Intelligence services commissioner to lead torture inquiry

06 July 2010

The Prime Minister today announced an inquiry into concerns about collusion in torture by the British authorities during the War on Terror. He also announced the publication of guidance to the intelligence services on the interrogation and treatment of detainees held overseas.

These concerns go back a number of years and relate to the treatment of people held at various times by the CIA (or with CIA involvement) in Guantanamo Bay or in third countries such as Pakistan, Afghanistan and Morocco. A number of legal cases on both sides of the Atlantic now show that British Government Departments and Security Services co-operated in the detention and questioning of suspects who were tortured elsewhere.

A combination of protracted litigation (defended tooth and nail by the previous Government) and embarrassing newspaper revelations have reduced public trust and security service morale – a situation unworthy of a mature democracy true to its values and united against security threats. Some securocrats and politicians have even attempted to blame the human rights lawyers and journalists who uncovered the scandal rather than serious breaches of law and decency.

Whilst Liberty has spent nearly five years calling for a public inquiry into this shaming and counter-productive episode, today’s Prime Ministerial statement leaves room for considerable anxiety about the adequacy of the new Government’s proposed model.

Shami Chakrabarti, Director of Liberty, said:

“An inquiry into British complicity in torture is welcome and overdue but this announcement leaves room for fears that Government is bending towards the Security establishment. They wouldn’t be in this mess but for all the excuses for secret stitch-ups instead of open justice. This inquiry can only be credible with the broadest remit, the most public proceedings possible and by full engagement with victims, witnesses and lawyers. Any attempt to exempt intelligence from legal scrutiny is an attempt to exempt the security services from the rule of law.”

- The inquiry is to be chaired by Sir Peter Gibson. Whilst a former senior judge, his continuing role as Intelligence Services Commissioner since 2006 (not due to end until 2012) will hardly give torture victims and the wider public the sense of a fresh pair of eyes on a sore that has festered in the shadows for so long. He has already been responsible for security service scrutiny for a number of years.

- There is still a lack of clarity about the Inquiry’s remit and powers to require witnesses, including former Ministers, to attend and submit to questioning. Concerns about the cost and length of a judicial inquiry no doubt stem from the recent Saville Inquiry into Bloody Sunday. However that experience was the direct result of an inadequate Widgery Report so many years ago. Any attempts to comfort the Security Services with gentle and narrow scrutiny now, will only lead to further and protracted litigation well into the future.

- Arguments that a judicial inquiry would interfere with civil proceedings do not stand up to legal scrutiny. There are no juries in these civil claims and the Government cannot expect to be protected from any new evidence that emerges in a public inquiry. As for outstanding criminal investigations – to the best of our knowledge, no arrests have ever been made or charges brought. Liberty first asked the police to investigate in November 2005. Unusually, in October 2008 the last Government asked the former Attorney General to look into the allegations made in relation to Binyam Mohamed and she in turn referred the allegations to the Metropolitan Police in March 2009. The public interest into such grave matters cannot be postponed indefinitely whilst various authorities talk to themselves with no end in sight.

- Suggestions that a Green Paper next year might pave the way for legislation barring the British courts from looking at foreign intelligence are a grave cause for concern. Contact: Liberty’s press office on 020 7378 3656 or 07973 831 128

1. Amongst other comments in his various reports into security matters, Sir Peter Gibson has expressed year-on-year support for the renewal of the control order regime (allowing indefinite punishment without charge or trial for terror suspects) so much criticised by the senior judiciary and coalition parties in opposition.

2. The other two panel members are Janet Paraskeva DBE (former Civil Service Commissioner) and Peter Riddell (formerly of the Times newspaper).

3. Timeline of events:

· The Guardian newspaper revealed on 6 December and 12 September 2005 that airports in Biggin Hill, Birmingham, Bournemouth, Brize Norton, Farnborough, Gatwick, Heathrow, Luton, RAF Mildenhall, Northolt, and Stansted have allowed CIA or CIA-chartered jets to land temporarily. These aircraft had flown into the UK approximately 210 times since 2001.
· Liberty alerted the then Foreign Secretary Jack Straw in November 2005 to its fears that the UK is in breach of domestic and international law by allowing CIA “extraordinary rendition” flights to land and re-fuel in Britain.
· On 30 November 2005, Liberty called on the Police Chief Constables of Bedfordshire, Dorset, Essex, Hampshire, the Metropolitan Police, the Ministry of Defence Police, Suffolk, Sussex, Thames Valley, and West Midlands to conduct an investigation into whether the airports in their regions were being used to transport suspects to countries known to practice torture. In response to Liberty’s request to the police, Greater Manchester Police Chief Constable Michael Todd confirmed on 19 December 2005 that he would look into “extraordinary rendition” flights on behalf of the Association of Chief Police Officers (ACPO.)
· On 26 May 2006, the Parliamentary Joint Committee on Human Rights concluded that the Government was not doing enough to investigate whether UK airports are being used by secret CIA flights involved in the practice of extraordinary rendition.
· On 7 June 2006 the Council of Europe released preliminary findings concluding that CIA flights carrying terror suspects likely to face torture have been given access to UK airspace and airports.
· On 26 June 2006 the Parliamentary Assembly of the Council of Europe (PACE) passed a resolution calling on all member states, including the UK, to pressure the US into ending rendition flights, closing secret prisons and changing their own laws and practices to guarantee the rights of persons captured from, detained in or transported through their states.
· In February 2007 the European Parliament’s temporary commission on extraordinary rendition approved a report accusing EU states of complicity with CIA rendition flights.
· On 21 February 2008, British Foreign Secretary David Miliband admitted that two US extraordinary rendition flights refuelled on Diego Garcia in 2002.· In May 2008, in order to assist his defence against terrorism charges in the US, Binyam Mohamed made an application to the High Court requesting the UK government to disclose documents provided to it by the US government which gave details of his treatment by the US authorities. Mr Mohamed alleged that he had been subjected to torture while in US custody, consisting of genital mutilation, deprivation of sleep and food, being held in stress positions for days at a time, and being forced to listen to loud music and screams of other prisoners while locked in a pitch black cell, all while being forced to implicate himself and others in terrorist plots against the US.

o The High Court ruled that Mr Mohamed was entitled to the documents because they concerned wrongdoing by a third party in which the UK government had been involved. Binyam Mohamed's treatment occurred at a time when the UK intelligence services had been involved in questioning him. The UK government then issued "public interest immunity" (PII) certificates claiming that disclosure of the documents, and seven paragraphs of the High Court's judgment which summarised them, would not be in the public interest. Mr Mohamed challenged this assessment and the matter was considered by the High Court.
o Binyam Mohamed subsequently obtained the documents from the US authorities and charges against him in the US were ultimately dropped. However the UK government continued to resist publication of the 7 paragraphs of the High Court's judgment because it claimed that it would breach the diplomatic rule that intelligence provided by one government to another should not be disclosed without the consent of the government which provided it ("the control principle"). It was said that the consequence of this was that the Bush administration would reduce its co-operation with the UK intelligence services.
o The High Court accepted the UK government's concerns and decided not to publish the seven paragraphs.Subsequently the High Court agreed to reopen the case after it materialised that the Obama administration may not adopt the same stance as the Bush administration had done. The Court ruled that there was no proper basis for the UK government's assertion that the US government would react in the way that was claimed. It therefore ruled that the seven paragraphs should be published. The UK government appealed this decision and as a result the publication of the seven paragraphs was postponed pending the appeal.
o Meanwhile a US court ruled in an application for habeas corpus by a Guantanamo Bay detainee that Binyam Mohamed had been treated in the way he alleged (i.e. as summarised in the seven paragraphs). Despite this the UK government continued to argue that the seven paragraphs should not be published.
o The Court of Appeal decided on 10 February 2010 that the seven paragraphs should be published. On receiving the embargoed draft judgment of the Court of Appeal, the government’s counsel made the unusual request in a letter to the Master of the Rolls to delete one paragraph of his judgment. On 26 February 2010 after receiving further submissions on the issue, the Master of the Rolls rejected the government’s request and published the disputed paragraph with only minor alterations. The 7 missing paragraphs from original High Court ruling summarise the UK authorities' knowledge of Binyam Mohammed's torture whilst in US custody and read as follows:

(IV) It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer(V) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.
(VI) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.
(VII) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled during his interviews;
(VIII) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.
(IX) We regret to have to conclude that the reports provided to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.
(X) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment of BM by the United States authorities.

o Prior to these developments in the case of Binyam Mohamed, on the 23 October 2008 the then Home Secretary, Rt Hon Jacqui Smith MP, ‘referred’ the issue of criminal wrongdoing in the case of Binyam Mohamed to the then Attorney-General, Baroness Scotland. On 26 March 2009 the Attorney-General ‘invited’ the Commissioner of the Metropolitan police to commence an investigation into the allegations made in relation to Binyam Mohamed. There have been no further public announcements about this police investigation.

· In separate litigation, Binyam Mohamed, Bisher al-Rawi, Jamil el Banna, Richard Belmar, Omar Deghayes and Martin Mubanga (all former Guantanamo Bay detainees) have brought civil claims for damages against the UK government for involvement in their ill treatment and unlawful detention by the US authorities. The previous government asked the High Court to adopt a “closed material procedure” which would involve the claimants and their lawyers being excluded from the hearing of the case, and the issuing of a “closed judgment” which they would not be entitled to see. On 18 November 2009 the High Court ruled that it had the power to adopt such a procedure. The claimants appealed that ruling. On 4 May 2010 the Court of Appeal ruled that Court would not adopt the ‘secret procedure’. Lord Neuberger, Master of the Rolls, said that: “We should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties … to order a closed material procedure in relation to the trial of an ordinary civil claim… The primary reason for our conclusion is that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. A litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.”