New Statesman, 29th November 2004
NOW AND again, practice lives up to theory. Although there’s yet to be an example of a supporter of free speech going to the West End and being confronted with a man who really does shout “fire” in a crowded theatre, opponents of torture are being presented with a dilemma almost as pure in a German court. Wolfgang Daschner, the former deputy police chief of Frankfurt, is on trial for ordering his officers to threaten violence against a suspect. He doesn’t deny it, and the case appears to be a straightforward abuse of power. Until, that is, you hear Daschner’s defence, which reads like a paradox from a moral philosophy textbook.
In 2002, Jakob von Metzler, the 11-year-old son of a Frankfurt banker, was kidnapped and his family received a ransom demand for one million euros. The crime soon went wrong, and the police picked up a suspect who they were convinced was the guilty man. The question was: where was the boy? Was he in a cellar slowly starving? Had he been beaten and left to bleed to death in a lock-up? He might be in urgent need of food or medical attention. They had to find him, but Magnus Gaefgen, who they were sure had the answers to these life or death questions, refused to talk. He just sat there, claiming his right to silence. Gaefgen had every incentive to stop the boy being found dead or alive. No boy meant no witness who could testify against him. No body meant no forensics and perhaps no case. If Gaefgen could hold his tongue, the police might have had no choice but to let him go.
The same thoughts were going through the detectives’ minds. Somewhere out there was a child who needed their help. They didn’t know where, they didn’t know how long a search to find him would take, or whether the search party would ever find him. The clock was ticking. What would you have done: obey the rules but allow a worse crime to take place, or break them and save a child’s life?
Daschner told the court: “We could either influence the suspect, if necessary by threatening direct pressure, in order to save the kidnapped child’s life, or we could take no further action and, in doing so, accept the agonising death of the child.”
Daschner took the first option. He denies he sanctioned torture and says he merely authorised the use of “direct pressure”. His defence relies on this distinction, and in many countries it would be enough to keep him out of the dock. But Germany has experienced totalitarianism in both its Nazi and communist forms, and its legal system is scrupulous in its determination to avoid the slightest slip back into the methods of the police state. Daschner received official compassion for finding himself in a dreadful predicament, but the sympathy was limited. He and a colleague, a former superintendent, were charged with authorising coercion and, if found guilty, face maximum jail sentences of five years. A verdict is due sometime in December, and I would not like to be the judge who has to deliver it. Moral dilemmas are insoluble by definition, and whichever side the court comes down on can’t be the right one.
The Daschner defence is being used by the British government in what is the most important constitutional case in a generation. The law lords are considering whether it is legal to detain foreign nationals indefinitely without charge or trial, possibly on the basis of evidence given from a foreign country and obtained by torturers. As with Daschner, we may have a verdict before Christmas and, as with Daschner, the official line has a seductive plausibility.
At the heart of the government’s argument is the “what would you do?” question. Lord Falconer, the Lord Chancellor, said recently: suppose you get information from a foreign intelligence service – Algeria, for instance – that an Islamist asylum-seeker in Britain is plotting to plant a bomb on the London Underground, but that evidence has been obtained by torturers. You could either ignore it and risk hundreds of people being blown apart, or you could intern the Islamist in Belmarsh and accept that, in this instance, evidence obtained by torture can be used to imprison defendants without trial.
The dilemma sounds no easier when transported from Germany to Britain. You could be sure that if the suspect was left at large and a bomb did explode, few on the Left would pat the government on the head and thank it for making a brave stand on the principle that torture must never be tolerated in any form. Within days, Gore Vidal, Michael Moore and Michael Meacher would be dropping dark hints that the military-industrial complex had wanted to fan fear and justify the war on terror by turning a blind eye to a preventable carnage. A leading French intellectual would follow up with a bestselling book claiming that MI5 had itself bombed Britain in the same manner as the CIA attacked the Pentagon on 11 September.
The authorities can’t win, and perhaps it is time to show kindness towards the Home Secretary, David Blunkett, and Lord Falconer by acknowledging that they have horrendously difficult and thankless jobs. That would be an extreme step, because the arguments about the anti-Islamist campaign are nowhere near as stark or clean as the arguments in Frankfurt. There’s an element of phoney war about the whole business.
The government is asking the law lords to ratify extraordinary powers. No English court has knowingly allowed evidence extracted under torture since the abolition of the Star Chamber in 1641. Soldiers, policemen and spies may have committed terrible crimes in the name of the state, but not once has an English judge ruled that confessions obtained through violence are admissible evidence. New Labour is boldly leading the country back to the 1630s. The point hasn’t been rammed home because civil liberties groups have framed their criticism in terms of breaches of European conventions and United Nations treaties that mean little or nothing to the vast majority of people. But their style may be about to change.
After George W Bush won his second presidential election, a faintly desperate Human Rights Watch commissioned research on how it could reach US voters. It found that dropping the acronym-infested language of the NGOs worked wonders. As soon as it stopped talking about the protocol on this or that covenant and started talking about basic Anglo-Saxon liberties, such as the right to trial by jury, all kinds of Americans sat up and took notice.
The government’s defence of its actions sounds increasingly manic. On the one hand, it says that it is as firmly against torture as its predecessors: this year’s human rights report from the Foreign Office describes how Britain is encouraging repressive regimes around the world to learn to use civilised interrogation techniques. On the other hand, in the case of foreigners, it wants to reserve the right to use evidence obtained by torture to justify internment. It may just be that the security services are keeping their options open. Because lawyers are not allowed to know the case against interned suspects, no one can say if any of them are being locked up because of confessions beaten out of a man in some Saudi prison. The first level of phoniness, therefore, is that the dispute may be about theory rather than practice.
There are signs that the government knows this and is trying to claw its way out of a hole as the possibility of a defeat in the Lords sinks in. The most interesting measure in the Queen’s Speech is the one that has received the least attention: the proposal to allow telephone-tapping evidence to be used in criminal trials. It should allow men such as Abu Qatada, the Jordanian cleric whose sermons have inspired suicide bombers, to be tried in a properly constituted court rather than bundled off to Belmarsh after a closed hearing. This seems to be an official recognition that the emergency powers are counter-productive, not least because they play into the hands of this country’s enemies, who like nothing better than to bellow that western democracy is a sham.
The second reason for the air of phoniness is that there hasn’t been an Islamist attack on Britain. When there is, the phoney war will be over and the pressure on the government to stop militant Islam by any means necessary will be enormous. Those who wish to defend civil liberties should prepare themselves for that moment and be ready to argue that torture is not only immoral but impractical for the self-evident reason that people will say anything and incriminate anyone to stop the pain.
Most crimes are not like the Frankfurt case. There isn’t a ticking clock and a straight choice, but a mass of potential suspects who need to be sifted. Information from the dungeons of the Middle East is a mere tip-off at best, which sets the police off on the long and boring business of double-checking, interviewing witnesses, searching homes and tapping phones. In the end, there is no substitute for good policing and good luck.
Even the apparently stark case of the kidnap of Jakob von Metzler ended messily. The police were quite right: Gaefgen was their man. As soon as he was threatened, he told them where the boy was. But his admission did the police no good. He’d already killed Jakob and all his statement achieved was to send detectives to a lake outside Frankfurt where they found the child’s body in plastic bags under a jetty. Without the body, the suspect may have walked free, but that, I suspect, was scant consolation. The German courts refused to allow Gaefgen’s forced confession as evidence, but convicted him nevertheless and sentenced him to life.
Draw whatever moral you want from the grim tale, but I think you will find it hard to reach a simple conclusion.
PS The police chief was also convicted by the German judges sitting without a jury, as is the continental way. After this article appeared, Helena Kennedy QC wrote to point out that the case was an indirect vindication of the jury system and the Common Law. No British, American or Australian prosecutor would have dared put Wolfgang Daschner on trial for the simple reason that although he was technically guilty there wasn’t a jury in the Anglosphere which would have convicted him.