Since the terrorist attacks of September 11, 2001, when the United States — the post-World War II driver of the Universal Declaration of Human Rights and the Geneva Conventions, prohibiting torture and cruel, inhuman or degrading treatment or punishment — went off the rails and introduced a horrendous global program of rendition, torture, arbitrary detention and prisons beyond the law, other countries who were drawn into the “War on Terror” have striven to keep their own involvement quiet, and for good reason. Although the Bush administration was drunk on unfettered executive power, and was largely encouraged and supported by members of Congress, elsewhere these supposedly “robust” responses to terrorism were conducted with far more subterfuge, as the governments in question recognized that they were crimes, and, at worst, crimes against humanity.
Despite the ostrich-like maneuvering of America’s allies, several significant watchdogs refused to let these crimes remain hidden. In Europe, for example, Dick Marty, a Swiss senator and a member of the Parliamentary Assembly of the Council of Europe, led an investigation into secret detention and rendition involving Council of Europe member states, and published two damning reports in June 2006 and June 2007, in which he concluded that there was “now enough evidence to state that secret detention facilities run by the CIA [existed] in Europe from 2003 to 2005, in particular in Poland and Romania,” and that “All the members and partners of NATO signed up to the same permissive — not to say illegal — terms that allowed CIA operations to permeate throughout the European continent and beyond.”
In February this year, the UN published a report, the “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” which was prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on arbitrary detention, and the Working Group on enforced or involuntary disappearances. The report concluded that at least 40 countries, including the UK, Germany, Canada, Australia and Italy, were “complicit in the secret detention” of prisoners seized in the “War on Terror.”
Exposing British complicity in torture in the UK courts
In the UK, questions about the security services’ complicity in torture hit the courts in the summer of 2008, in relation to Binyam Mohamed, a British resident seized in Pakistan in April 2002 and subsequently rendered to Morocco by the CIA, where, as he told his lawyer Clive Stafford Smith, the director of the legal action charity Reprieve, he was tortured for 18 months, before being rendered to the “Dark Prison” in Afghanistan, a secret CIA prison, and the US prison at Bagram airbase. He arrived in Guantánamo in September 2004.
In the summer of 2008, triggered by the British government’s refusal to release 42 documents in its possession relating to Mohamed’s treatment in Pakistan by US agents, his lawyers secured a judicial review, in which the judges — Lord Justice Thomas and Mr. Justice Lloyd Jones — concluded that the British government had become involved in “wrongdoing” committed by the United States. The judges explained that Mohamed’s detention in Pakistan from April to July 2002, when a British agent visited him, was “unlawful” under Pakistani law, because he “was being detained by the United States incommunicado and without access to a lawyer.” They were also highly critical of the fact that the British intelligence services “provided further information to the United States and further questions to be asked of BM [Mohamed]” for nine months after the visit in May 2002, even though he “was still incommunicado and they must also have appreciated that he was not in a United States facility and that the facility in which he was being detained was that of a foreign government (other than Afghanistan).”
The judges ordered the government to allow Mohamed’s lawyers to have access to the 42 documents, but their attempts to publish their own summary of the documents, describing what US agents did to Mohamed in Pakistan, was blocked by the foreign secretary David Miliband, who argued that publication of the summary would threaten the intelligence sharing relationship between the US and the UK.
This impasse, which involved several more hearings over an 18-month period, was only finally broken in February this year, when the Court of Appeal ordered the government to release the summary, revealing that Mohamed had been subjected to a program of carefully monitored sleep deprivation that resembled aspects of the torture program being developed at that time for use on the alleged “high-value detainee” Abu Zubaydah, who was seized in Pakistan 12 days before Mohamed.
In the meantime, the Metropolitan Police began investigating claims that the security services had been complicit in the torture of Binyam Mohamed, and although Mohamed was released from Guantánamo in February 2009, the pressure on the government continued when seven former Guantánamo prisoners (including Mohamed) launched a civil claim for damages, suing MI5, MI6, the Foreign Office, the Home Office and the Attorney General on the basis that agents of the security services were involved in unlawful acts and conspiracy, and that they were involved in, or failed to stop, their detention and ill-treatment (and in some cases, their “extraordinary rendition” to secret prisons).
By December, the ongoing litigation also included Shaker Aamer, the last British resident still held in Guantánamo, whose lawyers sought the release of documents demonstrating that British agents were present in the room when he was subjected to torture in US custody in Kandahar, Afghanistan before his transfer to Guantánamo. In February this year, the Metropolitan Police announced that their investigation into the alleged complicity of the security services in torture had been expanded to include Shaker Aamer, and that they were also investigating a third case involving MI6 and another possible torture victim, who was not identified.
More British complicity in torture exposed: in Pakistan and six other countries
While all these cases involved cooperation with the United States, other troubling revelations indicated that the British government was unilaterally involved in dubious practices involving torture in other countries. From April 2008 onwards, Ian Cobain of the Guardian has steadily exposed a number of cases involving the torture of British citizens — primarily in Pakistan, but also in Bangladesh, Egypt and the United Arab Emirates — which have demonstrated British involvement in torture abroad, and have involved specific requests for particular men to be seized, questions to be asked during interrogations, and, on occasion, the presence of British agents in person (although never during actual torture sessions). A detailed article summarizing Cobain’s findings was published in the Guardian in July 2009 (although there have been other developments since), and a Human Rights Watch report, “Cruel Britannia,” was published in November. In addition, in April 2009, Cageprisoners published “Fabricating Terrorism II” (PDF), which added Jordan, Kenya and Syria to the list of countries in which the British security services had been involved in the detention and dubious interrogation of suspects.
In response to the steady leak of damaging information, the Conservative MP David Davis forcefully exposed British complicity in torture in the House of Commons last July, drawing attention to the case of Rangzieb Ahmed, a British citizen seized in Pakistan with British help, and then subjected to torture, which including having his fingernails ripped out. Ahmed was then returned to the UK, where he was convicted of terrorist offences in a trial in which all mention of his torture was prohibited (although he has just been given leave to appeal). Compared to this intervention, the steady complaints of shadow foreign secretary William Hague were less spectacular, but he repeatedly called for an investigation, and on May 20 this year, less than three weeks after the General Election, he followed up on his complaints, announcing that there would be a judge-led inquiry into British complicity in torture.
On Tuesday, the Guardian reported that David Cameron and William Hague were “understood to have agreed the terms of a judge-led inquiry,” that it is “likely to be held in private,” and that it is “expected to offer compensation” in some cases. Quite how the inquiry will proceed has yet to be established. The Guardian noted that, after Hague’s initial announcement, “his remarks appeared to unsettle the intelligence services and required further discussion” in the PM’s new National Security Council. The Guardian also added, worryingly:
There were reports at the weekend, sourced to the Foreign Office, suggesting that the inquiry would examine only one case — that of Binyam Mohamed — and that Cameron had already concluded that the country’s intelligence agencies were guilty only of errors of omission, not commission.
New report by Human Rights Watch
While the debate continues over the scope of the coalition government’s inquiry, Human Rights Watch issued a new report, “‘No Questions Asked’: Intelligence Cooperation with Countries that Torture,” defining the key elements in questions of complicity in torture as they relate not only to the activities of the British government, but also to Germany and France, and stating, unambiguously:
France, Germany and the United Kingdom — pillars of the European Union and important allies in the fight against terrorism — demonstrate, through policy statements and practice, a willingness (even eagerness) to cooperate with foreign intelligence services in countries like Uzbekistan and Pakistan — notorious for abusive practices, both in general and against terrorism suspects in particular. They then use foreign torture information for intelligence and policing purposes … and, in some cases … [i]nformation tainted by torture abroad can end up as part of legal proceedings.
The report reveals how the absolute ban on torture — enshrined in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (in force since 1987) — has been, and continues to be circumvented in all three countries, primarily through a “No Questions Asked” policy regarding how the information was extracted.
At the core of these deliberately careful approaches to the use of information derived from torture is the question of what constitutes complicity in torture, and the report’s authors cite two influential sources to demonstrate that the governments involved have crossed a line. Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, has stated that:
[R]eliance on information from torture in another country, even if the information is obtained only for operational purposes, inevitably implies the “recognition of lawfulness” of such practices and therefore triggers the application of principles of State responsibility. Hence, States that receive information obtained through torture or inhuman and degrading treatment are complicit in the commission of internationally wrongful acts. Such involvement is also irreconcilable with the obligation erga omnes of States to cooperate in the eradication of torture (PDF, para. 55).
In addition, during an examination of the definition of complicity in torture abroad (para. 42), the UK Parliament’s Joint Human Rights Committee (JCHR) decided that:
Systematic, regular receipt of information obtained under torture is … capable of amounting to “aid or assistance” in maintaining the situation created by other States’ serious breaches of the peremptory norm prohibiting torture … [T]he practice creates a market for the information produced by torture. As such, it encourages States which systematically torture to continue to do so.
The JCHR concluded that a “general practice of passively receiving intelligence information which has or may have been obtained under torture” is likely to give rise to state responsibility for complicity in torture.
The countries involved deny these claims, of course. The UK, which, like Germany and France, is a signatory to the UN Convention Against Torture, and, in December 2003, was one of the first countries to ratify the Optional Protocol to the Convention against Torture, which “creates an international system to monitor places of detention worldwide, and a parallel domestic monitoring system in each country that ratifies it,” has been “engaged in an active campaign to encourage worldwide ratification and implementation” of the Optional protocol, but, at the same time, has “pursued a series of counter-terrorism policies that undermine the absolute prohibition on torture and ill-treatment.”
The problem with Memoranda of Understanding
Human Rights Watch opened its criticism of the British government by focusing on a policy relating to domestic terror suspects since the 9/11 attacks. The men in question — around a dozen, initially, from countries including Algeria and Jordan — were seized in the months following the attacks, and held without charge or trial in Belmarsh maximum-security prison until the Law Lords ruled, in December 2004, that such imprisonment — resembling the arbitrary detention in Guantánamo — was illegal. They were then released under strict bail conditions, akin to house arrest, and in recent years, as Cageprisoners explained in depth in a report entitled, “Detention Immorality” (PDF), they and dozens of other men — including British nationals — have been imprisoned again, pending deportation, or held under house arrest on control orders or deportation bail.
However, while the US government set up Guantánamo as an illegal interrogation camp, the British government had no interest in interrogating any of these men, who have never been questioned at all, and was, instead, determined to deport them to their home countries, circumventing the UN Convention Against Torture’s prohibition on returning foreign nationals to countries where there are “substantial grounds for believing that [they] would be in danger of being subjected to torture,” through Memoranda of Understanding.
These are agreements between the British government and the men’s home governments, in which such unlikely figures as Colonel Muammar Gaddafi, Libya’s dictator, claimed that they would treat the men humanely if they were returned. The project has not been entirely successful, as judges intervened to prevent any Libyans from being returned, having concluded that the MoU was untrustworthy, and attempts to deport men to Jordan and to Algeria (which has not even deigned to sign an official MoU), although approved by the Law Lords in February 2009, are currently on appeal to the European Court of Human Rights.
In its criticism of the UK government’s attempts to rely on MoUs instead of prosecuting terror suspects in the UK, Human Rights Watch concluded that the government “has attempted to change European human rights jurisprudence banning returns to the risk of torture and ill-treatment by introducing a balancing test between the alleged threat to national security posed by an individual and the risk of ill-treatment upon return.”
Hidden guidelines and mistaken beliefs
In a further demonstration of its disregard for the UN Convention Against Torture, the British government has cooperated closely with the governments of countries that are regularly implicated in torture practices — primarily Pakistan, but also others, as outlined above. The report explains how the government “staunchly defends the use of information that may have been obtained through torture,” and “has argued for the right to use torture evidence in legal proceedings,” and has thereby “championed a minimalist, and ultimately mistaken interpretation of the Convention against Torture.” The report also notes that, in its most recent review of the UK, the UN Committee Against Torture criticized the government (para. 4(b)) for its “limited acceptance of the applicability of the Convention to the actions of its forces abroad.”
In seeking to understand the extent of British involvement in torture abroad, campaigners are stymied by the government’s refusal to release the guidelines issued to the security services. In June 2009, the Guardian reported that, in January 2002, MI5 and MI6 officers in Afghanistan were told they could not be “party” to torture and must not “be seen to condone it,” but that because prisoners were “not within our custody or control, the law does not require you to intervene to prevent this.”
Following the Abu Ghraib scandal in April 2004, the guidelines were rewritten, but although Prime Minister Gordon Brown stated in March 2009 that these guidelines would be released, he left office without doing so. In a sign that the new government may be less open than it has suggested, attempts by Reprieve to launch a judicial review of the guidelines were quashed on Tuesday after the government stepped in at the last minute with a claim that new guidelines would be published “very shortly,” just after Mr. Justice Collins had stated that, if the allegations about how British agents interrogated prisoners held overseas were true, they “indicated that there may well have been complicity in acts of torture.”
Despite this, what is known all too clearly is that the British government has stated openly that it has no problem accepting information derived from torture in an operational sense, even though such information is inherently unreliable (and its use contributes to a tolerance, if not an encouragement, of the use of torture by other countries). The report cites a strategy document, “CONTEST II,” which explicitly states that foreign intelligence services, “rarely volunteer the circumstances” in which prisoners are held, but even “[i]f it is established that material has been obtained from a detainee by torture,” it “may still be used to investigate and to stop terrorist attacks,” although it “would not be admissible in criminal or civil legal proceedings in the UK.”
Moreover, as I explained in an article last April, the Foreign and Commonwealth Office (FCO) essentially reprised this argument in its 2008 annual report on human rights, issued in March 2009 (PDF, p. 15). After stating, “The use of intelligence possibly derived through torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it,” the report’s authors concluded, “Where there is intelligence that bears on threats to life, we cannot reject it out of hand.”
In its 2009 human rights report, issued in March this year (PDF, p. 48), the FCO maintains its dangerously conflicted approach. After stating that “we must work with intelligence and security services overseas,” the report adds, “Some of them share our standards and laws while others do not. But we cannot afford the luxury of only dealing with those that do. The intelligence we get from others saves British lives.” The FCO also moves from a defense of the passive acceptance of torture-derived information to one in which it attempts to defend its cooperation with the torture regimes of Pakistan and elsewhere:
Whether sharing information [with foreign intelligence and security agencies], which might lead to the detention of people who could pose a threat to our national security, passing questions to be put to detainees, or participating in interviews of them, we do all we can to minimize, and where possible, avoid the risk that the people in question are mistreated by those holding them. However, there are times when we cannot reduce the risk to zero … Ultimately it is for Ministers to balance the risk of mistreatment against the national security needs and make a judgment.
This prompted Human Rights Watch to state that “[t]he complicity of UK agents in individual cases of abuse sends a damaging message to Pakistan that torture is acceptable in the context of interrogating terrorism suspects,” adding that, without attempts to “make genuine enquiries about the circumstances in which detainees are interrogated,” it also “sends a clear message to the authorities in Pakistan that the UK is indifferent about the torture of terrorism suspects in its custody.”
The Law Lords on thin ice
In seeking to justify its passive receipt — and its active solicitation — of torture-derived information, and its assertion that such material may be used operationally, the government appears to have taken comfort from the Law Lords, in a ruling in 2005 (A and Others vs. Secretary of State for the Home Department), in which Lord Nicholls of Birkenhead, representing the majority view, claimed, “It is one thing for tainted information to be used by the executive when making operational decisions or by the police when exercising their investigatory powers, including powers of arrest,” but maintained that it was not appropriate for such information to be used in judicial proceedings, stating that, in a courtroom, “repugnance to torture demands that proof of facts should be found in more acceptable sources than information extracted by torture.”
The problem with the ruling — beyond the Lords’ inability to realize that they had failed to ensure that the use of torture is prevented at all times — lay with the notion that “the passive receipt and use of intelligence from countries with poor records on torture” is in any way acceptable. Human Rights Watch noted that both the JCHR and the House of Commons Foreign Affairs Committee disagreed. The committees focused in particular on claims made by Craig Murray, the former ambassador to Uzbekistan, who has stated (para. 14) that, when he informed his superiors that “the UK routinely and knowingly accepted information obtained under torture by Uzbek security services,” the chief legal advisor in the Foreign and Commonwealth Office “assured him that the Convention against Torture did not prohibit the receipt of information obtained under torture.”
The JCHR found that the “systematic receipt” of information derived, or probably derived from torture was “tantamount to complicity in torture and creates a market for torture,” and the FAC stated (PDF) that the use of “evidence which may have been obtained under torture on a regular basis, especially where it is not clear that protestations about mistreatment have elicited any change in behaviour by foreign intelligence services, could be construed as complicity in such behaviour.” Human Rights Watch agreed, stating that “uncritical use of such material breaches the UK’s duty to take positive steps to prevent torture wherever and by whomever committed,” and that it “may amount to complicity in torture.”
Moreover, Human Rights Watch explained that, although the ruling in A and Others was supposed to have “definitively affirmed the prohibition on the use of torture evidence in British judicial proceedings,” overturning a shocking ruling in the Court of Appeal in 2004, in which judges ruled that torture evidence could be used provided that the UK had “neither procured nor connived at” the torture, in reality it is all but impossible for torture-derived information to be challenged.
The majority of the Lords in A and Others thought they had compelled the government to exclude evidence when it is established “by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities” that it was obtained under torture, but as Human Rights Watch noted, it succeeded only in shifting the burden of proof onto the accused, setting “what may be an impossible standard to meet given the difficulties in ascertaining the precise circumstances in which intelligence information was obtained.”
Moreover, in the court where this material is used — SIAC, the Special Immigration Appeals Commission — matters relating to the proposed deportation of foreign terror suspects are conducted in closed sessions, with the accused represented by special advocates who are prohibited from discussing anything with their clients. This ludicrous and unjust situation prompted Lord Bingham, in a dissenting opinion, to note, “it is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet.”
In the second part of this article, I will focus on Human Rights Watch’s analysis of how both Germany and France employ their own devious methods to use information derived through the use of torture. These are generally less well-known than the British story, but no less disturbing. As for the UK, Human Rights Watch recommends that the Intelligence and Security Committee (ISC), which examines the budget, administration and policy of the security services, needs replacing with a body that has genuine power, because, at present, “the security services and the responsible ministers (the Foreign Secretary in the case of MI6 and Home Secretary in the case of MI5) can refuse to provide to the ISC sensitive information … and information supplied by another government if that government does not consent.”
Human Rights Watch therefore concludes that what is required is “an independent, public judicial inquiry into all cases in which there are allegations of British government complicity, participation or knowledge of torture or cruel, inhuman or degrading treatment of detainees.” This is certainly what is required, and we can only hope that David Cameron was not letting a particularly cynical cat out of the bag by concluding, before an inquiry has even started, that the intelligence agencies “were guilty only of errors of omission, not commission.”
Originally published on Cageprisoners.
Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.