed, offered up as a panacea for everything except global warming. Ministers told us that terrorism would be prevented. And yet we know suicide bombers are more than happy to be identified. Benefit fraud would be foiled – even though most of it relates to alleged health or circumstances rather than identity. And of course the flow of illegal immigration would be stemmed once and for all.

And in this third point lies the rub. For if identity cards are to be used to deal with illegal immigration, a country is moving from immigration control purely or predominantly at the border to ‘in-country’ control on the streets. Ask a French-Algerian or a German-Turk whether they feel as comfortable with the obligation to show papers on demand as their white neighbours and friends. Inevitably, if such control is a stated purpose and the authorities have the power to check the status of anyone on any street in their country, who do you think is going to be stopped umpteen times a day, week and year? The experience of police powers to stop and search without suspicion should persuade you of the dangers of granting indiscriminate power of this kind.

So as many to the centre-right of British politics reviled the Blair–Blunkett ID card ambitions from a libertarian ‘rights of free-born Englishman’ instinct, some to the left knew what a tool for racial oppression identity cards would be. Labour MP Diane Abbott once described them as ‘a new pass law in our inner cities’. The Rt Hon. David Davis MP, long the champion for civil liberties on the right, dismissed them as ‘a massive reversal of the relationship between the citizen and the state’. Davis and Abbott are both right and it has been a privilege to sometimes see such cross-spectrum coalescing around democratic values that are not always the most popular.

Our DNA isn’t just an identifier like a fingerprint or signature. It can reveal extremely private things about our familial past and predicted future; things we don’t know ourselves and might not want to know. Your true parentage for example, or a genetic condition which makes you uninsurable. In the criminal justice context DNA can obviously provide vital evidence of identity and location, capable of incriminating or exculpating a suspect. But think of the dangers of discrimination, blunder and abuse if the most intimate information of millions of innocents is stockpiled for ever, as though we’re all suspects now. Later, at the height of the mass-retention policy in 2006, the compulsory garnering of everyone’s DNA was mooted by then Prime Minister Tony Blair, but no draft legislation was ever brought before Parliament. Perhaps the image of millions of grandmothers, toddlers and everyone in between queuing up at the police station or GP’s surgery to give a strand of hair or saliva swab under pain of prosecution for non-compliance was, in the end, thought too distasteful and unattractive to be achieved overnight.

Instead the database grew by stealth until Britain’s was the largest in the world. The police were using their power to take the DNA of arrested people and then never destroyed it, even if they were let go moments later, were never charged or even were acquitted by the courts. Don’t get me wrong, DNA must be an investigative as well as an evidential tool. I have no problem with taking the DNA of someone arrested on suspicion of a serious offence to which it might be relevant (such as a sex or violent crime or burglary). It could be highly indicative as to who littered the street with cigarette butts, but I consider that offence too trivial. Insider dealing can be very serious but it is hard to see how DNA might help solve or prove the crime. However, as we have a criminal justice system built on the presumption of innocence, we arrest on suspicion, charge with evidence and convict on proof. Of course the authorities should have a reasonable period to retain identifying information in case something else turns up, but this cannot last for ever.

While the 2001 legislation theoretically allowed officers discretion to destroy entries, ministerial exhortation and ACPO (Association of Chief Police Officers) policy made such discretion a myth, unless challenged by the wealthy, lawyers or celebrity. Inevitably, as arrest – with the low threshold of ‘reasonable suspicion’ of criminality – was the trigger for taking a sample in the police station, a wholly disproportionate percentage of young black men in particular found themselves on the database permanently without ever having been convicted of a crime. My genetic privacy is free; theirs is a little more expensive. It eventually took a Strasbourg Court of continental judges (some no doubt with memories of less than democratic regimes) to rule against it in the case of S & Marper v United Kingdom. They may have imagined the potential horrors of ‘blanket and indiscriminate’ DNA retention. The obvious irony of ‘indiscriminate’ policy is that it invariably proves highly ‘discriminatory’ in practice.

The ‘nothing to hide, nothing to fear’ debate would rage well into the next decade, and well beyond the New Labour government. It has forced me to reflect a great deal on the individual and societal value of privacy. For it isn’t just the obvious authoritarians who sometimes overlook it. When you spend your life hearing testimony of the gravest human rights abuses around the world, the imposition of even omnipresent surveillance can seem pretty tame by comparison. If you ever drift into feeling this way, try to see the wonderful 2006 German film Das Leben der Anderen (The Lives of Others), set in the old East Germany under the grip of the Stasi (secret police). It presents a moving but never sentimental or hysterical account of life without privacy with which I find it hard to compete and yet, for the sake of completeness, will try.

If all our fundamental rights flow from dignity, equality and fairness, respect for private and family life (Article 8 of the European Convention on Human Rights) is obviously inherent to dignity. In the introduction I argued that the legal protection of our civil and political rights is essential to the preservation of democracy itself. However, these rights are also a reflection and protection of what it is to be human. From a very early age we protect our modesty and privacy, closing the bathroom or bedroom door, or at least wishing to. This instinct appears universal in communities however rural or remote, the world over. Because we are social creatures who come together in families, communities and societies for all sorts of beneficial activity our privacy cannot be absolute. Yet without it altogether, how can there be any dignity, intimacy or trust? Further, it is hard to imagine how other vital freedoms can flourish in the fishbowl under the constant gaze of the state. How can you secure sound elections without a secret ballot or fair trials without confidential legal counsel? Where is the space for true freedom of conscience or association if personal reflection or meetings with others of our choosing cannot be in private? Even free speech, which is so often apparently in tension with personal privacy, is sometimes quite dependent upon it. Think of how jealously a journalist will guard her confidential sources or the greater courage that some find when writing anonymously (whether online or offline).

For our rights and freedoms are not like those pick-and-mixes that we knew in old-fashioned sweet shops and find again in the foyers of modern multiplex cinemas. You can’t take free speech while dumping personal privacy. The values are as interdependent as the people they protect. In particular, when ‘balanced’ or ‘qualified’ rights like privacy are compromised too sloppily without rational and proportionate justification or defined limits, the inevitable outcome in practice is significant discrimination in the application of the intrusive power. So-called ‘blanket’ power is rarely truly universal in practice or effect. Look at the astonishing proportion of black men on the DNA database – almost 40 per cent – or who find themselves subject to stop and search without suspicion – on average six times as likely as white people.

But discrimination is not only casual, careless or inadvertent. It can also come by the deliberate design of policy and legislation. Just as many people were subtly or slightly more intrusively affected by the US–UK domestic responses to the 9/11 atrocity, others were singled out for a more direct, determined and acute violation of rights. Guantanamo Bay was an almost fictional place which many of us had previously associated with either the jolly summer song ‘Guantanamera’ or the 1992 Rob Reiner–Aaron Sorkin courtroom drama A Few Good Men. Now, it stands as an icon of injustice: a prison camp and ‘legal black hole’, where ‘enemy combatants’ have been detained without charge and mistreated for well over a decade in freedom’s name at the hands of one of the world’s most mature democracies. How was it possible? How did clever constitutionally literate people advise and then sanction such an obviously counterproductive scandal; a festering sore on the conscience of the democratic world that would give succour to anti-Western anger everywhere?

The sight of passenger aircraft ploughing into two of the central pillars of the New York skyline at the cost of nearly 3,000 lives brought home the precariousness and vulnerability of life. It was shocking, sudden, cruel – and man-made. It surely says something about the fragility of ‘constitutionalism’ and any bill of rights based more on citizenship than humanity that lawyers felt able to advise President Bush that the combination of an offshore location and foreign nationality could make Guantanamo and its eventual inmates a non-place full of non-people for the purposes of the law.

As far as I know, there are no obvious musical or cinematic references to Belmarsh Prison or to Thamesmead in South London, where the ugly and bleak container sits. Belmarsh was the location for the United Kingdom’s own experiment in twenty-first-century internment, which took place for over four years from the winter of 2001. Nothing as crude perhaps as orange jumpsuits and an exotic offshore venue for Her Majesty’s government, but nonetheless, here too, the foreign nationality of terrorist suspects became justification for detention without charge or trial.

The creative device on this side of the Atlantic was not an offshore island but immigration law which had long and understandably allowed migrants to be detained for purposes of border control: for examination on entry and for the purposes of effecting removal or deportation of an unwelcome or overstayed visitor. Even so, this type of administrative detention by the UK Secretary of State is not incompatible with the right to personal liberty and the right against arbitrary detention under Article 5 of the Human Rights Convention, as long as it is necessary to the stated purpose, provided for in legislation and subject to scrutiny and appeals in the appropriate courts and tribunals.

Back in 1996, I had not long arrived in Mordor, yet another nickname for the Home Office. The UK government lost what was to become a seminal legal case in the Strasbourg Court of Human Rights. Mr Chahal was an Indian national who had been living in Britain since the early 1970s when he came to the attention of the authorities on suspicion of involvement with Sikh separatist-inspired terrorism. He was detained pending deportation to India where, he claimed, he would be subject to torture. By the 1990s, there was already a well-established system of tribunals to provide scrutiny of and appeals against immigration decisions, but in ‘national security cases’ (where the Home Secretary signed a certificate that a particular person was non-conducive to the public good on national security grounds) proper appeals were replaced by a paper review by retired judges (often referred to as ‘three wise men’) over lunch in the House of Lords.

Chahal ended up being detained for over six years without proper legal scrutiny. Unsurprisingly, the European Court of Human Rights was not amused and in 1996 established some important principles which have had a significant impact onsubsequent UK security policy. One principle was that to satisfy Article 5, the right to liberty, there must be some kind of proper legal scrutiny and redress, even in national security cases. Another crucial principle is that the absolute rule against torture and inhuman and degrading treatment under Article 3 does not refer only to torture by the direct hands of agents of a signatory state. That state will also be responsible if it sends someone under its control to a place of torture elsewhere. This principle in particular has caused considerable controversy ever since and is the apparent excuse for a great deal of human rights’ antagonism. Yet it is surely obviously logical. What kind of absolute protection from torture would allow governments to send people to such treatment, whether by extradition, deportation or otherwise, as long as they don’t do the dirty work themselves? Such reasoning would sanction Guantanamo itself and even ‘extraordinary rendition’ – or, as we in the real world call it, state-sponsored kidnap and torture.

As Orwell would have observed, euphemisms for the previously unthinkable, and therefore unspeakable, became extremely popular with the US and UK governments in the years after 9/11. We’ve touched on ‘enemy combatants’, a phrase designed to create a new category of prisoner subject to neither the ordinary criminal law nor those governing war, and ‘rendition’ (which refers neither to singing nor wall plastering). We were also later to learn of ‘waterboarding’, which was not a seaside sport but the dark interrogation practice of beginning to drown a suspect in order to extract information from him.

Back in 1997 and as a young Home Office lawyer, I worked on a piece of legislation which probably would have passed in similar form regardless of the outcome of the now famous general election. It was designed to implement the Strasbourg Court’s judgment in the Chahal case by creating a tribunal capable of balancing the requirements of legal scrutiny of immigration decisions with the need to protect national security. Inevitably an imperfect compromise, the Special Immigration Appeals Commission (SIAC) was born: a secret administrative commission rather than a court, from which the migrant, his lawyers, press and public would be excluded for much of the hearing at which time a ‘Special (security-vetted) Advocate’ appointed by the Attorney General would attempt to test the government’s case against him ‘in the interests of justice’.

The obvious flaw in this fudge is that the Special Advocate is not allowed to speak to or take instructions from the subject of the hearing once he has seen the secret intelligence in the case. Thus he has little or no idea of what the migrant might say in response to it and what their alibi or innocent explanation might be. So, for example, if the case against a Chakrabarti facing deportation were that she had been seen having breakfast with a known terrorist at a particular place on a particular day, it is highly unlikely that she or her lawyers would be told this vital specific allegation. No doubt the agencies would argue that to reveal this detail would somehow risk identifying the undercover agent or informant who ran the café or also attended breakfast as a mole within the terrorist cell. The obvious problem however, is that if, say, Chakrabarti could indeed prove that this must be a case of mistaken identity, by being able to demonstrate that she was on the other side of the world, or in prison, or on the operating table at just the time of the alleged sighting, she won’t have been afforded this pretty basic fair trial opportunity.

Indeed in one now notorious immigration case some years later, it turned out that the authorities were arguing that a particular false passport had been used by two suspects in different parts of the world at exactly the same time. The mistake emerged only by a chance coincidence because the same Special Advocate had been appointed by the government in both cases and he remembered something about the false passport that was reminiscent of the earlier case and was then able to alert all concerned to the gaping hole in the Secretary of State’s story. But such coincidences rarely arise and if, as would have been far more usual, a different vetted barrister had been appointed in the second deportation case, it would have been impossible to expose the potential injustice – the shroud of secrecy hanging over both the proceedings and past judgments of SIAC.

People argued that the SIAC model was at least a little fairer than the complete lack of any appeal system that was the case before Chahal v UK and the Special Immigration Appeals Commission Act 1997. One could also argue that in a classic immigration case, the secret matter in issue was ultimately one of Home Secretary discretion rather than the migrant’s fundamental rights. By definition, non-nationals have no ‘right of abode’ in the United Kingdom and therefore enter and stay out of the goodness of the Home Department’s heart. Where fundamental rights such as the rule against torture (Article 3) or the right to respect for your private and family life (Article 8 – perhaps because you have a British child or spouse who cannot be expected to move with you to your country of nationality) are engaged, the issues in question need not require resolution in secret.

Sadly, however, secrecy is contagious and once the authorities become used to the delights of unfair lopsided pseudo-courts, they are unlikely ever to want to subject themselves to proper legal accountability again, even in other contexts. Who wouldn’t take the permanent advantage of a secret chat with a judge rather than equal treatment with a legal opponent, if they could get away with it? So the obvious creative wheeze in the UK after 9/11 was the attempt to replace centuries-old fair criminal trial traditions – where you know the case against you and face a public trial in front of your peers – with administrative law ‘immigration-style’ as a means of locking people up indefinitely without trial, charges or even a police interview. The legal fiction was that this, being applied only to foreigners, was immigration detention pending deportation. However, according to the government’s own argument the migrants in question could not be deported on account of the likelihood that they would be tortured in their home countries. It was the equivalent of arresting a group of teenage suspects and then holding them indefinitely in a prison temporarily designated as a boarding school. Yes, school-age children can lawfully be compulsorily educated just as migrants can lawfully be detained pending removal from the territory, but that isn’t the intention or reality of the situation and everyone knows it. This was internment plain and simple and as divisive and counterproductive to national unity, community cohesion and intelligence-gathering as it previously had been in Northern Ireland during the troubles.

The New Labour Attorney General Lord Goldsmith would come to refer to the Belmarsh policy enshrined in Part 4 of the Anti-Terrorism, Crime and Security Act 2001 – emergency legislation rushed on to the statute book in the few weeks leading up to Christmas of that year – as constituting a ‘three-walled prison’. The inmates could not be deported by the government due to the rule against torture (as applied in Chahal), but they were free to leave voluntarily at any time as long as they were prepared to take their chances with the torturers back home. What a choice – between your own revolver and the firing squad.

The ultimate fiction and grand abuse of language was the ‘War on Terror’ itself. President Bush’s speechwriters had gone to war with an abstract noun that was ever part of the human experience to create a ‘long war’, ‘new normal’ or permanent emergency. Obviously, to those in the middle of an actual war, that war self-evidently feels indefinite, as it is impossible to know precisely when it will end. At the height of the Blitz, Londoners had no idea when exactly the war would be over and normal life (including temporarily suspended rights and freedoms) could resume. And yet they knew that when that time came, they would be able to verify it with their own senses (the end of hostilities, the signing of a peace treaty). This could never be the case with a ‘War on Terror’ – the term first used by President Bush in an address to a joint session of Congress on 20 September 2001, in the aftermath of the attacks on New York and Washington. This war might go on for centuries until a President Bush or Clinton the twenty-third or twenty-fourth promises that it might be over and victory secured with just one more push. And of course a permanent emergency is the most dangerous contradiction in terms, with its permanence making it no longer temporary or exceptional. It is instead a new way of living – much closer, ironically, to the terrorists’ fantasy – without the rights, freedoms and values on which our society is supposed to be built and which in the darkest of times more than ever we need to guide us.