Torture chambers, medieval barbarism and judicial killing were consigned to the history books until we adopted the more nefarious practices of our irony-free allies across the pond. Clive Stafford Smith writing exclusively for The Firm, says that Scotland’s lawyers have a chance to make a difference and restore our honour.

By the late 90s I had already spent 15 years representing prisoners facing the death penalty in the Southern states – where capital punishment truly means that those without the capital get the punishment. The funding for the defence of someone without money was derisory, a maximum of $1,000 for an entire trial, no matter how many hours the lawyer might devote. In one case we were due the princely sum of $1.47 per hour, so we sued the state under the federal minimum wage law: at least they should raise the rate to $5.25.

Even so, the prisoner facing trial was the fortunate one. Once he was sentenced to death and lost his first appeal the Supreme Court had held that the Constitution guaranteed no right to counsel at all. In other words, a prisoner on death row in Mississippi was meant to represent himself through what might amount to 20 years of the most complex litigation imaginable. If the aphorism that “he who represents himself has a fool for a client” is true, then the system forced folly upon every condemned person.

Willie Russell was one person who was meant to represent himself. When I got to Parchman Penitentiary in the Mississippi Delta, he had only 48 hours before his rendezvous with death. His IQ had been tested at 68, well into the mentally disabled tail of the Bell Curve, and he did not even have a pencil in his prison cell he could use to write his appeals.

With prisoners facing these absurd odds, I set up the British charity Reprieve in 1999 to try to supplement our meagre resources. We had one London employee who funnelled young people over from Britain over to our charity in New Orleans, to help us keep our fingers in a dyke full of looming executions. Dedicated young students would come over and volunteer. We called them “exploitees” since they worked long hours and we paid them nothing.

Their work was invaluable, and remains so to this day. To quantify their contribution, we always require them to keep timesheets. Over the years, the prisoners on death row have benefited from more than sixty years’ worth of free labour, allowing our charity to have an impact far beyond our paltry size. For example, in the wake of Willie’s close call with the gas chamber, British volunteers IQ tested every prisoner on Mississippi’s Death Row, proving that 32 percent of them were mentally disabled, barely able to write their names let alone litigate a complicated capital case. They administered the Law School’s Admissions Test on the principle that if a prisoner could not get into law school he should not have to represent himself. Nobody passed, and one third of them somehow managed to score less than zero. When we used this data to sue, we forced Mississippi to become the first - and to date, only - state in the Union to recognise a constitutional right to counsel in capital habeas cases.

In the past ten years, Reprieve has come a long way. We’ve gone from one staff member to 20. Instead of just doing capital cases in the US, we now range around the world, as well as taking in America’s lawless secret prisons. October has illustrated the scope of the work. It began with an interesting social mix of visitors in our Dorset home. One was Captain Kirk Black, named after the hero of the Starship Enterprise, more recently a SWAT team officer with the Baltimore police department when not deployed with the US army. The second was John Thompson, exonerated after 18 years on Louisiana’s death row.

The three of us were sitting in the local pub, when Kirk turned to JT. “I’m not sure I’ve ever had a conversation with someone like you without saying, ‘You have the right to remain silent,’” he said.

I met Kirk on one of my forays to Guantánamo Bay. He was a tough member of the security unit. He had been told that my clients were terrorists, and that the lawyers were the enemy of his mission. But Kirk kept his eyes and his mind open. When he was later posted to Afghanistan, he was tasked with making the rounds of the local shura councils. Everyone he met told him that Gul Khan should not be in Bagram Air Force Base – he was an illiterate sheepherder, mistaken for Qari Idrass, a Taliban honcho.

Kirk tried to get Gul some justice. The military turned its blind eye. Eventually, frustrated, Kirk sent me an email asking me to help get Gul out of prison. When I worked out this was not some CIA sting, I agreed, but I warned Kirk that no good deed would go unpunished by the military. Kirk said that he didn’t care.

It took two articles in the New York Times, but the White House called while my colleague was driving the lawsuit to court, and promised that Gul would be home in the morning. Kirk was duly threatened with a reprimand, but when he insisted on a full court martial, the Pentagon backed down. Whether he ever makes it to Major Kirk is another question.

Two days after Kirk and JT were drinking in the pub, I was at a British military base, giving a talk to some senior officers about how they could work together with human rights lawyers to raise the chances of avoiding a quagmire in Afghanistan. Human rights are, of course, the most effective weapon in our anti-terrorism arsenal, for the simple reason that if we live up to our ideals, more people respect us and want to help us, and fewer want to kill us.

Unfortunately, the British government has been steadfastly hypocritical in its approach to human rights, endlessly compromised by a desire not to offend the American allies. I talked to the soldiers about the Iraqi renditions case that Reprieve has recently brought against the Ministry of Defence. In February 2009, John Hutton apologised to Parliament because Britain had seized two prisoners in Iraq, and then knowingly worked with the Americans to render them to Bagram, in Afghanistan. That happened in 2004. Hutton admitted that, five years later, these two men were still there, shorn of all human rights.

I wrote to Hutton, offering free legal assistance to reunite the prisoners with the rule of law. Surely Britain would want to facilitate this, given that “rendition” is actually the crime of kidnapping, and Britain has made clear its opposition to detention without trial. To represent them, we needed to know their names, to secure permission from a family member.

The MOD wrote back, firmly refusing to tell me anything. Revealing their names would, I was told, violate the prisoners’ rights under the Data Protection Act. So we gave the MOD notice of our intent to sue, and assured them that such hypocrisy would meet a very cold reception in any civilised court.

Far from defending the MOD position, the British soldiers were very receptive, showing a sensible scepticism at the suggestion that a war can be won by simply bombing or shooting people. However, the continuing practices of the UK military are troubling: British patrols take an American soldier along with them so that any prisoner can be turned over at once. It’s then not a British problem, I was told, though the soldiers conceded that worrisome moral issues remain. We know that the prisoner will not be treated well.
These are not, of course, simply moral questions. They are criminal ones. This is a conspiracy to violate the laws of war, both because of the history of abuse of prisoners in Bagram Air Force Base, and because the U.S. clearly does not respect the Geneva Conventions. British soldiers who follow a policy of turning prisoners over to the Americans, as well as the politicians who promote the policy, are going to find themselves on the wrong end of an arrest warrant.

The following morning, still only Tuesday, I met with Stephen Fry. Akmal Shaikh is a British man who is facing imminent execution in China. Akmal suffers from bipolar disorder, and Stephen had agreed to tape a plea for compassion on Akmal’s behalf, drawing on his own brushes with the illness. It was a case that struck close to home for me as well, since my father was bipolar. We were trying to convince the Chinese how debilitating the illness can be, by collecting everyone’s stories.

Akmal went to Poland to set up an airline, despite having no money. Once there, he found himself homeless, so he decided to record a song that would make him famous and “establish world peace”. He travelled to China on the promise of a man who clearly recognised his vulnerability. Akmal thought he was going for a recording session. At the airport, the man announced that there was only one seat left on the plane, so he would follow along the next day. Since they were already at check-in and had their luggage, would Akmal mind taking the man’s suitcase along ahead?

There were drugs in the case of course, but while that may not have surprised the Chinese customs officials, it came as news to Akmal. He cooperated as much as he could. The Chinese laughed at his eccentricities, not recognising his mental illness, and sentenced him to death.

Until recently, when the Chinese shot a condemned prisoner, the family would receive a bill for the bullet. That practice has now been abandoned, but the lethal consequences of the hollow point bullet remain the same. Reprieve paid for a volunteer forensic psychologist, Dr Peter Schaapveld, to fly to Urumqui to evaluate Akmal, on the promise of access by the authorities. When Dr Schaspveld arrived, the door was barred. Now the Chinese Minister for Foreign Affairs suggests that we have not offered sufficient proof of Akmal’s illness.

Those who would abuse human rights keep us fairly busy at Reprieve. In working with the charity, I have always applied what I refer to as the “mother-in-law rule”, derived from my wife’s mother, Gayrie, who is a former Ballet Rambert dancer. She insists that any charity that she supports should ensure that every pound is held in trust for the clients, so that funds are devoted to the best interests of the prisoners, rather to benefits for those working for the charity. Certainly this is what we do at Reprieve, where nobody is going to grow rich: the director earns only a third more than the lowest paid member of staff.

Notwithstanding this parsimony, this work costs a lot of money. So allow me, if you will, to describe a new supporter scheme we have just established to encourage lawyers to engage with and donate to our work: we are asking you to become a ‘partner’ in Reprieve by giving the monetary value of just one hour of your time. The idea came from a real partner at Clifford Chance, who felt that this was a concept with which lawyers could identify.

Lord Bingham is our chairman, and he and I launched the project on October 19 at the Inner Temple, in London. However, I should stress that I’ve already done my research, and my next article in The Firm will demonstrate that Londoners are the meanest charitable donors in Britain, and the Scots are the most generous – a league table that will strike horror into Sassenach prejudice. Meanwhile, I hope that you’ll help prove me right.

Clive Stafford Smith is the director of Reprieve, the UK legal action charity that uses the law to enforce human rights.
http://www.reprieve.org.uk/donate.