residents for rendition; it was we who provided information that could be and was used in conditions of torture; and it is we who have received the product.
Torture is the deliberate infliction of pain by a state on captive persons. It is prohibited and so is the use of its product. The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment emphasises that there are no exceptional circumstances at all justifying its use, whether state of war or threat of war or any other public emergency; none of these may be invoked as a justification. Orders from superiors are explicitly excluded as a defence, and moreover the Convention requires that wherever the torture occurred and whatever the nationality of the torturer or victim, parties must prosecute or extradite perpetrators to a country that is willing to prosecute them.
Whatever its position in respect of denying knowledge of the Moroccans’ treatment of Binyam Mohamed or of the most extravagant atrocities in Pakistan, the UK will undoubtedly try to remove itself several steps further from any knowledge of what has been done in secret sites by the US. But the tortures of which it is impossible that UK officials were not aware, those which have across the board characterised US treatment of prisoners in Afghanistan and Guantánamo, belong to families of torture descended from Western European and particularly British military punishments. Those who have categorised these things place them in the ‘lesser’ tradition of stress torture; not because they are less painful, but because they leave less of a visible mark. Prolonged restraint in almost any position will produce agonising muscle pain. To be compelled to stand without movement for twenty-four hours causes ankles and feet to swell to twice their size. After that, to move is to be in extreme pain; large blisters develop, the heart rate increases, many people faint, and eventually the kidneys shut down. Prisoners suspended by the wrists have their feet touching the ground so that the weight is shared between wrists and feet, but this serves only to increase the time prisoners may be suspended, extends the pain and delays the emergence of permanent injury. That matters in what is known as stealth torture. It was in Mandate Palestine that British soldiers and police after 1938 subjected prisoners to suspension, forced standing, forced sitting and choking with water, and exposure to extremes of heat and cold. These tortures left no visible trace and could safely be denied. Today the interrogation style of the Israeli GSS—called ‘shabeh’ by its victims—continues to draw on the same techniques and on those used by the British in Northern Ireland. They include sleep deprivation, positional tortures, exhaustion exercises, exposure to extremes of temperature, the use of noise, and ‘chair’ torture. It is from these and their predecessors that the Americans have drawn for the last seven years.
In 1997, Nigel Rodley, then the UN special rapporteur on torture, very specifically reaffirmed his condemnation of these methods as torture:
Each of these measures on its own may not provoke severe pain or suffering. Together—and they are frequently used in combination—they may be expected to induce precisely such pain or suffering especially if applied on a protracted basis of, say, several hours. In fact, they are sometimes apparently applied for days or even weeks on end. Under those circumstances, they can only be described as torture.
Since these have been the techniques most repeatedly deployed since 2001 on US sites where we know British personnel have been present, we need to establish that our government acknowledges that they are indeed torture. All have been described in detail by those British detainees who have returned from Guantánamo, and yet their testimony has been disregarded by those in government departments whose job it is to know. We had no difficulty understanding that these methods were torture when our enemies used them: during the Second World War we had no difficulty comprehending that the ordeal of British POWs forced by the Japanese to stand for days in a tin hut in the brutal heat was a war crime; and we recognised that in Stalin’s gulags standing and sitting while being deprived of sleep was torture too. And yet Britain still, in 2009, appears to have the greatest difficulty in admitting that what was done routinely in Afghanistan and at Guantánamo Bay was torture, and even greater difficulty in admitting that we knew all along that it was happening. By the summer of 2002, White House lawyers were listing techniques that they considered would not constitute torture under the Federal Torture Act, among them forced standing, hooding, deprivation of food and drink, the ‘frog crouch’, the Israeli shabeh, and extreme noise.
And yet we of all nations must have immediately recognised these techniques for what they are and must have known that they were prohibited, since we were disgraced for employing them by the European Court less than thirty years ago. In August 1971 British soldiers arrested 342 men in Northern Ireland claiming that they were IRA suspects. To force their confessions, twelve of them were taken to a secret site and subjected to the now notorious five techniques (forced standing, hooding, sleep deprivation, starvation and thirst, and white noise). Most of the men later reported experiencing auditory hallucinations; the interrogators referred to the room used for noise as the ‘music box’, and were aware that the detainees were exhibiting distorted thought processes. The Republic of Ireland took the UK to court in Strasbourg for their use of these methods and Britain gave an unconditional promise never to use them again. And yet since November 2001, knowing that these techniques were being adopted (and even enhanced) in Britain’s joint operations with the US, our ministers, ministries and intelligence personnel have behaved as if a blind eye could lawfully be turned while at the same time availing themselves of the same sites and sharing the product of those illegal methods.
In official advice, sent in January 2002 to MI6 personnel in Afghanistan concerning their own interrogations of detainees held by the US, it was stated: ‘You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given that they are not within our custody or control, the law does not require you to intervene to prevent this.’ This advice was then hedged with homilies: British personnel ‘cannot be party to such ill treatment’ and should not condone it. Yet as any first-year law student knows, encouragement by any number of indicators can expose the bystander to as much criminal liability as the main perpetrator.
The Intelligence and Security Committee, quoting this advice in the first of its two inquiries into the role of the intelligence services in ‘the handling of detainees’ since 2001, nevertheless blacked out in its report what the ‘ill treatment’ consisted of. Yet this is the only body in existence with the power to inquire into and give us answers about the intelligence services. Staggeringly, not only do we therefore still know nothing of what the intelligence services actually witnessed in Afghanistan, but in each of the committee’s inquiries into their involvement or otherwise in torture, the government’s witnesses and the committee in turn appeared to miss entirely the wider legal and moral point. Instead, they focused on individual errors of judgment, even though members of the intelligence services were present during unlawful transfer and confinement: that is, in situations comprehensively meeting the definition of internationally prohibited crimes against humanity.
Equally disturbingly later in 2002, some months after MI6 sent its advice, the recently arrived British ambassador to Uzbekistan inquired urgently of the Foreign Office what its legal justification was for receiving information from Islamic dissidents who had been boiled alive to extract it. Craig Murray records his astonishment on being recalled to London to be told that Foreign Secretary Jack Straw and Sir Richard Dearlove, the head of MI6, had decided that in the ‘War on Terror’ we should, as a matter of policy, use intelligence obtained through torture by foreign intelligence services. A follow-up memo from a Foreign Office legal adviser in March 2003 explained that it was not an offence to do so. How sound was this advice legally? Morally, there is no question. But what of the encouragement to torture resulting from our enthusiastic receipt of information?
There have been no resignations over any of this. The government on whose watch it has occurred may be vulnerable for other reasons, but at present it seems not for possible complicity in grave crimes. From where does it derive its confidence? Control of information is a powerful tool: the answer must undoubtedly lie in the extent to which the secret state believes it has consolidated and can control any mechanism that might allow discovery
