Did the security services know about detainee mistreatment?

29 September 2010 by Adam Wagner

Binyam Mohamed

More documents have emerged calling into question what the UK security services knew about the alleged mistreatment of ‘War on Terror’ detainees. Until this case is resolved, it is unlikely that work will begin on the upcoming torture inquiry.

Various documents have been disclosed in the ongoing case of Al Rawi and Others v The Security Services, in which six men who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, allege various forms of mistreatment. They say that the UK government knew or should reasonably have known that the mistreatment was happening. Although the case has not yet reached trial, it has been the subject of a number of high-profile applications for secret documents (see our posts here and here).

One 2002 document entitled “UK Nationals Held in Afghanistan and Guantanamo” contains the a handwritten note by then Prime Minister Tony Blair saying:

The key is to find out how they are being treated. Though I was initially sceptical about claims of torture, we must make it clear to the US that any such action would be totally unacceptable and v. quickly establish that it isn’t happening.

The Guardian’s take on the evidence is that torture warnings were “pushed aside” for Britain to join the U.S. war on terror.

It is important to understand the context of this disclosure. The basic legal background is that Article 3 of the European Convention on Human Rights prohibits the state from subjecting anyone to “torture or to inhuman or degrading treatment or punishment.” The UK is also a signatory to the Convention against torture and other cruel, inhuman or degrading treatment or punishment. So it is illegal for any agents of the state to carry out or be complicit in such treatment.

Al Rawi is a civil (that is, non-criminal) compensation claim, but the wider issues surrounding the alleged mistreatment, and how much the UK security services knew about it, are to be explored in an upcoming torture inquiry announced by the coalition government in July.

However, the inquiry, which as yet has no published terms of reference, is not likely to begin until Al Rawi has been resolved. When he announced the inquiry, the Prime Minister said that “it’s not feasible to start it when there so many civil law suits that remain unresolved.” He went on to say  “we are committed to mediation with those who have brought civil claims about their detention in Guantanamo. And wherever appropriate, we will offer compensation. As soon as we’ve made enough progress, an independent Inquiry will be held.” As yet, the claims have not been resolved.

The torture inquiry is also likely to consider the guidance which intelligence officers and service personnel were given at the time in relation to obtaining and using evidence obtained from detainees. The up to date 2010 guidance was published by the government at the same time as it announced the torture inquiry, and has recently been criticised and then defended . But the High Court in Al Rawi has been concerned with the 2002 and 2004 versions (see our post) which may not have provided clear enough guidance to security services.

At present, the Al Rawi hearings arise every few months and providing a slow drip of disclosure. However, these are only preliminary hearings. It has been claimed that there are potentially 500,000 more documents to disclose, and only around 900 have been revealed so far. Every formerly secret document has to be scrutinised and often redacted in order to ensure its disclosure would not harm national security, which slows everything down. But until Al Rawi concludes by either settlement, as seems to be the government’s intention, or a full trial, it appears that there is little chance of the promised torture inquiry getting underway.

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Read more:

• More posts on terrorism
• The ripple effect from Guantanamo Bay to the English courts
• Al Rawi disclosure evidence of torture complicity?