Lifting the lid on Torture
By Michael Faulkner – 21 February 2010
“I can say quite clearly that the security service does not
torture people, nor do we collude in torture or solicit others to torture
people on our behalf.” That was Jonathan Evans, head of MI5 last October. Tony
Blair always repeated the same mantra in chorus with G.W. Bush and Condoleezza
Rice whenever questions were raised about the behavior of British forces and
the intelligence services engaged in “the war on terror.” Foreign Secretary
David Miliband echoes them. Only the most gullible believe what the government
says and their attempts to suppress evidence of complicity by MI5 in the torture
of British citizens and residents and collusion with the CIA in cases of
“extraordinary rendition” is one of the factors contributing to the contempt
felt by so many for this government.
It is gratifying therefore to witness the government’s discomfiture
at the February 10th ruling by the court of appeal in the case of Binyam
Mohamed. The ruling requires the Foreign Office to publish a seven paragraph
summary of 42 classified CIA documents containing evidence of MI5 complicity in
the rendition and torture of Mohamed. Foreign Secretary, David Miliband, has
for years been engaged in a desperate attempt to prevent the publication of
this evidence. In December of last year he appealed against a High Court ruling
that it must be disclosed. His argument throughout has been – and
continues to be – that disclosure of information imparted to the British security
and intelligence services by the CIA would endanger this country’s national
security as it would be a betrayal of the trust between the U.K. and our
closest ally, the U.S. The same argument was used a few years ago by Tony Blair
to justify his closure of a Serious Fraud Office investigation of the armaments
manufacturer BAE Systems who were engaged in corrupt financial dealings with
the Saudi government. If the investigation proceeded, it was claimed, the
Saudis would withhold from our intelligence services vital information about
terrorism which would increase the threat to our citizens. Deep embarrassment
to government through exposure of corporate corruption or illegal activity by
intelligence agencies implicated in the torture of British residents, must be
avoided at all costs. It has always been assumed that the best way to prevent
such activities being exposed is to claim that their exposure would be against
the “national interest.” The courts, it was assumed, would comply. This can no
longer be taken for granted.
The facts in the Binyam Mohamed case are fairly well-known. An
Ethiopian national, resident in Britain, he was captured by the U.S. in
Pakistan in 2002 and held on suspicion of links to Al-Qaeda. He spent seven years
in custody, four of them at Guantanamo Bay. He claims to have been tortured in Pakistan, Morocco and
Afghanistan between 2002 and 2004. In Morocco he says he was tortured over a
period of eighteen months. “The very worst moment came when I realized in
Morocco that the people who were torturing me were receiving questions and
material from British intelligence”. He was transferred to an alleged CIA site
in Kabul and secretly rendered to Guantanamo in 2004. While still in Pakistan,
he had been questioned by a British intelligence officer referred to as “John”,
who is now being investigated by the Metropolitan Police for criminal activity
and has given evidence to the appeal court as “witness B”. Eventually, in
October 2008 the U.S. dropped all charges against Mohamed. In February 2009 he
was released from Guantanamo and returned to the U.K.
The seven paragraphs that Miliband has been so determined to
suppress are now in the public domain. From them it is clear that the British
authorities (a) knew that prior to 2002 the U.S. was employing techniques to
extract information from detainees that amounted to torture; (b) that such
techniques, including shackling and sleep deprivation, were used in the case of
Mohamed; (c) that he was threatened with rendition; (d) that MI5 officers were
aware of the extreme psychological stress he was under but did nothing to
prevent it; (e) that the high court judges were very concerned that the MI5
officers knew what had happened to him before they interrogated Mohamed. They pointed out that such
practices had been banned under British law since 1972, with the clear
implication that the officers were complicit in practices illegal in Britain.
This ruling has dealt a serious blow to the belief that the
activities of MI5 and MI6 are beyond the reach of the courts –
effectively above the law. The parliamentary Intelligence and Security Committee
that is supposed to oversee the Security and Intelligence services has been
powerless to break through the wall of silence with which they have been
confronted. Now things may change.
But the three senior judges of the court of appeal –
lord chief justice, Lord Judge, president of the Queen’s Bench Division, Sir
Anthony May and Master of the Rolls, Lord Neuberger – only deserve two
cheers. Following the judgment, in an extraordinary turn of events, Neuberger
was persuaded – or pressurized – to reconsider his draft judgment
before it was made public. This was in response to a private letter from the
government’s lawyer, Jonathan Sumption QC. The appeal judges agreed to redact
one paragraph (168) which was severely critical of MI5. But this intervention
by Sumption has turned out to be a pyrrhic victory for the government because
the court ruled that the letter can be made public. It has been published and
its publication has totally negated its intended purpose, which was to conceal
the extent and nature of the court’s criticism of MI5.
All those involved in the case against the government’s
attempts to suppress the evidence of MI5 and MI6 complicity in the torture of
Mohamed – his lawyers, the civil liberties organizations Liberty and
Justice and The Guardian newspaper - have been astounded at this brazen attempt
to interfere with a court judgment after it has been handed down. It provides further
evidence of the government’s cavalier attitude to the rule of law on matters
concerning the security and intelligence services. In order to appreciate the
full impact of the “own goal” they have scored, it is necessary to reproduce
the relevant parts of Sumption’s private letter to Neuberger:
“The Master of the Rolls’ observations…will be read as
statements by the Court (i) that the Security Service does not in fact operate
a culture that respects human rights or abjures participation in coercive interrogation
techniques; (ii) that this was in particular true of witness B whose conduct
was in this respect characteristic of the service as a whole; (iii) that
officials of the Service deliberately misled the Intelligence and Security
Committee; (iv) that this reflects a culture of suppression which penetrates
the service to such a degree as to undermine any UK government assurances based
on the Service’s information and advice.”
Well, yes, exactly. That is precisely what the court
intended to convey. Jonathan Sumption deserves our thanks for stating it so
clearly and succinctly.
What manner of man is Jonathan Sumption QC? He is clearly
one who has, in Shakespeare’s phrase “done the state some service, and they
know it”. He is a commercial
lawyer who makes at least £2 million a year. He used to write speeches for the
very right-wing Conservative Sir Keith Joseph, guru to Margaret Thatcher. With
Joseph he co-authored a book attacking the concept of equality as a desirable
human goal and arguing that greater inequality was desirable. He was engaged by
Blair to help shut down the criminal investigation into BAE Systems. He has a
history of rabid hostility to trade unions and sat on a secret committee which
planned the defeat of organized labor. Like so many others of his ideological
make-up, he seems to have made the transition from free-market Thatcherite to
friend of New Labor quite painlessly.
The consternation caused in government circles by the appeal
court’s ruling is evident in a long letter in today’s (12th February) Guardian newspaper, signed jointly by the Home Secretary, Alan
Johnson and the Foreign Secretary, David Miliband. Its tone is indignant, its
content predictably obfuscatory and evasive. It falls back on the hackneyed
defense that the appeal was only about “protecting our intelligence-sharing
relationships” with the U.S. The government, they claim, neither participates
in nor condones the use of torture or cruel, inhuman behavior. The suggestion
that the government’s agents have been involved in such things is”disgraceful”.
There is no attempt to address the court’s finding that MI5 agents did actually
collude in those very activities. What is really disgraceful is Sumption’s
intervention on behalf of the government to suppress a crucial part of the
court’s conclusion. That amounts to an attempt to undermine the rule of law,
but Miliband and Johnson say nothing about it.
Perhaps we should not be surprised. They both supported, and
continue to defend, the illegal invasion of Iraq. They now display the same
disdain for the nation’s legal procedures as they did earlier for international
law. One is reminded of Benjamin Franklin’s warning: “If we give up some of our
freedom for more security we will end up with neither security nor our
freedom.”