After a full year, the British Government still refuses to reveal its ‘Torture Policy’– reneging on assurances that it would be published before today’s Parliamentary debate on torture

March 18, 2010

On March 18 2009, Prime Minister Gordon Brown promised to publish the new ‘Torture Policy’ – guidance for intelligence officers who find evidence of torture in the field.

The policy will replace a previous version that has been in place since 2004 (which will remain secret, presumably because there is something in it that the government does not wish the public to know).

It is now one year later and this still has not been done.

Critically, this presumably means that for a full year our agents in the field have been operating under the 2004 policy that is, by implication, either inadequate or illegal.

Reprieve director Clive Stafford Smith Said:

“The government has collapsed the scrum again, because they just don’t want to take part in the process. It is time for the referee to award a penalty. Why does it take more than a year to change a torture policy that should be perfectly simple – we never do it, we are not complicit in it, and when we learn that someone has been tortured we do as the law requires and report it. Meanwhile, because of this official sloth, British agents continue to operate under the 2004 torture policy which is presumptively either inappropriate or illegal.”/p>

1) THE DELAY

The Intelligence and Security Committee (ISC), the body charged with policing the Security and Intelligence Services, has complained publicly about the delay. As of September 2009, the website carried the following message concerning the Prime Minister’s failure to fulfil his promise made eight months before:

16 September 2009: On 18 March 2009 the Prime Minister made a Written Ministerial Statement on Detainees. He said:

“we will publish our guidance to intelligence officers and service personnel about the standards that we apply during the detention and interviewing of detainees overseas once it has been consolidated and reviewed by the Intelligence and Security Committee. It is right that Parliament and the public should know what those involved in interviewing detainees can and cannot do. This will put beyond doubt the terms under which our agencies and service personnel operate…. In order to ensure that our systems are robust and to be certain that any lessons have been understood, I have asked the Intelligence and Security Committee to consider any new developments and relevant information, since their 2005 Report on Detention (Cm 6469) and their 2007 Report on Rendition (Cm 7171), building on the follow-up work that they have already undertaken.”

By way of clarification, the Cabinet Office confirmed that they would consolidate the guidance before submission to us.

Despite repeated requests, this guidance has still not been provided by the Cabinet Office. Therefore we are not yet able to begin our investigation.

See http://www.cabinetoffice.gov.uk/intelligence.aspx

Eventually, in November 2009, the Cabinet Office got the draft to the ISC, which turned it around. It has now been back with the government for several weeks.

2) THE DENIALS

The government position apparently remains as stated by ISC Chairman Dr Kim Howells on Radio 4’s Today Programme on February 12, 2010, where he said that he had seen the classified evidence and there was nothing to indicate that SIS had been complicit in torture in any way:

Well I…I…I don’t know what the Master of the Rolls is is doing or playing at. He sometimes chooses to put…uh some information in his reports sometimes he says he doesn’t. And and the role of the judiciary is something that I can’t account for that’s something they have to defend. But what I’m telling you is that our investigations, completely independent ones, do not uh seem to confirm that the agencies are involved in any way in in torture and in the complicity in torture.

In other words, he and the ISC have prejudged the issue. Why, then, are we bothering to have a police investigation? It is worth noting that in the same interview he said:

I think, I think the most shameful thing of all of this is that the…the agency is being judged before the thing has come to court. Now, now, some of our judges have seen this classified material, others haven’t, reporters certainly haven’t seen it, many lawyers haven’t seen it. We have seen it. And if we felt this was a serious enough charge, we would make sure that the country knew so because we are completely independent of government or anybody else. And I think, I think, everybody ought to be ware of that that these judgements are being made before proper trials or investigations have taken place.

Is it equally “shameful” for Dr Howells to be prejudging the issues?

3) THE UK COURT JUDGMENT

It is not clear how Dr Howells explains the Government’s disagreement with five UK judges in the case of Binyam Mohamed who have seen the classified evidence and found – latterly without dispute from the Government – that British officials were, indeed, mixed up in this wrongdoing. Neither is it clear what makes Dr Howell’s judgment more valid and independent than that of Lord Neuberger, the Master of the Rolls, who concluded:

it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that ‘they operated in a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training’ … indeed, they ‘denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government.’ Yet, in this case, that does not seem to have been true: As the evidence showed, some Security Service officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. *** Regrettably, but inevitably, this must raise the question of whether any statement in the certificates on the issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue of whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. *** the Security Services have an interest in the suppression of such information.

Mohamed Appellate Judgment, at para. 168.

3) THE US COURT JUDGMENT

In downplaying Lord Neuberger’s comment, the Government is ignoring the decision of the three appeals court judges, quoting liberally from U.S. District Court Judge Gladys Kessler’s Memorandum Opinion in the US District Court for the District of Columbia in Farhi Saeed Bin Mohamed v Barak Obama (Civil Action No 05-1347 (GK)): 

He [Mr Mohamed] was, however, subjected to torture. In Farhi Saeed Bin Mohamed, it is publicly recorded that “the Government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment (p58)…the account in Binyam Mohamed’s diary bears several indicia of reliability (p61).” 

Note is taken of his “willingness to test the truth of his version of events in both the courts of law as well as the court of public opinion” (p62). 

Towards the end of its judgment two specific matters are recorded:<

“(a)…[Mr Mohamed’s] trauma lasted for 2 long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.”(p64

“(b) In this case, even though the identity of the individual interrogator changed (from nameless Pakistanis, to Moroccans, to Americans, and to special agent (the identity is redacted)), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States (p68)…The court finds that [Mr Mohamed’s] will was overborne by his lengthy prior torture, and therefore his confessions to special agent…do not represent reliable evidence to detain petitioner”.

Mohammed Appellate Judgment ¶23.

“There is no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities. We are no longer dealing with the allegations of torture and ill-treatment: they have been established in the judgment of the court, publicly revealed by the judicial processes within the USA itself.”

Mohammed Appellate Judgment ¶55

Mohammed Appellate Judgment ¶138 (“in proceedings in which one of the parties was the US Government, a US Judge has found as a fact in an open judgment that Mr Mohamed’s evidence as to the mistreatment he suffered at the behest of US officials in Pakistan (and indeed in Morocco and Afghanistan) was true.”)

We know, then, that in Pakistan – before being rendered to Morocco – Binyam Mohamed was additionally: threatened with summary execution (with a gun pressed into his body), strung up by his wrists in the strappado position (as the Spanish Inquisition called it) and frequently beaten. This is all conceded, so presumably the Government does not contest it.

4) CLUES AS TO PREVIOUS BRITISH ‘TORTURE POLICY’

It seems highly likely that Agent B, the witness in Binyam Mohamed’s case, was also the person who witnessed the abuse of a prisoner discussed in the 2005 ISC report. The agent reported the abuse to London on January 10, 2002, asking what he should do. London wrote back saying that the agent was under no legal obligation to do anything because the prisoner was not in UK custody. The precise quote is as follows:

“With regard to the status of the prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protection. You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given that they are not within our custody or control, the law does not require you to intervene to prevent this.”

2005 ISC report at para. 47.

5) QUESTIONS FOR THE BRITISH GOVERNMENT

1) Does the Government continue to contend that the above advice complies with the law?

2) Can the Government confirm whether this advice was ratified prior to sending by both Jonathan Evans (then head of counterterrorism at MI5) and Eliza Manning-Bullingham (then Director General)?

3) When was it first shown to a Minister? Who was that Minister?

4) If this complaint was made by Witness B, does it not show that Witness B was actually a whistleblower, and the fault lies with those higher up who instructed him?

5) When was this advice changed and how?

6) Does the Government agree that to stand idly by while someone (very possibly a British citizen) is being tortured by a foreign agency is not just illegal, but immoral?

For more information please contact Katherine O’Shea at Reprieve’s Press Office katherine.oshea@reprieve.org.uk 020 7427 1099/ 07931592674. 

Notes for Editors:

REPRIEVE

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA. 

Reprieve’s current casework involves representing 33 prisoners in the US prison at Guantánamo Bay, working on behalf of prisoners facing the death penalty, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’ ReprievePO Box 52742London EC4P 4WSTel: 020 7353 4640Fax: 020 7353 4641Email: info@reprieve.org.ukWebsite: www.reprieve.org.uk Reprieve is a charitable company limited by guarantee; Registered Charity No. 1114900 Registered Company No. 5777831 (England) Registered Office 2-6 Cannon Street London EC4M 6YH; Chair: Lord Bingham; Patrons: Alan Bennett, Julie Christie, Martha Lane Fox, Gordon Roddick, Jon Snow, Marina WarnerKatherine O’Shea ReprieveTel: 020 7427 1099Mob: 07931592674

Reprieve delivers justice and saves lives, from death row to Guantánamo Bay.

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