Gitmo will be closed. Binyam Mohammed will be returned to Britain, or put on trial in the USA. Either way the details of his treatment, and that of all the other inmates, will become public. What are Foggy Bottom and the CIA playing at? Get it over withConsider this BBC story. The interesting thing here is that Miliband's position requires him to argue two mutually impossible things at once; first, he can't possibly let evidence of Mohammed's torture appear in court, for fear of terrible retaliation from the United States, second, that the United States has not threatened such a thing.
The two are mutually dependent, because if the first one was allowed to stand on its own, who would imagine that good relations with the United States were anything worth having? Therefore, it's necessary for the protection of the self-regard of the political classes that the US threat be both unambiguous and invisible. It is like the chapter in The Art of Coarse Rugby about fields with bulls in them; eventually they conclude that the ideal scenario is a field next to the rugby ground with a large sign in it, reading BEWARE OF THE BULL, but no bull.
That way, if you need to play for time, you can hoof the ball into the field and count on your opponents' fear of the bull to waste time - but should you find yourself a couple of points down as time runs out, you can always declare that the bull was taken away years ago and just get on with it. Similarly, no evidence was ever provided of Saudi threats back when this legal dodge - the BAE gambit as I call it - was invented.
Providing evidence of the threats would spoil it. If the government had to admit it was being bullied into covering up for appalling torture or spectacular financial corruption, this would alter certain political facts. But that is not all. The beauty of the BAE gambit is that it's so flexible; because the evidence of the risk is itself secret, it can be invoked whenever required. I said this at the time, and now they're doing it. If they had to demonstrate the threat, this would spoil its effectiveness.
I see no reason to think that the Government is lying now about the Americans' position. In fact, it's very likely that the Obama administration has not contacted them; for example, here's the new CIA director explicitly stating that he considers torture and refoulement to states that practice it illegal. Here are his own words:
On January 22, 2009, the President issued an executive order directing all U.S. agencies to use Common Article 3 of the Geneva Conventions as the baseline for the treatment and interrogation of persons detained in any armed conflict. The executive order also states that agencies must notify the International Committee of the Red Cross of such detainees and provide the Red Cross with access to them. The intelligence community must follow the executive order.Here's the relevant paragraph in the executive order:
With respect to renditions, the intelligence community must comply with U.S. obligations under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, including Article 3 prohibiting the rendition of a person to a country where it is more likely than not he will be subjected to torture.
Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340 2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal “stalking” statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109 366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties.”No torture; no handover to states that torture. So it would be surprising if they were to do so. And, indeed, Miliband explicitly says that no approach to the new administration has been made.
However, the Government has chosen to regard not being explicitly told to stop as equivalent to a reiteration of the threats (whose existence it denies, lest we forget) issued by the Bush administration in 2007. It has done this because it suits the Government's interests. For once, William Hague is right - they should simply ask the Americans to state whether or not the non-threat is still not-in force.
Of course they will not, because it suits them to be able to kick the ball over the BEWARE OF THE BULL sign whenever they think fit. As Scott Horton points out, there are a lot of people about who desperately want a new US administration to be guilty, because it detracts from their own guilt.