Britain’s Secret Post-9/11 Torture Policy Revealed

Describing the document as reportedly being "too sensitive to be publicly released at the government inquiry into the UK's role in torture and rendition," and as contributing to the decision by the NGOs and lawyers to boycott the inquiry because it does not have "credibility or transparency," the Guardian explained how the secret policy "was operated by the British government for almost a decade," and how it "instructed senior intelligence officers to weigh the importance of the information being sought must be balanced against 'the level of mistreatment anticipated' - the degree to which the prisoner or prisoners will suffer."

The Guardian also explained how the document revealed the fears of the government and the intelligence agencies that they were breaking laws, as it "acknowledged that MI5 and MI6 officers could be in breach of both UK and international law by asking for information from prisoners held by overseas agencies known to use torture," and also "explained the need to obtain political cover for any potentially criminal act by consulting ministers beforehand."

The Guardian also described the history of the secret interrogation policy, explaining that it was first made available to MI5 and MI6 officers in Afghanistan in January 2002 so that they could "continue questioning prisoners whom they knew were being mistreated by members of the US military." It was "amended slightly" later in 2002, and was then "rewritten and expanded in 2004″ after the government became concerned about the threat posed by British Muslims radicalized by the invasion of Iraq, and was "amended again in July 2006 during an investigation of a suspected plot to bring down airliners over the Atlantic."

It was also noted that "separate policy documents were issued for related matters, including intelligence officers conducting face-to-face interrogations."

In key passages, the 10-page document explains international and domestic laws regarding torture, and reiterates the explanation always provided by government officials when they were questioned about the use of torture - that MI5 and MI6 do not "participate in, encourage or condone the use of torture or inhuman or degrading treatment." However, as the Guardian noted, this "blanket denial" failed to disclose that officials were actually "quoting from a document which offered MI5 and MI6 officers a means of extracting information from people being tortured."

As the article proceeded to explain:

Intelligence officers were instructed not to carry out any action "which it is known" would result in torture. However, they could proceed when they foresaw "a real possibility their actions will result in an individual's mistreatment" as long as they first sought assurances from the overseas agency.

Even when such assurances were judged to be worthless, officers could be given permission to proceed despite the real possibility that they would committing a crime and that a prisoner or prisoners would be tortured.

"When, not withstanding any caveats or prior assurances, there is still considered to be a real possibility of mistreatment and therefore there is considered to be a risk that the agencies' actions could be judged to be unlawful, the actions may not be taken without authority at a senior level. In some cases, ministers may need to be consulted," the document said.

In deciding whether to give permission, senior MI5 and MI6 management "will balance the risk of mistreatment and the risk that the officer's actions could be judged to be unlawful against the need for the proposed action."

At this point, "the operational imperative for the proposed action, such as if the action involves passing or obtaining life-saving intelligence" would be weighed against "the level of mistreatment anticipated and how likely those consequences are."

Ministers may be consulted over "particularly difficult cases," with the process of consulting being "designed to ensure that appropriate visibility and consideration of the risk of unlawful actions takes place." All such operations must remain completely secret or they could put UK interests and British lives at risk.

The mention of "ministers" obviously suggests that this secret policy was well known to the most senior ministers in the Labour government, including Tony Blair, Jack Straw, David Blunkett and David Miliband, and the Guardian noted that disclosure of the contents of the document "appears to help explain the high degree of sensitivity shown by ministers and former ministers after the Guardian became aware of its existence two years ago," explaining that Tony Blair "evaded a series of questions over the role he played in authorising changes to the instructions in 2004″ (as discussed by the Guardian in June 2009, and also see my article here), and adding that former home secretary David Blunkett "maintained it was potentially libellous even to ask him questions about the matter," and that David Miliband, when he was foreign secretary, told MPs that the secret policy could never be made public as "nothing we publish must give succour to our enemies."

As the Guardian also noted, Tony Blair, David Blunkett and former foreign secretary Jack Straw all "declined to say whether or not they were aware that the instructions had led to a number of people being tortured."

The intelligence agencies have long acknowledged that their work involves difficult choices involving the definition and use of torture, with Jonathan Evans, the head of MI5, claiming in a speech in October 2009 that his officers "would be derelict in their duty if they did not work with intelligence agencies in countries with poor human rights records," and Sir John Sawers, the head of MI6, speaking about the "real, constant, operational dilemmas" involved in the UK's relationships with dubious regimes.

The Guardian also wondered about the role of the Intelligence and Security Committee, who are involved with the oversight of the intelligence agencies, explaining that the Committee was "known to have examined the document while sitting in secret, but it is unclear what - if any - suggestions or complaints it made," and also noted that Paul Murphy, the Labour MP who was the chair of the Committee in 2006, "declined to answer questions" about the document and the Committee's scrutiny of it.

To my mind, however, the key phrase that emerged from the Guardian's article was made in by Ken Macdonald, the Director of Public Prosecutions from 2003-08, who, in response to Jonathan Evans' speech in October 2009, questioned whether "Tony Blair's government was guilty of developing something close to a criminal policy" (emphasis added).

This policy - whether criminal or "close to" criminal - has affected dozens of British citizens and residents since the 9/11 attacks, as Ian Cobain has been reporting since 2008. These men are not only those who, like the British resident Binyam Mohamed, ended up at Guantánamo after being tortured in US custody in Pakistan, in Moroccan custody, and then in US custody in Afghanistan, with British knowledge of some, if not all of this 28-month period, but others whose cases are not generally as well known, and whose torture primarily involved the British and the security services of the countries they were seized in, and does not appear to have been specifically driven by the US.

Most of these cases have involved British citizens and residents stating that they were "questioned by MI5 and MI6 officers after being tortured by overseas intelligence officials" in countries including Pakistan, Bangladesh, Afghanistan, Egypt, Dubai, Morocco and Syria. Some, as the Guardian noted, "are known to have been detained at the suggestion of British intelligence officers," while others were "interrogated on the basis of information that could only have been supplied by the UK."

Moreover, some of the men were subsequently convicted of terrorism in a British court - with their torture allegations suppressed, in the case of Rangzieb Ahmed from Rochdale, who was convicted of "running an al-Qaida terror cell" and sentenced to life in December 2008 - while others were subjected to control orders (a form of house arrest, imposed on the basis of secret evidence).

Others resumed their lives, like Alam Ghafooor, who is "a businessman in Yorkshire," Azhar Khan, who is "a software designer living in Berkshire," and a third man, who is "a doctor practising on the south coast of England," and, as the Guardian noted, "[s]ome have brought civil proceedings against the British government, and a number have received compensation in out-of-court settlements, but others remain too scared to take legal action."

It is not known where these latest revelations will lead, although they will surely add to the pressure on the government to rethink its plans for an inquiry that has no support from NGOs, lawyer and former Guantánamo prisoners. As the Guardian also noted, the allegations that officers from MI5 and MI6 "committed criminal offences while extracting information from detainees overseas" has been the subject of a Metropolitan Police investigation, with detectives now conducting a "wider investigation into other potential criminal conduct."

Interestingly, David Cameron conceded last July, when announcing the torture inquiry, that it cannot begin until the Metropolitan Police have concluded their investigation, and last week ITV News reported that "Scotland Yard detectives plan to interview prisoners at Guantánamo Bay as part of an investigation into a MI6 officer," which "involves events at the Bagram US base in Afghanistan in January 2002." As was explained on the ITV News blog, "Detectives from the Specialist Crime Directorate are trying to track down many of the nearly 50 prisoners who were at Bagram during that month," because Scotland Yard detectives "want to establish whether a MI6 officer who was at the base broke British law after witnessing the way prisoners were treated."

While this is a fascinating development - and ought to lead to renewed calls for the return to the UK of Shaker Aamer, the last British resident in Guantánamo, who is the subject of part of the Metropolitan Police investigation, based on his allegations that a British agent witnessed his abuse at the hands of US agents in Afghanistan - the Guardian also questioned whether the replacement (PDF) for the "Agency policy on liaison with overseas security and intelligence services in relation to detainees who may be subject to mistreatment," which was revised on the orders of David Cameron, on the grounds that the new government wished to give "greater clarity about what is and what is not acceptable in the future," was actually adequate. It was noted that human rights groups have alleged that there are still "serious loopholes that could permit MI5 and MI6 officers to remain involved in the torture of prisoners overseas," and that, just last week, the High Court "heard a challenge to the legality of the new instructions, brought by the Equality and Human Rights Commission," with judgment expected later in the year.

In light of the Guardian's revelation of this document, Eric Metcalfe, the director of human rights policy at JUSTICE, the all-party law reform and human rights organization, wrote an article today for the Guardian's Comment is free, in which he summed up the problems for the government (the current one, as well as the former one) and the intelligence services that were revealed along with the leaked report.

"Torture," Metcalfe confirms, "was something the previous government would never knowingly condone or be complicit in," However, "when it came to situations in which the government did not know for certain, or did not especially want to, all bets were, apparently, off." As Metcalfe proceeded to ask:

Would you risk someone being waterboarded in a foreign country for a week if you thought it might save 10 British lives? What if you thought it might save only one life, but you were not really sure? What would that be worth? Waterboarding for a day? The secret government policy uncovered in Ian Cobain's story on Thursday does not set things out in such crude terms, but it is the kind of grotesque utilitarian calculus that is invited by its bland references to "balancing the risk of mistreatment" against "operational imperatives."

And although the policy may have changed, officially, it is hard to imagine that, in the corridors of power, when a supposed threat is highlighted in missives from foreign allies known for using torture, anything has changed. Those words - "balancing the risk of mistreatment" against "operational imperatives" - strike me as exactly the kind of language that David Cameron and other ministers will be using with senior officials in the intelligence agencies, just as happened with the previous government.