Torture: time for transparency
The British government must be honest about its policies towards prisoners in the war on terror, says Louise Christian
30 Nov 09

The British government must be honest about its policies towards prisoners in the war on terror, says Louise Christian

Although two public inquiries are taking place into the abuse of Iraqi prisoners by British soldiers and there is also a (very limited) inquiry into the Iraq war by Sir John Chilcot, there is no such inquiry into allegations of complicity in torture by the British security services post 9/11.

This week saw the release by Human Rights Watch of a searing expose of evidence against the British government and its alleged complicity in the torture of people held in Pakistan suspected of terrorism. The report, Cruel Britannia, is based on evidence collected by Ali Dayan Hasan, a senior HRW researcher, who interviewed not only suspects and their lawyers but also members of the Pakistani ISI agency who were involved in the torture. It corroborated and provided further detail for the investigative reporting on torture of the Guardian’s Ian Cobain, who recently won the Paul Foot Award for investigative journalism. Human Rights Watch now recommends that there be a full independent public inquiry into UK complicity in torture.

Binyam Mohammed, a former Guantanamo detainee, is involved in a long running judicial review about whether the British government should disclose five paragraphs of a document said to confirm US and UK knowledge of his torture in Pakistan and Morocco. The government’s contention that disclosing this would breach national security has been dismissed by the High Court but the government is now appealing. There appears to be dispute about whether upsetting the US government can be a breach of national security.

Meanwhile there is a police investigation after a referral by the Attorney General into possible criminal offences by security service personnel in Binyam Mohammed’s case and that of another unnamed person.

Seven former Guantanamo detainees including Binyam Mohammed and my client Martin Mubanga have also brought actions for damages against the security services, the Attorney General, the Foreign Office and the Home Office, alleging complicity in torture and extraordinary rendition. Last week in an astonishing judgment Mr Justice Silber ruled that in principle the government may be entitled to rely on secret defences and secret evidence which would not be disclosed to the claimants. This would result in the whole adversarial process being subverted, with the government being allowed to have secret hearings with the judge and special advocates not allowed to communicate with the claimants. This judgment is now being appealed. Government lawyers have also filed witness evidence claiming that there are 250,000 documents in their possession relating to the action. It appears however that they are not proposing to give any of the important documents to the claimants’ lawyers or open them to public scrutiny.

In response to the growing number of detailed allegations in the public arena, the Foreign Secretary David Miliband and the ex-Prime Minister Tony Blair merely repeat the mantra that the British government does not condone torture. In March 2009, Gordon Brown announced that the guidelines on interrogating terror suspects would be rewritten and published. However David Miliband later went back on the promise to publish saying this “would give succour to our enemies”.

Written instructions to security services interrogating suspects in Afghanistan after 9/11 disclosed earlier this year, while saying they should do nothing to “condone” torture, in fact made it clear that the UK government sanctions turning a blind eye. The instructions claimed (with dubious legality let alone morality) that there was no obligation to intervene even when interrogators are aware of torture.

The secrecy surrounding this whole issue needs to be lifted and proper public accountability established. If the guidance on interrogating suspects who are believed to be undergoing torture has been rewritten can’t we now know what the previous guidance was and what exactly happened? As Human Rights Watch have pointed out there may well be an obligation to have a public inquiry in the face of so much evidence that there has been complicity in a breach of Article 3 of the Human Rights Act prohibiting inhuman and degrading treatment. Human Rights Watch describes the position of the British government as “legally, morally and politically invidious”. Only a transparent response by the government will dispel the cloud over its conduct.

Louise Christian is a solicitor who is acting for Martin Mubanga in a High Court action against the government and the security services