Britain’s Torture Troubles: What Tony Blair Knew

In a front-page story today, “Tony Blair knew of secret policy on terror interrogations,” the Guardian follows up on the story of Britain’s secret interrogation policy for terror suspects abroad (which I reported here, based on David Miliband’s testimony on Tuesday to the Parliamentary Committee on Foreign Affairs), stating that former Prime Minister Tony Blair “was aware of the existence of a secret interrogation policy which effectively led to British citizens, and others, being ­tortured during counter-terrorism investigations.”

The Guardian explained that the post-9/11 policy “offered ­guidance to MI5 and MI6 officers ­questioning detainees in Afghanistan whom they knew were being mistreated by the US military,” providing intelligence agents with written instructions that they could not “be seen to condone” torture and must not “engage in any activity yourself that involves inhumane or degrading treatment of prisoners,” although, as the Guardian described it, “they were also told they were not under any obligation to intervene to prevent detainees from being mistreated.” As stated in the policy, “Given that they are not within our custody or control, the law does not require you to intervene to prevent this.”

The Guardian proceeded to explain that the policy, which was “set out in written instructions sent to MI5 and MI6 officers in January 2002,” also informed them that they “might consider complaining to US officials about the mistreatment of detainees ‘if circumstances allow,’” and noted that Tony Blair had “indicated his awareness of the existence of the policy” in 2004, shortly after the Abu Ghraib scandal broke.

It was at this time, as David Miliband explained on Tuesday, that the policy changed. Miliband stated that, “Before 2004 the guidance was informal, after 2004 it was more formal. It is now comprehensive, including comprehensive legal advice to all officers.” In May 2004, Blair acknowledged his awareness of what was going on by writing to the Intelligence and ­Security Committee (the government’s own security watchdog), and stating that, rather than considering making a ­complaint, “UK intelligence personnel interviewing or witnessing the interviews of detainees are instructed to report if they believe detainees are being treated in an inhumane or degrading way.”

The Guardian added that it “has learned from a ­reliable source that MI5 officers are now instructed that if a detainee tells them that he or she is being tortured they should never return to question that person,” but there is a vagueness to that use of the word “should” that would not be there if the word “must” was used instead, and, moreover, David Miliband’s attempt to explain that the policy was “informal” before 2004 has now been revealed to have been less than honest.

What happened instead, it is clear, is that there was a formal policy in 2002, and that this was revised after 2004, but even so, recent scandals focusing on British knowledge of — or direct involvement in — interrogations involving torture in countries including Pakistan, Bangladesh and Egypt suggest that Britain is still complicit in torture, and that ministers should, therefore, be worried about their accountability.

Although the Guardian noted that it “remains unclear what Blair knew of the policy’s consequences,” the article’s author, Ian Cobain, added that “the discovery that Blair was aware of the secret interrogation policy appears certain to fuel the growing demand for an independent inquiry into aspects of the UK’s role in torture and rendition,” and explained that the list of prominent figures who have so far called for an inquiry includes the Conservative leader David Cameron, the Liberal Democrat leader Nick Clegg, Ken Macdonald, a former director of public prosecutions, Lord Carlile, the government’s independent reviewer of counter-­terrorism legislation, former foreign secretary Lord Howe, and Lord Guthrie, a former chief of defence staff.

In an article for the Guardian’s Comment is free, lawyers Philippe Sands and Alex Bailin explained why ministers should be worried, noting that, although the English courts have not interpreted Article 4 of the 1984 UN Convention Against Torture, which criminalises “an act by any person which constitutes complicity or participation in torture,” and that any future case for prosecution “will turn on its particular facts,” existing rulings in international law, decided before 2002, when the British government’s secret intelligence policy was formulated, “­provided guidance on the standard needed to avoid charges of complicity.”

Sands and Bailin provided a few salient examples, and also pointed out that, in a House of Lords judgment in December 2005, seven Law Lords, ruling on evidence obtained through the use of torture in the cases of up to 30 foreign terror suspects held without charge or trial in the UK, declared unanimously that information extracted through the use of torture is not admissible in any British courts (reversing an appeals court ruling that stated that such evidence “could be used if it was obtained abroad from third parties and if Britain had not condoned or connived in the torture”). In the ruling, Lord Bingham added that “the prohibition of torture requires member states to do more than eschew the practice of torture.”

Sands and Bailin also cited Martin Scheinin, the UN’s Special Rapporteur on Human Rights, who reported in February that British intelligence personnel had “interviewed detainees who were held incommunicado by the Pakistani ISI in so-called safe houses, where they were being tortured,” and added that this “can be ­reasonably understood as implicitly condoning torture.”

Their conclusion was suitably stark:

On these principles it is difficult to avoid the conclusion that the 2002 “instructions” were incompatible with Britain’s international obligations. They may have caused ­British personnel to cross a line into complicity, with ­responsibility ensnaring ministers who approved a policy which basically said: so long as you don’t directly participate in physical abuse you can press on with interviews, passing on questions.

That, presumably, is why the policy changed in 2004, after the Abu Ghraib abuses came to light. And that is why we need a full inquiry on the evolution of the policy: who decided what and when.

I would only add, in light of the post-2004 complicity mentioned above, that we also need assurances that British complicity in torture will no longer be tolerated, and that — moving beyond issues of accountability — the British government recognizes the corrosive effects that the use of information extracted through the use of torture has on those caught up in it. These include Rangzieb Ahmed, the man from Rochdale who was tortured in Pakistani custody and then sentenced to life after a trial in the UK, largely, it seems, on the basis of this information, and the many foreign and British nationals held without charge or trial in the UK based on the use of secret evidence (some of which was also obtained through torture), who are paying far too heavy a price for the government’s refusal to accept that evidence obtained through torture is unreliable and morally corrosive, and that making use of it is illegal under international law.

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.