H.R.10 - 9/11 Recommendations Implementation Act

A worm's eye view

Andrew Brown
Monday October 4, 2004

The anti-terrorism bill currently passing through the US House of Representatives would put Turkey to shame, says Andrew Brown
Suppose the government of France were to debate an anti-terrorism law which said that any British citizen entering France might be arrested on the word of the French minister of the interior, and held at his pleasure without the possibility of judicial review.

Even the most swivel-eyed Europhobe might not believe this would actually happen, but it would make a wonderful scare story.

Then suppose that the new law was discovered to have another provision: that the Brits arrested under this law might legally be shipped to Algeria for torture at the minister's discretion.

The wording would be something like this (I translate): the minister -

"shall revise the regulations prescribed ... to implement the United Nations convention against torture and other forms of cruel, inhuman or degrading treatment or punishment;

and

"the revision shall exclude from the protection of such regulations aliens ...including rendering such aliens ineligible for withholding or deferral of removal under the convention."

This law - let's move into the realms of paranoid fantasy here - would apply retrospectively, so that anyone whom Nicolas Sarkozy had wanted to torture at any time in the last ten or 15 years could now be shipped off to any country with sufficiently advanced torture chambers (whether or not they came from there in the first place).

In a final touch of Gallic logic, it would explain that that "the burden of proof is on the applicant to establish by clear and convincing proof that he or she might be tortured."

Of course, this couldn't happen; and if it ever did, there would be an outcry in the British press that an EU country was behaving so barbarously. The Turks are being pressured to outlaw torture in their country, and they aren't even EU members.

The moral of this little story is that we hold Turkey, and Turkish law enforcement, to higher standards than the USA. Because the bill I quoted isn't fantasy. It has been introduced into the House of Representatives by the Republican leadership and may well be passed there on Thursday. It is contained in Sections 3031 and 3032 of "HR 10", the big and largely uncontroversial bill giving effect to the recommendations of the 9/11 commission: the obnoxious sections start at around page 210 of a 542 page document.

It is the concealment which suggests there is some scrap of shame left in the Republican party. The bill is sponsored by several at the top of the party - among them Dennis Hastert, the speaker of the House of Representatives - but they cannot be certain that it would get through if it were openly debated. It's possible that a growing public reaction will kill this section of the bill, though one should not underestimate the determination of some sections of the American security apparatus to use torture as a matter of routine.

For American voters, the answer is simple enough. They can write to their representatives; they can vote; they can raise a fuss. We appreciate their altruistic efforts - and they are, I think, altruistic: at this stage, discretionary torture is a treatment reserved for foreigners.

The question that interests me, however, is what a British voter can do. Last year. David Blunkett signed an extradition treaty which removes the ability of British courts to test American evidence. If the Americans want to extradite a British citizen, they need only prove he is who they say he is. Once their new law passes it will be entirely legal for them to ship their British victims off to Syria for torture without trial.

In other words, the British government, whose first duty is to ensure the safety of British citizens and their fundamental human rights, can no longer guarantee that we can't be tortured, or that it won't hand us over to another government which will torture us.

To ask your government to protect you from torture would seem a fairly modest claim; so far as I know it has been accepted in British law that government shouldn't torture people since around 1680. Obviously, it can be overridden by force majeur. We expect our government to protest about the treatment of the detainees in Guantanamo, but not to mount an SAS mission to rescue them.

But to sign a treaty of extradition with a country that practices torture is another matter. It is quite simply monstrous. It isn't what was meant to happen when Mr Blunkett signed the treaty last year. I'll believe this government is wrong about a lot of things, but not that it would knowingly embrace systematic torture as a means of state policy.

But that is what the new American bill would legalise; and this is the sort of surprise that you get when you set off down a slippery slope.

For the first time in my life, I begin to understand the rage of the Europhobes, when they contemplate their ancient liberties destroyed by a superstate without a chance to vote against the process. But I can't help feeling that the right to straight, unbroken legs is more important than the right to bendy bananas.

· Andrew Brown, whose column appears on Mondays, is the author of The Darwin Wars: The Scientific War for the Soul of Man and In the Beginning Was the Worm: Finding the Secrets of Life in a Tiny Hermaphrodite. He also maintains a weblog, the Helmintholog.