Torture cannot be hidden forever

Yesterday’s extraordinary announcement that the Attorney General, Baroness Scotland, has been asked by Home Secretary Jacqui Smith to investigate possible “criminal wrongdoing” by MI5 and the CIA in the case of Binyam Mohamed, a British resident held in Guantánamo Bay, Cuba, is the latest, and perhaps most significant example of the use of torture coming back to haunt the torturers.

Mr. Mohamed’s lawyers have spent over three years attempting to secure information proving that their client, seized in Pakistan in April 2002, was rendered by the CIA to 18 months of torture in Morocco, and was then transferred to a CIA prison in Afghanistan, before arriving in Guantánamo in September 2004.

The Home Secretary’s unprecedented decision was based on evidence uncovered during a judicial review of Mr. Mohamed’s case in the High Court this summer. This established that an MI5 agent had acted illegally when he interrogated Mr. Mohamed during his “unlawful” detention in Pakistani custody, but there is clearly more to the story, involving other evidence of the activities of both MI5 and the CIA. Much of this was only heard in closed sessions in the high court, when the agent was being cross-examined, but the judges also gave weight to an admission, on behalf the Foreign Secretary, David Miliband, that Mr. Mohamed had “established an arguable case” that he had been subjected to torture in US control.

For defenders of the absolute ban on torture, the decision demonstrates that, whatever the circumstances, the use of torture can neither be condoned nor hidden forever. Back in 2002, when CIA planes were criss-crossing the globe, rendering kidnapped “terror suspects” to prisons in other countries, including Egypt, Jordan, Morocco and Syria, where they could be either “disappeared” or tortured on America’s behalf, few of the European countries who aided the United States in its policies of “extraordinary rendition” and torture bothered to think about the consequences.

Either through ferocious diplomatic pressure, or because they had bought into the “War on Terror” rhetoric, countries including Germany, Italy, Sweden and the UK provided key intelligence identifying suspects, assisted the kidnappings, interviewed prisoners when they were being held illegally, or provided information about them when they were already held in unknown conditions and in unknown locations.

For the Bush administration, none of this was regarded as a problem. Using wartime powers granted by Congress after the 9/11 attacks, the US government believed that national security concerns trumped its obligations under the UN Convention Against Torture and the Geneva Conventions, and in secret memos, lawyers close to Vice President Dick Cheney, who was driving the policies, granted the CIA unfettered powers to deal with “terror suspects,” sought to redefine torture, and, from the summer of 2002 onwards, authorized the CIA to run its own secret torture prisons.

Although the US administration, in its dying days, has so far managed to avoid accountability for its actions within the United States, its policies –- and the actions of other countries who provided assistance –- have come under increasing scrutiny in Europe.

In November 2006, the UN declared that the Swedish government had violated the universal torture ban in December 2001, when it handed over two Egyptian asylum seekers, Mohammed al-Zari and Ahmed Agiza, to the CIA. The men were then rendered to Egypt, where they were tortured, in spite of a “diplomatic assurance” from the Egyptian government, secured by the Swedes before the rendition took place, which purported to guarantee that they would be treated humanely.

Last year, in Germany and Italy, arrest warrants were issued for a number of CIA agents involved in the kidnapping, rendition and torture of two other men, Khaled El-Masri, a German citizen who was kidnapped in Macedonia and rendered to a CIA prison in Afghanistan, because he shared a name with someone who had allegedly aided the 9/11 hijackers, and Abu Omar, a cleric who was kidnapped in a Milan street in February 2003 and rendered to Egypt.

But while these cases have, to some extent, become mired in red tape, the latest developments in Binyam Mohamed’s case hold out the hope that, with the demise of the Bush administration, the absolute ban on the use of torture will be vigorously reinstated, if not voluntarily, then through court cases establishing that complicity in torture is unforgiveable.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on Liberal Conspiracy.