New challenge over torture complicity
The government is facing a new challenge over its alleged complicity in torture today, as Reprieve launches legal proceedings against its guidance to intelligence officers.
During the Binyam Mohamed case, an intelligence agent known as witness B referred to guidance issued by his superiors while being cross-examined.
Reprieve is now seeking a judicial review into the legality of that guidance for agents interviewing prisoners abroad, which foreign secretary David Miliband has demanded be kept secret.
Campaigners claim a growing body of circumstantial evidence shows that British officers have accepted intelligence from countries which do torture prisoners. Clara Gutteridge, secret prisons investigator at Reprieve, said whether this legally qualified as complicity in torture came down to a “question of semantics”.
The proceedings begun today are seeking to persuade a judge that the legality of the guidance needs to be investigated.
Richard Stein of Leigh Day & Co solicitors told journalists this lunchtime: “In the area we’ve been working in, the government has a track record of using secrecy to cover up political embarrassment.
“We think we’ve got enough [evidence] for the judge to say there is an arguable case that the guidance is unlawful.”
Reprieve believes there are only three outcomes relating to the guidance. Either the agents are responsible for the illegal practices taking place, defying official guidance; or the policy licences that activity directly; or the guidelines are silent on these issues.
The guidance is in three forms. One is thought to have been instituted on January 11th 2002. The second is thought to have been in force from 2004 onwards and remains in force today. Most human rights groups strongly suspect it is illegal, but the government refuses to release it into the public domain.
The final guidance was promised by Gordon Brown in March of last year, but has yet to emerge.
“It cannot take a year to come up with new advice – we could have written it for them in an afternoon,” Reprieve director Clive Stafford Smith said.
“Agents in the field are still, apparently, required to rely on the 2004 policy. Meanwhile, the government is playing for time here, hoping that the issue can be punted past the election to the next parliament.”
The Cabinet Office has said Mr Brown’s decision to release the new guidance was “very much the exception to the rule” and that it would not publish the previous guidance as a result.
“It has been the longstanding practice of the government not to comment upon operational matters or to place operational material into the public domain,” a spokesman said.
“Recognising the importance of this particular issue, however, the prime minister has made an unprecedented commitment to publish consolidated guidance in order to make plain the standards to which we hold ourselves.”
Mr Stafford Smith believes the government’s argument that it cannot publish the guidance because doing so would compromise national security is not valid.
“Advice given to agents cannot sensibly be deemed ‘classified’, as disclosing legal advice hardly betrays a national secret,” he added.
“Rather, depending on what the policy was, it exposes those who sanctioned the advice to immense embarrassment.”
Ten diverse examples of complicity are used to support the action: from British agents driving a prisoner around in a mobile interrogation unit in Iraq in the midst of his alleged torture, to urging prisoners to cooperate with their abusers, to threats of rendition, to knowingly feeding questions to prisoners who were being mistreated.
The judicial review comes weeks after the court judgement into the release of paragraphs describing the interrogation of Mr Mohamed raised serious concerns about the British government’s knowledge of CIA interrogation techniques.
