Events | 2009.03.15
Timothy Garton Ash: If Britain became complicit in torture, we must discover who is to blame
The only way to answer charges of a political cover-up is to hand this case over to the director of public prosecutions
Next week, the foreign secretary will present the Foreign Office\'s annual report on human rights violations around the world. For anyone who cares about Britain and human rights, it will feel difficult to ask about anything except the British government\'s own entanglement in a case of torture.
The evidence, so far as we have been allowed to see it, suggests four things. First, Binyam Mohamed, a British resident travelling on a forged British passport, was detained without trial for nearly seven years, at the behest of the US authorities, in prisons in Pakistan, Morocco, Afghanistan and Guantánamo Bay, and for some of that time he was tortured. Second, British security service officials were directly involved in interrogating Mohamed in Pakistan, and subsequently supplied questions that were passed by the CIA to his Moroccan torturers. Third, only last year British and American officials worked together to delay, if not prevent, documents that pointed to such mistreatment being supplied in a timely fashion to Mohamed\'s defence lawyers, at a time when the Bush administration was poised to put him on trial before a so-called military commission on charges carrying a possible death sentence. Fourth, the British government is even now dragging its feet about initiating the criminal investigation, overseen by the director of public prosecutions, which would be the only fitting response to such a grave sequence of events and set of documented allegations. So, here\'s the charge sheet in shorthand summary: American-authorised torture; British complicity; an American-British attempt to withhold evidence; and now the predictable temptation to cover up.
Most of this story emerges not from hearsay or journalistic digging, but from the patient work of British lawyers and judges, scrupulously documented in the copious records and stately prose of the high court. It\'s not easy bedtime reading, but the authority is unimpeachable and the detail riveting.
Take the four points in turn. I defy anyone to read Binyam Mohamed\'s account of having his penis repeatedly cut by a Moroccan torturer\'s scalpel and not feel slightly sick. "Oh, but we only have his word for it," a hard-nosed doubter might say. Yet, even in the publicly available court records, there are clear indications that British and US security operatives had few illusions about the way he was being treated, starting already in Pakistan - and that precisely this is documented more fully in records and testimony still kept secret.
You do not need to believe that he was harmless to find the treatment of Mohamed over these seven years shocking and shameful. Yes, he seems to have been just a pretty mixed-up young guy, led astray by some version of Islamism. So were the London bombers. If we are to take the high court\'s judgment as our gold standard then we must also note its view that Mohamed was "a serious potential threat to the national security of the United Kingdom". But that, in the British government\'s own repeatedly stated view, does not justify torture. Centuries of common law and more recently embraced international obligations unite on this: torture is never justified. Never.
The strong impression that Britain became complicit in Mohamed\'s torture derives particularly from the testimony of an MI5 officer identified only as Witness B, who interviewed Mohamed - in what Witness B surreally describes as "very cordial circumstances" - in Pakistan some five weeks after his arrest in spring 2002. The high court finds that he and others in M15, "including persons more senior to Witness B", must have read reports (still kept secret) about the circumstances of Mohamed\'s illegal detention and treatment in Pakistan. Whether or not it was Witness B who produced the truly Pinteresque threatening remark that Mohamed would need more sugar in his tea "where you\'re going" (Witness B denies it), the high court finds that MI5 continued to "facilitate" interviews by and on behalf of the US, knowing full well that Mohamed was being interrogated in a third country.
Now article 4.1 of the 1984 UN convention against torture says that every signatory state must ensure that all acts of torture are offences under its criminal law and "the same shall apply ... to an act by any person which constitutes complicity or participation in torture". Did this not amount to complicity?
Then there was the British government\'s withholding of information that could have enabled Mohamed to argue in his defence, before the American military commission, that the confessions he did make were exacted under duress. The high court is eloquent on this, quoting an English common-law judgment from 1783 that "a confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected". As we know, the foreign secretary argued that Mohamed could not be offered the only available means to this ancient redress because it would threaten national security. Subsequently, he argued that some of this information could not be made public because the US government had said that to do so would endanger British-American intelligence sharing - that sacred heart of our alleged special relationship with Washington. Then it turned out the Foreign Office had asked the US government to say that.
Last October, all the papers from the court hearings, open and closed, were given by the home secretary to the attorney general. If she thinks there might be a case for criminal prosecution against Witness B, or anyone else, she must either start a criminal investigation herself or hand it over to the director of public prosecutions. More than four months later, nothing has happened. Why? Well, perhaps she has just been busy. But there remains, in the British system, this latent conflict of interest which the high court summarises thus: "the Attorney General is a Minister of the Crown and thus a member of the Executive branch of the state whose officials are alleged to have facilitated cruel, inhuman or degrading treatment or torture".
What is more, Witness B has testified on oath that his actions were authorised by "senior management" and deemed proper and appropriate "as far as the Security Service was concerned, and, I believe, Government". The government, that is, of which the attorney general is a member. Even if Witness B were prepared to be the fall guy (and it doesn\'t sound like it), any serious criminal investigation would have to inquire into the chain of command, which presumably went up through the head of MI5 to the then chair of the joint intelligence committee, John Scarlett, now head of MI6, and perhaps higher still, to the then prime minister Tony Blair.
In these circumstances, and given all we know from the high court, any decision other than to hand this over to the director of public prosecutions will inevitably be interpreted as a political cover-up. Until we have got to the bottom of this dark well, using the unrestricted searchlight of the law, any lectures the British government tries to deliver to others on respect for human rights will be dismissed as rank hypocrisy.
For more information, please visit
http://www.guardian.co.uk/commentisfree/[...]orture-guantanamo-human-rights
