Craig Murray and I have a fleeting moment of agreement, rather like ships sailing in opposite directions who pass and exchange friendly waves.

He commented on my earlier piece about Libya and MI6, responding to another reader:

Your second point rests on the premiss that if government ministers approved something, then it was legal. That is simply not true. A previous government may have done something, and may even have briefed their successors about it. if it were illegal, nothing in that means it should not subsequently be the subject of criminal investigation. Theoretically, the current government has no role in either encouraging or stopping the criminal investigation – it is quite rightly a matter for the police and CPS.

However, a new development arises. Two Libyans are launching civil actions in the English courts against my old colleague and good friend Sir Mark Allen, over the circumstances under which they were subject to ‘rendition’ to Tripoli and subsequent abuse by the Gaddafi regime. The Guardian:

Saadi was detained in Hong Kong in 2004 and then forced on to a plane to Tripoli with his wife and four children in an operation that MI6 allegedly mounted in co-operation with Koussa, Gaddafi’s intelligence chief at the time. Saadi says he suffered years of torture.

Belhaj was detained in Bangkok along with his pregnant wife after an MI6 tipoff and was allegedly tortured by American agents for several days before being flown to Tripoli, where he says he was tortured and detained for several years. His wife was detained for several months.

The issue here is not any claim that MI6/HMG engaged in torture. Rather it is that MI6/HMG are said to have been ‘complicit’ in torture in Libya of certain Libyans by certain other Libyans. Which raises the question: what does complicity mean?

Back in March 2010 in an earlier exchange with Craig I looked at precisely this question. Craig and other maximalists insist that even to possess information which is suspected as having come from torture amounts to ‘complicity’. That position, as the House of Lords found in 2005, is incorrect as a matter of law (and common sense):

Very (very) broadly speaking, I conclude from this judgment that the the top legal body in the UK drew at least three important conclusions:

  • That it may be acceptable for the state’s executive authorities to receive/acquire and use information which they know or think may have been derived from torture, if they believe that there is a clear public interest in doing so (eg saving lives)
  • But it is not acceptable for the judicial authorities (courts and tribunals) to hear and use such evidence in reaching conclusions directly affecting the rights of individuals
  • If seemingly well-founded allegations are made that evidence has been or may have been produced by torture, the court/tribunal has to consider most carefully how to deal with that evidence, but is not bound to conduct an exhaustive investigation of the origin of the evidence to reach a final view as that would just not be possible

These conclusions do not apply directly to the current emerging case, namely where HMG allegedly took action leading to Libyans being returned to Libya where they say they ended up being mistreated.

The problem here is that any secret ‘rendition’ by us or even a contribution to secret rendition by others is likely to have been endorsed by Ministers, either specifically or as a general rule. So to single out one civil servant for litigation is mischievous if not malevolent.

Second, the whole case turns on the idea that ‘complicity’ can be stretched far beyond any immediate link to maltreatment. Any abuse or torture was not committed by HMG or its officials. Is it really fair to make us legally responsible for horrors committed by others far away?

Even if you think that it is reasonable to do so on the moral level, you need to draw a line somewhere: these actions as alleged fall on the other side of the line and so are too ‘remote’ to amount to complicity. Under what principle to draw the line in specific cases? What balancing factors might fairly be taken into account?

What if our attempts to bring under control Gaddafi’s WMD have hit the rocks and it looks like we need to make some ‘minor’ concessions to Gaddafi’s entourage to get things restarted?

How do we even begin to weigh up the possibility of abuse of two individuals with the possible dangers to millions if the WMD are not secured asap?

This leads us back to the core policy dilemma, namely how to deal with wicked regimes? Thus:

Above all, if you engage with dirty people, how to avoid some of their dirt ending up on you? The promise of Engagement is that it offers the hope of slowly but surely changing things for the better; the danger is that while you are doing that, the key leaders of the regime in fact get far richer and learn how to be oppressive in new, cleverer ways.

So in the Libya case. The stupid/wicked/naive Brits trained the Libyan security forces! Of course we did: if you want to set in motion a process of reform and enlightenment in such regressive institutions, what else to do?

Think about what this means in practice. If the Libyan secret police are known torturers, you will be training them while their torturing ways continue. Even if the total amount of Libyan torture declines sharply as a direct result of Libyans cleaning up their act during the wider normalisation process, your trainers in one way or the other will be helping a torturing regime be more efficient.

Yet without outside democratic engagement (and the high-level civilisational rewards which rightly flow to the regime for behaving in a less extreme way) the chances of reducing Libyan torture at all (and thereby opening some small new space for opposition trends) are hugely reduced…

This nasty, bleak, lonely policy and moral frontier was where Mark Allen and his colleagues were operating. If the way is opened to sue them for outcomes which were far from ideal if not awful, who is going to be ready to do this sort of fundamentally important work?

The issue here is simple. Not what the ‘right’ choice is when you are dealing with a regime like Gaddafi’s. There isn’t one.

Rather it is ‘who decides?’.

We seem to be ending up in the absurd position that sanctimonious lawyers and unelected judges far from the operational and policy realities of such questions are seen as more ‘responsible’ than elected politicians and civil servants who are elected to do our dirty work while operating to arguably the highest standards of public probity in human history.

Yes, judges have the benefit of detachment. And yes, Ministers and officials can get so wrapped up in what they are doing that serious errors get made. But this is one where the best people to judge are voters, not lawyers.