UK Detainee Inquiry Report details Britain’s involvement in US torture and rendition programs

Across the pond, London has been politically rocked by the release of a report (full text) by an official inquiry into whether UK agents were involved in US torture and rendition programs following 9/11. The report was produced by a panel led by retired senior judge Peter Gibson. The panel reviewed 20,000 documents, the vast majority of which were reportedly highly classified.

In introducing the report before Parliament earlier today, Cabinet Member Kenneth Clarke stated, “while we accept that intelligence operations must be conducted in the strictest secrecy, we also expect there to be strict oversight of those operations to ensure that at all times they respect the human rights that are a cornerstone of this country’s values.”

We will have further coverage of the report on this blog, including by Just Security’s Shaheed Fatima. In the meantime, the full text of the UK Detainee Inquiry Report is available here. And some of the most important excerpts of the Report are enclosed below.

The Parameters of the Report

1.30 The Justice Secretary’s statement of 18 January 2012 set out what the Government has now asked the Inquiry to do. In the Report the Inquiry does not find facts or make recommendations or draw conclusions. Any findings, recommendations or conclusions it might have made could only be based on the documents thus far received. Those documents would not have been explained through witness statements or tested in oral evidence, as it has not had the benefit of taking evidence from any witness from whom it intended to hear. Further, the Inquiry would not wish to say anything which might prejudice the police investigations and the work of a future Inquiry. Instead, as the Justice Secretary requested, the Inquiry has highlighted themes and issues that it thinks may merit further examination. It has done this by raising questions, based on the documents it had before it. It is not in any position to answer those questions. It has had regard to the points taken by those of the detainees whose cases in the actual or contemplated litigation against the Government were settled. However, the fact that themes and issues have been identified is not an indication of how the questions raised would have been answered by the Inquiry. It will be for a new Inquiry to decide whether to examine all or any of those themes and issues.

3.13 In their 2007 Report on Rendition, the [Intelligence and Security Committee] concluded that the Agencies should always have sought assurances on detainee treatment when sharing intelligence with the US which might have resulted in the detention of an individual subject to the Presidential Military Order of November 2001. The Report concluded that, following the revelations about mistreatment at Abu Ghraib in April 2004, the Agencies properly and routinely sought assurances on humane treatment in operations where there was a risk of rendition and/or US custody. The ISC also noted that where, despite obtaining assurances, there remained a risk of mistreatment, the procedure required approval to be sought from senior management or Ministers. The ISC recommended that ministerial approval be sought in all such cases and the Government responded by confirming that, in practice, this already happened.

3.14 The 2010 Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas (‘2010 Consolidated Guidance’) now instructs personnel to consider obtaining assurances from liaison partners “as to the standards that have been or will be applied in relation to that detainee” to minimise any risk of mistreatment.

3.15 Documents received by the Inquiry suggest a number of instances, before the 2010 Consolidated Guidance was published, where this issue appears to have arisen. These instances range from not seeking assurances at all, to assurances being given that might not have been sufficient or reliable in the circumstances. This issue was also noted in the ISC Report on Rendition, and by the Agencies in their own internal reviews.

3.17 Documents disclosed to the Inquiry show that the UK regarded individuals detained as a result of the international conflict in Afghanistan as Prisoners of War and that those detainees would be subject to the provisions of the Geneva Conventions, and that the policy of treating detainees in a manner “consistent” with the provisions of the Geneva Conventions was adopted by the US, subject to the caveat, that this would be the case, “unless otherwise instructed by an appropriate higher authority”. Documents disclosed to the Inquiry show that this was underlined by the US authorities throughout 2002, when it was made clear that detainees should be treated humanely and to the extent appropriate and consistent with military necessity in a manner consistent with the principles of the Geneva Conventions.

3.22 In June 2006, the US Supreme Court ruled in Hamdan v Rumsfeld that Common Article 3 did apply to detainees detained in CIA-run prisons as well as those detained at Guantanamo, and thus ruled the US policy up to that date unlawful. It was in response to this judgment that the US Department of Defense (DoD) directed the application of Common Article 3 to all DoD facilities, including Guantanamo, on 7 July 2006. In contrast, the UK considered the full protections afforded by both Conventions as applicable from the outset of the conflict.

3.23 Documents received by the Inquiry indicate that this issue arises in a number of instances where detainees were interviewed by UK personnel, who encouraged detainees to co-operate and warned that failure to do so could result in negative consequences. A number of detainees have also made allegations about these tactics, which they perceived as threats.…

4.16 …  [T]he documents received by the Inquiry suggest that the Agencies may have been involved in some instances of US renditions or post-rendition liaison where the appropriateness of such involvement may be open to question and/ or where the involvement may have lacked ministerial approval. The documents include instances where the UK may have had an obligation or right to object to the rendition but, at least on the face of the documents, no UK objection was raised. Some issues similar to these were raised in the Agencies’ own internal reviews.

4.20 … [D]id the Agencies take sufficient account of concerns or potential concerns about detainee treatment in countries to which detainees had been rendited? In a number of instances where the documents indicate that there was some level of UK approval for, or assistance in, a rendition operation by a third country, or the feeding-in of questions afterwards, the renditions or proposed renditions were to countries where there were objective grounds for concern about the receiving country’s standards of detainee treatment. In some cases, the UK Courts would not at the time have permitted the UK to deport suspected extremists to those countries because of the risk of mistreatment contrary to Article 3 of the European Convention on Human Rights.

4.21 In addition to the above, there are serious allegations of UK involvement in rendition in relation to the two Libyan nationals, Abdel Hakim Belhadj (aka Abdullah Sadeq) and Sami Al Saadi (aka Abu Mundhir). Their allegations of rendition to their country of origin are now the subject of a police investigation. These would plainly require investigation. …

 

Chapter 5. Guidance and training:

The documents provided to the Inquiry raise questions concerning the following issues, that in 2002:

• Officers were advised that, faced with apparent breaches of Geneva Convention standards, there was no obligation to intervene;

• Officers were also advised that such conduct should only be raised with the detaining authority “if circumstances allow”;

• A more forthright condemnation of the reported methods of interrogation used against the detainee was not passed to US officials in any event; and

• Officers were not advised to cease any interview immediately if they felt that the detainee was not being treated in accordance with the appropriate standards.

7.6 The documents received by the Inquiry indicate that in some instances UK intelligence officers were aware of inappropriate interrogation techniques and mistreatment or allegations of mistreatment of some detainees by liaison partners from other countries. Many of these instances were reported to Agency Head Offices. The Inquiry would have wished to examine whether that reporting was adequate and, in particular, whether the Agency Head Offices then responded adequately or, in some cases, at all. There is an issue as to whether the Agencies raised allegations of mistreatment of detainees with liaison partners with sufficient vigour, and as to the adequacy of assurances sought by the Agencies. In some cases, documents indicate that the Agencies continued to engage with liaison partners in relation to individual detainees where treatment issues may have justified withdrawal or the seeking of appropriate assurances.

 

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.