Clive Stafford Smith: Britain’s omertà on torture is a crime

David Miliband claims the UK is bound by a pledge of confidentiality to the US not to discuss shared intelligence on terrorism. On the contrary, says Binyam Mohamed’s lawyer. If it relates to the violent abuse of suspects, to suppress it is illegal

There has been much ado of late about the horrific abuse of Binyam Mohamed, the British resident held in Guantanamo Bay. First, he was tortured in Pakistan at the behest of the American authorities – sleep deprived, brutally beaten, hung from the ceiling in the strappado position (with an appropriate nod to the Spanish Inquisition), and threatened with rendition to an unpleasant Arab country where his treatment would be even worse. Fulfilling this promise, the CIA duly rendered him to Morocco, where his tormentors took a razor blade to his penis over 18 months.

In due course, the CIA picked up the husk that remained, and carried him to the “Dark Prison” in Kabul for another five months of the third degree. After a spell in Bagram air base in Afghanistan, he was shuttled to Cuba, where he has spent the past four years in a concrete cell, divorced from the rule of law.

It has been my privilege, as a lawyer with the UK charity Reprieve, to represent Binyam. We hope to have him home within the next 48 hours, but that will merely be the next chapter in his story. Torture cannot simply be swept under the rug as an embarrassing secret that governments would rather forget.

In 2005, I spent three draining days across a table from Binyam in his Guantanamo gaol, noting down his torture diary. “You’ll have to fill in the emotion,” he told me. “I’m kinda dead in the head.” Every essential of Binyam’s story has been corroborated. We have slowly dragged the torture documentation from unwilling govern-ments on both sides of the Atlantic. Yet virtually none of these documents have been made public. The skeletal chronology that I am permitted to sketch out here comes from the fragments made public so far.

Binyam was arrested on a passport violation on 10 April 2002. On 17 May 2002 a British agent came to see him in Pakistan, allowed in by the American abusers. Agent B, as he has been dubbed, encouraged Binyam to co-operate with his captors, and assured him that the British would look into his case. What Binyam did not know when Agent B offered him an amicable cup of tea was that the Americans had already shared a number of documents with the British. These included admissions by American agents that they were torturing Binyam. Yet Agent B did not even ask him how he was being treated. Binyam was then rendered to Morocco.

He told me that his darkest point came one morning in Morocco. For the four months after Agent B’s visit, he waited for the British cavalry to appear. It was a mirage. Marwan, his Moroccan torturer, came into the interrogation room with questions and photographs that had clearly been provided by the British.

At that moment, Binyam knew his abandonment was complete. The British were supplying information that was being used to torture him. Indeed, nobody in the British government would whisper a word about his torture for six years until they were forced to when we sued them in a British court.

The current government excuse for keeping the American interrogation documents secret is that there is an intelligence-sharing protocol that forbids the recipient to share information. While true in general, it simply cannot be applied to cover up evidence of the crime of torture. It’s like omertà, the “Mafia protocol”: if the Americans admit to torture, but object to anyone mentioning it, the British are apparently required to keep quiet.

This cover-up merely provokes more questions. One, does the Government rely on the Mafia protocol to justify silence as to when they first learnt of Binyam’s torture? If they had complained in May 2002, they could have saved him from two years of the most savage abuse.

Two, we now know that Binyam was telling the truth when he said the Moroccans tortured him using British intelligence. Documents quoted in court reveal that in October and November 2002, months after they learned of Binyam’s torture, the British shared intelligence with the US – background information, questions to be asked of him and photographs to be shown to him. The Americans passed this material on to the Moroccan secret service. So does the protocol only work one way? Or did the British authorise the intelligence-share with the Moroccan torturers?

Three, since when can the US and the UK come to an informal arrangement to ignore the criminal law? Section 52 of the International Criminal Court Act of 2001 provides that a prosecution can be brought against a person who “assists in concealing” a war crime such as torture. Thus, suppressing the evidence is an independent crime. The idea that there really is, or should be, a Mafia protocol is simple nonsense. Not only may the British government publicise evidence of torture received from a foreign source, it is legally obliged to do so.

The fact that British intelligence was being used by torturers doesn’t in itself prove that the British knew torture was going on. But, given what we now know, they are at best pleading guilty to an unbelievable lack of curiosity. The Foreign Secretary, David Miliband, has worked admirably hard to secure Binyam’s release from Guantanamo Bay and should be congratulated for his genuine commitment. But such goodwill is put at risk if the Government continues to suppress evidence of torture.

The goodwill secured by President Obama, too, may be put in jeopardy by sticking to his predecessor’s plan, in arguing that prisoners held in the Bagram air base have no right to petition the courts for review of their detention. Bagram is to remain another lawless enclave.

In the week we welcome Binyam back to Britain, we should remember that, instead of 242 prisoners in Guantanamo, there are to be 1,100 prisoners held beyond the rule of law in Bagram, and many thousands more, in Iraq, Djibouti, the prison ships and even Diego Garcia, or held by US proxies in Jordan, Egypt and Morocco.

Obama should perhaps be offered more than a month to get the American house in order. Nonetheless, it is far too early for human rights advocates to stand on the USS Abraham Lincoln and announce, “Mission accomplished.”

Clive Stafford Smith is the director of Reprieve, the UK legal action charity ( www.reprieve.org.uk)