What Britain is now doing. Let’s not be under any illusions about a Tory Minister allegedly looking into torture by a previous government – after all, major parties in most democracies usually protect the other from serious investigations into foreign policy issues – but such events aren’t happening in the US or Australia:
The judicial inquiry announced by the foreign secretary into Britain’s role in torture and rendition since September 2001 is poised to shed extraordinary light on one of the darkest episodes in the country’s recent history.
It is expected to expose not only details of the activities of the security and intelligence officials alleged to have colluded in torture since 9/11, but also the identities of the senior figures in government who authorised those activities.
William Hague‘s decision follows a series of reports in the Guardian and other media over the last five years about the manner in which British intelligence officers were told they could interrogate terrorism suspects they knew were being tortured, and the way in which that secret policy was used in effect to subcontract torture to overseas intelligence agencies.
There has also been a steady drip of disclosures about the way in which British territory, airspace and facilities have been used during America’s programme of extraordinary rendition and about orders that led to British special forces in Iraq handing over detainees to US forces, despite fears they were to be tortured.
Finally, the British army has been forced to admit that at least eight people died in its custody in Iraq, including a number who were being interrogated using illegal techniques including hooding.
Those who have been most bitterly resisting an inquiry – including a number of senior figures in the last government – may have been dismayed to see the Conservative-Liberal Democrat coalition formed, as this maximised the chances of a judicial inquiry being established.
Last autumn the Lib Dems passed a conference resolution calling for an inquiry, while a number of Tory backbenchers have been putting pressure on the leadership to establish an inquiry.
When a more detailed announcement is made, the human rights groups, MPs and lawyers who have been demanding an inquiry will want to ensure that it satisfies their calls for an effective and, as far as possible, transparent investigation.
Isabella Sankey, director of policy at Liberty, said: “The new government is to be congratulated on this hugely significant announcement, which represents a real break from the past. This investigation must leave no stone unturned.”
Sara MacNeice, terrorism and security campaign manager of Amnesty International UK, said: “We would welcome an inquiry into UK complicity in torture overseas. Any inquiry must be thorough, independent and impartial. The findings should be made public and those responsible for abuses must be held to account.” Philippe Sands QC, professor of law at University College London, said the inquiry should have happened long ago. “To restore trust in government, both here and abroad, and to get to the truth the inquiry needs to be deep and broad and as open as possible,” he said.
“It should address in particular who authorised what and when and why, what the relevant legal advice said, and how it related to any change in US practice in 2002 and 2003.”
The inquiry will also need to consider how it can offer immunity from prosecution to witnesses who testify before it.
Although there is little provision in international law for immunity being offered to those who have been complicit in torture, the inquiry may need to reassure some witnesses that they will not incriminate themselves. It may even be that the MI5 officer known as Witness B, currently at the centre of a Scotland Yard investigation, could benefit from an immunity deal. To establish the full truth, the inquiry will need to discover:
• Who authorised the bilateral agreements with the US, signed three weeks after the 9/11 attacks under article V of the North Atlantic treaty, that led to the UK offering logistic support for the CIA’s rendition programme of kidnap and torture.
• Whether any other such bilateral agreements were signed that led to human rights abuses during the so-called war on terror.
• Who drew up, and who authorised, the secret interrogation policy, transmitted in January 2002 to all MI5 and MI6 agents in Afghanistan, telling them they could interrogate people who were being tortured, as long as they did not participate and were not “seen to condone it”.
• How was that policy further developed in mid-2004, why and by whom.
• Which ministers authorised these policies.
• What Downing Street knew about the torture of the British resident Binyam Mohamed, and about the torture in Pakistan and elsewhere of several British citizens suspected of planning terrorist attacks since 2001.
• What the last foreign and home secretaries, David Miliband and Alan Johnson, knew about the UK’s involvement in torture and rendition, what they did – and critically, what they may not have done – in an attempt to bring it to an end.
The inquiry will also be under pressure to publish the interrogation policy as it has stood since mid-2004 – even though Miliband said last year that this could never be done as it would “give succour” to the country’s enemies.
It will also want to examine any drafts of that policy, which could also have been used to govern the conduct of British intelligence officers interrogating detainees held overseas. Also relevant to the inquiry will be the transcripts of a number of court hearings held in camera, including part of the civil proceedings brought on behalf of Mohamed, and the criminal prosecutions of two terrorists. After learning what had been concealed by the use of courtroom secrecy at the trial of a man who lost a number of fingernails after being detained and questioned in Pakistan at the suggestion of British authorities, David Davis, the former shadow home secretary, told the Commons: “I cannot imagine a more obvious case of the outsourcing of torture.”