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Peirce for the Defense
Spending time with defence lawyer Gareth Peirce can get surreal, because of the stories she tells.
One such story tells of an attempt to deport an Egyptian dissident from the UK (1). The man was a human rights lawyer who had opposed the Mubarak regime, and been tortured. He fled to the UK and sought asylum, but was detained. He challenged his detention and Peirce took his case.
During that case, a memo from the Home Office to Tony Blair was disclosed, unusually. The memo noted that assurances given by Egypt that the man would not be tortured, if returned, were worthless. On the memo, Blair had written: "This is a bit much. Why do we need all these things?"
The Egyptian won his release, but was then made the subject of a UN assets freezing order, managed by the UK Treasury, requiring that he be given neither money nor benefit without a licence. "’Benefit’ included eating the meals his wife cooked," Peirce explained. "She required a licence to cook them." His family had to account precisely for their household expenditure; because his wife’s English was poor, the children had to submit monthly accounts to the Treasury.
If such pettiness seems farcical, Peirce suggested a more insidious aspect. Cables from the US embassy in Cairo, published through Wikileaks, revealed that the US had been "shipping out" intelligence from torture victims; this might have meant that Egyptian dissidents fleeing to the UK could have been tried or assessed in the UK using intelligence obtained under torture in Egypt: "A circular nightmare." The UK government decision late last year to settle cases brought by British former detainees in Guantanamo Bay, who had alleged British involvement in their torture, means that key information on whether the UK used information obtained under torture will not now be revealed. Peirce thought the decision to settle the cases indicated who should be believed. Anyway, "The battle is still going on."
She has been fighting that battle since joining the firm of pioneering human rights lawyer Benedict Birnberg as a trainee in 1978 (it is now Birnberg Peirce and Partners). She was soon involved in the many Irish miscarriage-of-justice cases in 1980s Britain. The most notorious were those of the Birmingham Six, convicted in 1975 of pub bombings that killed 21 people, and the Guildford Four, convicted months later for bombings that killed five (2). The battles to have those convictions overturned were as much political as legal: "You had to raise public consciousness to raise political sensitivity so that politicians felt they had to do something."
The Birmingham Six served 16 years and were released in March 1991. "For many years there was absolutely nothing," Peirce recalled, "but then all those separate strands ? people reaching out to people reaching out to people ? became an incredibly powerful pressure. Eventually, it became more embarrassing [for the government] to keep the men in than to let them out." During the years when there was no progress she was "scrounging around the highways and byways for evidence. There was plenty to do. The police had constructed a gigantic conspiracy of false confessions, so that had to be demolished." The struggle for those clients became personal as well as professional. "You’re not a lawyer in some sort of isolated position. It’s a joint endeavour. You’re in it with the men and their wives and their colleagues."
The idea that she might have tired of it, or been defeated by it, doesn’t seem to have occurred to her. "But it’s an emergency. Until they’re out, it remains an emergency. There’s no getting around that. They shouldn’t be there. They’ve got to be got out." In passing, she mentioned she felt a "constant guilt" as she worked on the Irish cases, for not doing enough.
In her book, in which she argues that the "war on terror" has been accompanied by a sharp deterioration in standards of British justice, she draws explicitly on her experience with Irish cases. "Was it like this for the Irish?" she asks (3). Her answer is yes, with a qualification: the Muslim community may now be suffering worse. She explained: "At least, with the Irish, there was perhaps some hope that if people were wrongly convicted, and they knew the evidence against them, that you could unpack that evidence. But what we’ve been doing in Britain, for the last 10 years, is finding ways of avoiding trial, with all its guarantees of fairness: secret courts, secret evidence, guilt by association, all of that."
Suspects, she said, are "removed from jury trial, locked up without trial in indefinite detention, subjected to control orders, and deported to countries that will torture them", with the intention of avoiding a situation where miscarriages of justice can be rectified. "It’s a paradox that, at a time when states are extraordinarily well resourced and extraordinarily powerful, they simultaneously develop the highest kind of neuroses about security and safety." She knows about that: she represented the family of Jean Charles de Menezes, shot dead at Stockwell tube station in a bungled anti-terrorist raid, and she represented Moazzam Begg, who was detained in Guantanamo Bay.
Since there has provably been a terrorist threat, was it fair to call the state’s response neurotic ? does Islamic fundamentalism not represent a new type of security threat? "No, no, no, no, no. That’s nonsense … That’s a construct to suit what people want to do. It is always possible to overstate a threat or to state it in such a way as to create an anxiety beyond that which is appropriate or justifiable. Society tends to swallow these claims whole. There’s no informed ability to question them. We have to deconstruct some of the mystique, and the justifications for what is done, to see if we are being told there is a degree of threat considerably greater than there is."
Advocates of state-sanctioned torture often rely on the "ticking time bomb" scenario: if a terrorist was captured before setting off a bomb, and had information crucial to stopping the explosion, how far should the state go to extract that information? Peirce dismissed this: "But the ticking time bomb argument has never worked. You tell me one incident that anyone can cite of the ticking time bomb. Nobody comes up with one: it’s such a useful hypothesis but it doesn’t actually exist. For hundreds of years, torture was permissible: courts could order interrogation by torture. But by the 19th century it had been acknowledged that what it produced was worthless. On the whole, it just produced what the interrogator wanted it to produce. And it destroyed the moral integrity of the nation that permitted it."
The prohibition of torture "has to be a straightjacket for everyone, or you’re lost. This is the concept of inalienable human rights: they attach to the individual for all time against all comers. They’re entrenched. They are treaty obligations we all entered into post world war two, in order that that argument could never be entered into again." Peirce said the "tension" between the idea that there are "exceptional crimes for which we have to have exceptional measures" and the idea that human rights are "inalienable" had "carved the history of the 20th and now the 21st centuries. We have entered into universal pledges to guarantee them but there is a constant tension to break them."
She worries that the Muslim community is being alienated in a manner similar to the Irish in Britain in the 1970s and 1980s. A similar "bleak cynicism" has spread, she said. Young Muslims think: "This is how the state intends to treat us and it’s not getting better; our voices, far from being heard, are no longer registering in the body politic of the state."
Given the grimness of cases she has worked on, does she ever despair? "I think probably most defence lawyers despair every day; that’s probably the nature of it. The more you see of how history unfolds, you see that it never achieves a smooth plateau ? it can get up to a plateau of achievement, but then it starts to slide down again. I suppose that’s what one learns from history ? that it is and it ever will be a constant battle."
Peirce has won repeated victories in that constant battle. Given that they demonstrate that the system is capable of rectifying its mistakes, do they serve to demonstrate its strength? "That’s what people sometimes like to think. But I think when you observe how long and how accidental was the route to exposing or unravelling the worst examples, nobody could claim that the system was triumphant. Some of these cases were played out in the public eye, they could not have been more focused upon. And yet so much that was mendacious and wrong and brutal was covered up for so long."
Colin Murphy is a writer and journalist in Dublin.
(1) This is recounted in Peirce’s recent book Dispatches from the Dark Side: on Torture and the Death of Justice, Verso, London, 2011.
(2) The story of the Guildford Four was later told in the film In the Name of the Father, in which Peirce was played by Emma Thompson. Peirce recalls being told that the film was watched by Bill Clinton the night before he first gave Gerry Adams a US visa, in 1994, in a move later seen as key in embedding the republican movement within the Northern Irish peace process.
(3) This chapter was originally an essay for the London Review of Books.
This article appears in the May edition of the excellent monthly, Le Monde Diplomatique, whose English language edition can be found at mondediplo.com. This full text appears by agreement with Le Monde Diplomatique. CounterPunch features two or three articles from LMD every month.