Torture is an emotive and controversial subject. It cannot fail to provoke a response, so it is no surprise that the Court of Appeal’s recent ruling in the case of Binyam Mohamed has garnered much media attention. It will not need any introduction to anyone with an interest in human rights. The case is one that has had reverberations throughout British politics, and could continue to have far-reaching implications for the media, the security services and the judiciary of this country.
Binyam Mohamed al Habashi, originally from Ethiopia, arrived in the UK in 1994. He sought asylum in this country, and although his application was rejected, in 2000 he was given exceptional leave to remain in this country for four years.
He converted to Islam in 2001, and in the same year travelled to Pakistan and Afghanistan. When intending to return to the UK in 2002, he was arrested by Pakistani immigration officials at Karachi airport, after being suspected of fighting against anti-Taliban North Alliance forces whilst in Afghanistan.
He alleges that he was tortured in Pakistan, Morocco and Afghanistan, being beaten and scalded, and having his penis slashed with a knife. In Afghanistan, he claims to have been held in a black hole at the “Prison of Darkness”, where he was deprived of sleep, blasted with sound, starved, beaten and hung up. The case revolves around “Witness B”, an MI5 officer who visited him in Pakistan, and the question of whether or not the officer knew Mohamed was being tortured.
But the case has become murkier. Last month, judges in the Court of Appeal concluded that the security services should be criticised for their involvement – but the version of a judgment previously released did not contain these criticisms. Lawyers acting for the government had put pressure on the judges to leave them out of the judgment. It was only following media pressure that the Court decided to issue a revised version of the judgment, which reinstated the passages containing criticism of MI5.
A great deal of media attention has been focused on this case, and questions have been raised about the freedom of the judiciary in instances involving liberty. But is it right for media emphasis to be on this? Is it more important to wonder if MI5 really is more complicit in torture than is commonly thought?
Dr. Silvia Casale is a renowned expert in the field of torture prevention, and has served as President of both the European Committee for the Prevention of Torture and the United Nations Subcommittee on the Prevention of Torture. Speaking as an individual, she states, “the question is how much Witness B knew of what the interrogation processes were. How much was he involved? If he was aware, and therefore the service as a whole was aware, then that’s a problem. The UK cannot be involved in something where the person concerned, who is also being questioned by their own officer, is actually being tortured. That’s not an acceptable position.”
“The issues the case raises are about what the intelligence services are doing on behalf of the British public and whether or not they are fully compliant with our human rights obligations. Binyam Mohamed isn’t the only case that’s raised it, and it shows that there are deep concerns which need to be addressed.”
But the case has become embroiled in a debate over how much influence the government should have over judicial processes. This is due to the controversial paragraph 168 of the judgement. In the original draft, it was said that MI5 denied any ill-treatment of detainees interviewed by them whilst detained on behalf of the US, “yet that does not seem to be true: as the evidence in this case showed, at least some SyS (Security Service, MI5) officials appear to have a dubious record when it comes to human rights and coercive techniques”. However, in the final version, the wording is crucially changed to: “Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement”. It is only due to what the BBC calls “an exceptionally unusual move” that we even have access to the draft document.
However, Dr. Casale thinks that it would be unwise to draw too much attention to this discrepancy. She explains that the writing of a draft opinion is commonplace, and it is usual for it to be circulated amongst judges before being released as a final document. “You put down your view in rough draft, and people have a look at that, and they tell the other side if they’re going to make some remarks. There was an assumption that everyone had seen the draft and that everybody was in agreement about the suggested about amendments.
“People who don’t know how the procedures normally work would think that it sounds like the judges are just bowing to pressure from one side, but this would be a skewed perspective.” Was the Court following standard procedure? “The judges acted normally, yes. They were assuming that normal procedures had been followed, but they hadn’t. They were making assumptions that were not valid, but based on the way one conventionally does these things, they would have been reasonable in assuming that.”
She believes that although the media were right to cover the case to such an extent, perhaps the emphasis was misplaced. “It’s a very tricky thing for the media on the one hand to be very careful about understanding the exact context and the law, and on the other hand, make it clear what the main issues are and what the public needs to know. Sometimes the media doesn’t get it entirely right, but I do think it’s very important that things are aired in the public domain.”
As a country which has ratified both the United Nations Convention against Torture and the Optional Protocol to the Convention, the UK is bound by strict international law over its involvement in torture. In addition to this, we are subject to the jurisprudence of the European Court of Human Rights. However, the government’s close relationship with the US, which is not bound by the same restrictions, has led to a blurring of boundaries, particularly in the Blair and Bush era. The Binyam Mohamed case is a perfect example of this. Although not legally a citizen, his right to be in the UK had been acknowledged, but he was then taken to a CIA-led site in Afghanistan, and subsequently to Guantanamo Bay in 2004.
“It’s absolutely clear that the Bush administration made public statements and did non-public things which were totally not in conformity with the prohibition against torture. For example, waterboarding, which they tried to say was not torture.
People who serve the UK are accountable to the public. I don’t want people in my name to be torturing somebody
“The UK has a different position on this from the US, and whatever governments might privately agree when leaders discuss such matters doesn’t alter the fact that we are bound by international law. We can’t get around that, and we shouldn’t try to. The US is not on the same page.”
But Dr. Casale emphasises that it is not right to tar all officials with the same brush. “There are people within the UK public service who are trying very hard to hold to these international obligations, but then I’m afraid that there may be some people who want to look the other way. There was always a danger of that. The ABA (the American Bar Association) has recently published its standards on the treatment of prisoners, which are clearly moving in the same direction as the European position. There’s clearly a difference between the current administration under Obama and the administration under George Bush.”
Throughout 20th century US history, there was often a tendency to frame foreign policy issues in a straightforward choice between national security and upholding human rights. One only has to look at the differing approaches of Presidents Jimmy Carter and Ronald Reagan in foreign affairs to note what an impact this distinction can have. And, more recently, after 9/11, the debate has been framed in a similar way, through Bush’s much publicised “war on terror” and in the UK, the question of how long terror suspects can be held without charge.
However, Dr. Casale believes that this distinction is counter-productive. “The way that the US has construed it in the past is a mistake. I don’t think that the two things are antithetical. Our national security in the UK depends upon our holding to international law and holding to the prohibition against torture, and I think it undermines our national security when we don’t hold to these legal obligations and those moral values.
“I’m not saying that 9/11 wasn’t a catastrophe, of course it was, but in the panic that ensued, people lost sight of the fact that if you chuck away your legal obligations internationally – these core principles, like the absolute prohibition of torture – then you’re actually putting the nation more at risk in the end.”
She is well placed to discuss attitudes within the secret services, having worked extensively on terrorism cases in Northern Ireland. “There is a sense in which once people are working in intelligence matters, they may think everything should be secret, and of course, you mustn’t expose individuals to risk because you’re being careless about the information you give out. But there are ways of dealing with information so that the important issues come out and so that the public is informed, as the public is supposed to be.”
Is the right balance between protecting information and keeping people informed always found? “Quite often there is too much emphasis on secrecy, whereas really what the emphasis should be on is doing things and handling information in a safe and appropriate way.”
But returning to the case of Binyam Mohamed, Dr. Casale makes it very clear where she stands. “The degree of involvement (by SyS) isn’t entirely clear, but it is clear that there was at least one MI5 officer who was interrogating the same person who was subjected to torture by the Pakistani interrogators.
“People who serve the UK – whether they’re in the secret services, or the intelligence services, or whatever line of work – they’re in the public service, and they’re accountable to the public. It’s right that we should know what’s being done in our name. I don’t want people in my name to be torturing somebody, whether it’s in Pakistan or anywhere else.”
It would be wrong to conclude from this case that the security services are habitually complicit with torture abroad. However, questions have certainly been raised. The very nature of the security services means that we, as the general public, can never know exactly what goes on in our country’s name. We expect that the UK should never be involved in torture, but when our own judiciary criticises our services, suspicion must fall. M