Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee

Is it possible to get the truth about torture out of the British government, or is it easier to get blood out of a stone? I ask only because on Tuesday, in another polished performance — which shows that he has the skills under pressure that might one day come in useful if there is a party left to lead — David Miliband, the British foreign secretary, told the Parliamentary Foreign Affairs Committee that he was not allowed to reveal anything about the British intelligence services’ secret interrogation policy for dealing with terror suspects because of Parliament’s “sub judice” resolution.

Clive Stafford Smith, the director of the legal action charity Reprieve, came across the existence of the “sub judice” resolution three weeks ago, when he tried to tell the Committee about the previously unknown existence of a British spy who had been sent to talk to the British resident Binyam Mohamed, while he was being held incommunicado in Morocco, even though the UK government has long maintained that it had not been informed where he was being held by the United States. The resolution states that “cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question,” and it appears, from Miliband’s performance on Tuesday, that the resolution is therefore being used to prevent Parliament — and all who sail in her, however temporarily — from discussing Mohamed’s case at all.

As I explained in the Guardian at the time, Stafford Smith subsequently sent a letter to Mike Gapes MP, the chair of the Committee, stating that, “If these rules were interpreted in accordance with the advice given to you, and consistently applied, this would eviscerate parliament’s function. Indeed, if the advice given to you was truly a reflection of the parliamentary rule, then a swathe of MPs and Lords are already in violation of it. With due respect, it is clear that the advice is wrong, and serves to limit debate without furthering any legitimate interest of the courts.”

He also pointed out, “If, as is true in Binyam Mohamed’s case, the courts allow complete public discussion of the case, then parliamentarians are the only people in Britain (indeed, the world) who are not permitted to talk about something as significant as the torture of Binyam Mohamed.”

After Tuesday’s performance, Stafford Smith told me that David Miliband’s use of the resolution demonstrated, in no uncertain terms, that the government was using it as “an excuse not to discuss its crimes,” and this is undoubtedly correct. What makes it even more galling is that, just three months ago, in the wake of mounting criticism of the intelligence services’ activities (and the launch of a police investigation into the MI5 agents who visited Binyam Mohamed in Pakistan before his “extraordinary rendition” to Morocco), Prime Minister Gordon Brown ordered the secret interrogation policy to be rewritten, and also promised that it would be made public. However, on Tuesday, when pressed, David Miliband essentially took a leaf out of the Bush administration’s handbook, stating that the existing policy would never be revealed, even after current court cases have come to an end, because to do so would “lend succour to our enemies.”

As the Guardian explained, Miliband sounded the right notes about torture, telling the committee, “We would never procure intelligence, or procure evidence through torture. We would never say to another intelligence agency, ‘Please get us information about X’ and, you know, abandon our legal and ethical commitments in respect of how you find that.” However, the Guardian also noted that “[e]vidence heard in court has contradicted” the foreign secretary’s assertion.

The Guardian cited the case of Rangzieb Ahmed, from Rochdale, and explained how, last September, Manchester Crown Court “heard how MI5 and Greater Manchester Police drew up a list of questions for use by a notorious Pakistani intelligence agency which was unlawfully detaining” him, adding, “By the time Ahmed was deported to Britain 13 months later three of his fingernails were missing.” What is even more disturbing about the case is that, despite fears that Ahmed produced false allegations as a result of his torture in Pakistan, he received a life sentence in December.

In addition, while not referring to the recently revealed details of the British spy who visited Binyam Mohamed in Morocco, the Guardian also mentioned how Mohamed’s ongoing court case has already “resulted in the disclosure of the questions that MI5 asked be put to him, despite knowing that he had been tortured in Pakistan and having reason to believe he was being tortured after being rendered elsewhere.”

As a result, it was rather disturbing to hear Miliband not only talk about torture as though the UK had no knowledge of its use, but also to maintain that, in general, it was impossible to be sure that torture — or “mistreatment,” to use his euphemism — was not taking place in countries with whom the UK has an ongoing intelligence relationship. In a letter to the Committee, he wrote, “It is not possible to eradicate the risk of mistreatment. A judgment needs to be made. We cannot act in isolation in order to protect British citizens.” Moreover, although he acknowledged that some countries had “different legal obligations and different standards to our own in the way they detain people and treat those they have detained,” he added that this “cannot stop us from working with them.”

Notwithstanding the underreported assertion by Craig Murray, the former ambassador to Uzbekistan, that he was told in 2003 by Jack Straw that the use of evidence obtained through torture was “legal,” Miliband’s careful explanation of how it was impossible to be sure that material secured by the intelligence services had not been obtained through the use of torture reflects the FCO’s current policy, as described in its 2008 report (PDF, p. 16). After stating, “The use of intelligence possibly derived through torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it,” the report’s authors added, “Where there is intelligence that bears on threats to life, we cannot reject it out of hand.”

As I noted in an article in April, discussing the government’s use of secret evidence in terror cases in the UK, “Although this was followed by a declaration that it is ‘quite clear’ that ‘information obtained as a result of torture would not be admissible as evidence in any criminal or civil proceedings in the UK,’ the passage as a whole confirms not only that the FCO is committed to keeping open a torture loophole, but also that, because that information cannot be used in a court, it will, instead, undoubtedly contribute to perpetuating the system of detaining people on the basis of secret evidence” in the UK.

This was condemned last week by the Law Lords, in connection with the system of control orders — essentially a type of house arrest — that the government has imposed on a number of terror suspects in the UK, who, disturbingly, comprise both British and foreign nationals, but it also suggests — especially through the experience of Rangzieb Ahmed — that if information extracted through torture is obtained abroad (even with close British cooperation), it can then be used with relative impunity in the British courts.

One might presume that it should not be too difficult to work out which countries have a reputation for using torture, and that the British government therefore should know what — and whom — to avoid, but this presupposes that we are less intimately involved in the process than we actually are, in a number of countries, which include not only Pakistan and Morocco, but also Bangladesh, Egypt and the United Arab Emirates.

As a result, it appears that David Miliband’s entire outing on Tuesday — beyond placating China by complaining once more about Bermuda’s recent acceptance of five innocent Chinese prisoners from Guantánamo — was designed to preserve the veil of secrecy that enables the British government, both at home and abroad, to continue using evidence obtained through torture (and in some cases with active British participation), even though it is unreliable and morally corrosive, and in spite of the government’s best efforts to pretend that its actions are not illegal.

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.