Torture, Secrecy and the British State

[Peter Presland]

More on the subject of post #8 in the Guardian today:

The government is facing pressure on two fronts to overhaul the secret interrogation policy, drawn up by the Labour administration, that led to terrorism suspects being detained illegally and tortured in the so-called war on terror.
In the courts, the legal charity Reprieve is pressing for a judicial review of the legality of the guidance given to MI5 and MI6 officers questioning suspects held overseas since the al-Qaida attacks of September 2001, arguing that it sanctions complicity in torture.
A high court judge yesterday ruled that the guidance may well be unlawful, but said such a review was not necessary after hearing that the government would be rewriting and publishing the policy in the near future. Reprieve is considering whether to appeal against that decision, arguing that it exposes detainees to continuing mistreatment.
Meanwhile, Human Rights Watch publishes a report today that points to the "embarrassing and possibly illegal contents" of that secret policy. The New York-based group adds that although the UK has claimed the eradication of torture to be a foreign policy goal, it has "pursued a series of counterterrorism policies that undermine the absolute prohibition on torture". The complicity of UK agents in torture in Pakistan, in particular, it says, "sends a clear message to the authorities in Pakistan that the UK is indifferent about the torture of terrorism suspects in its custody".
In the absence of a judicial review into the UK's involvement in torture and rendition in recent years – or any date for such an inquiry – the government is fast becoming entangled in litigation that began long before it took power.
At the high court, Mr Justice Collins said the allegations about the manner in which UK intelligence officers interrogated detainees held overseas, if true, "indicated that there may well have been complicity in acts of torture". He added: "It hasn't been suggested by [the government] that any actions taken by the relevant personnel have been taken in breach of any guidelines; accordingly, the inference could be drawn that the guidance was ... unlawful."
He decided against authorising a review of the legality of the guidelines after James Eadie QC, for the government, said new guidance was "immediately prospective". Eadie added: "This government is committed to publishing the consolidated guidance very shortly."
Richard Hermer QC, for Reprieve, said there was no doubt there had been complicity in torture. "If you're receiving intelligence from a man who you know the previous day had electrodes attached to his testicles, then you are taking advantage of that torture and you are reaping its fruits."
The interrogation policy was drawn up in two phases. 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 as long as the victim was "not within our custody or control" they were not obliged to halt it. One MI5 officer who acted in compliance with this guidance while questioning Binyam Mohamed in Karachi in May 2002 is now being investigated by Scotland Yard.
The policy was rewritten in May 2004 after the release of photographs showing prisoners being abused at Abu Ghraib prison in Iraq. The details of the revision are being kept secret. David Miliband, the former foreign secretary, indicated while in office its publication would "give succour" to the nation's enemies. A number of detainees have said they were tortured after 2004 and there is clear evidence of British complicity in their mistreatment. Today one of these individuals is seeking leave to appeal against his subsequent conviction for terrorism offences, arguing that his trial should not have gone ahead because of the UK's role in his torture in Pakistan. The government is attempting to use in-camera court procedure in a manner that would conceal from the public the role that both MI5 and MI6, and Manchester police, are said to have played in the events that led to him being beaten, whipped and having his fingernails ripped out.
In its report, Human Rights Watch is critical of the Intelligence and Security Committee (ISC), the group of MPs and peers that is supposed to oversee MI5 and MI6. It says: "The limitations on the ISC's mandate and the unwillingness of the government to submit itself to effective parliamentary scrutiny, underscore the need for 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."

Nothing about the SIS's being required to release the interrogation guidelines though.

Press release for The 'Human Rights Watch' report referred to in the Guardian report:

Don’t Accept Torture Intelligence From Abusive Countries

June 28, 2010

(London) - France, Germany, and the United Kingdom use foreign intelligence obtained under torture in the fight against terrorism, Human Rights Watch said in a report released today.
The 62-page report, "No Questions Asked: Intelligence Cooperation with Countries that Torture," analyzes the ongoing cooperation by the governments of France, Germany, and the United Kingdom with foreign intelligence services in countries that routinely use torture. The three governments use the resulting foreign torture information for intelligence and policing purposes. Torture is prohibited under international law, with no exceptions allowed.
"Berlin, Paris, and London should be working to eradicate torture, not relying on foreign torture intelligence," said Judith Sunderland, senior Western Europe researcher at Human Rights Watch. "Taking information from torturers is illegal and just plain wrong."
The intelligence services in France, Germany, and the UK do not have detailed instructions on how to assess and follow-up on information coming from countries that torture, Human Rights Watch said. Parliamentary oversight in each country is also inadequate.
Intelligence services in all three countries claim it is impossible to know the sources and methods used to acquire shared information. But officials in the UK and Germany have made public statements indicating that they believe it is sometimes acceptable to use foreign intelligence even if it is obtained under torture. Such statements send the wrong message to abusive governments, Human Rights Watch said.
Information tainted by torture has also been used in criminal and other proceedings in France and Germany, Human Rights Watch said, despite both international and domestic rules banning the use of torture evidence in any proceedings.
The report cites the case of Djamel Beghal, whose statements made under ill-treatment in the United Arab Emirates were used against him in a French court, where he was on trial for plotting a terrorist attack. In another example, the alleged confession of a man known as Abu Attiya under ill-treatment in Jordan was used against terrorism suspects on trial in France. German courts have allowed as evidence the summaries of interrogations of three high-profile terrorism suspects in incommunicado US detention, as well as evidence collected as result of statements made by Aleem Nasir, a Pakistan-born German citizen suspected of terrorist ties, while in the custody of the notorious Pakistani intelligence services.
Human Rights Watch said that in practice, overseas torture material can end up being used in court because the burden falls on defendants to prove it was obtained under torture, a nearly impossible task.
"The rules meant to exclude torture from the courts don't work," Sunderland said. "It should be up to prosecutors to prove that evidence originating in countries that torture wasn't obtained through abuse."
The use of torture intelligence in the fight against terrorism by France, Germany, and the UK damages the credibility of the European Union, Human Rights Watch said. The actual practices of these leading EU states contradict the EU's anti-torture guidelines, which make eradicating torture and ill-treatment a priority in its relations with other countries. Over the long-term, abuses in the name of countering terrorism also feed the grievances that fuel radicalization and recruitment to terrorism, Human Rights Watch said.
The global ban on torture under international law imposes clear obligations: states must never torture or be complicit in torture, and they must work toward the prevention and eradication of torture worldwide. States must repudiate torture in their own territories, and never encourage or condone torture anywhere in the world. Cross-border intelligence cooperation is vital in the fight against international terrorism, but it cannot, under international law, operate in contradiction to these obligations.
France, Germany, and the UK can engage in necessary intelligence cooperation without undermining the global torture ban, Human Rights Watch said. To do so, they must make genuine inquiries of countries that provide information to determine whether torture was used to obtain it and to determine what steps the authorities have taken to hold to account those responsible for any abuse that comes to light.
Cooperation should be suspended in cases where there are grounds to believe torture or ill-treatment were used to obtain shared information. There is also a need for tighter parliamentary oversight of intelligence cooperation, and stronger rules to prevent torture material from entering the judicial process.
"Europe has been forced to confront its complicity in US counterterrorism abuses," Sunderland said. "It is time for France, Germany, and the UK to take responsibility for their own role in third-party abuse, and to ensure that their intelligence cooperation isn't perpetuating abuse."
Human Rights Watch called on the governments of France, Germany, and the United Kingdom to:

• Publically repudiate reliance on intelligence material obtained from third countries through the use of torture or cruel, inhuman, or degrading treatment;
  
• Reaffirm the absolute prohibition on the use of torture evidence in any kind of proceeding;
  
• Clarify procedure rules on excluding torture evidence in criminal and civil proceedings to make clear that where an allegation that a statement was made under torture is raised, the burden of proof is on the state to show that it was not made under torture;
  
• Ensure that national intelligence services have clear guidance on appropriate engagement with partner services with known records of torture, and that intelligence cooperation arrangements with third countries include clear human rights stipulations, including the duty to discontinue cooperation in an individual case if credible allegations of torture come to light;
  
• Strengthen parliamentary oversight over national intelligence services; and
  
• Ensure that any form of complicity in torture is a criminal offense in domestic law, and that state agents who are complicit in torture anywhere in the world are prosecuted, including those who systematically receive information from countries and agencies known to practice torture.
  

Full report here