Payments to ex-Guantanamo detainees must pave way for a full and open inquiry into British complicity in torture

16 November 2010

In response to the Lord Chancellor’s statement about compensation payments to ex-Guantanamo detainees, Liberty renewed calls for the Gibson inquiry into torture allegations to deliver open justice.

Shami Chakrabarti, Director of Liberty, said:

"This settlement could bring a broader inquiry and the end of the torture scandal a little bit closer. But if the slow morale-sapping bleed of revelation and litigation is to end, the Gibson process must have all the power and authority of a court. It must distinguish between national security and embarrassment; between clean up and cover up."

Claims have been settled with 16 former detainees.  These include 12 cases that were before the courts and a further four who would have come before the courts.

Contact: Liberty’s press office on 020 7378 3677 or 07973 831 128

Notes to Editors

  1. The inquiry into British complicity in torture is to be chaired by Sir Peter Gibson. A former senior judge, he has held the position of Intelligence Services Commissioner since 2006 (not due to end until 2012). The other two panel members are Janet Paraskeva DBE (former Civil Service Commissioner) and Peter Riddell (formerly of the Times newspaper).

 

  1. Timeline of torture allegations
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.

 

  • 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) 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.”  Following this Court of Appeal judgment the new coalition Government entered into settlement negotiations with the 12 claimants and 4 others.  On 16 November 2010 the Government announced that all 16 claims had been settled and were subject to a legally binding confidentially agreement.

 

3.     Read the correspondence between Liberty and different Foreign Secretaries about 'torture
        flights' and the UK.