On the trail of torture

UPDATE: Binyam Mohamed returned to the UK on February 23, 2009

(Published in the Sunday Times, Feb 8, 2009)
by Stephen Grey and David Leppard

Prisoner No 1458 at Guantanamo Bay, Cuba, woke up each day last week in his solitary cell and waited for the inevitable: the arrival of a team of guards to take him down the corridor in shackles to be painfully force fed through a tube.
This was not another attempt to extract a confession, but an attempt to keep Binyam Mohamed alive. The 30-year-old former resident of Notting Hill, west London, was continuing his hunger strike against what he sees as failed promises to set him free. When he last saw his lawyer two weeks ago, his arms, she said, stuck out of his 6ft body “like little thin twigs”.
Although previously accused by US authorities of plotting a terrorist attack on American soil, Mohamed has not been charged with any crime. His former military prosecutor declared a month ago that he presented no threat to either America or Britain.
After losing almost 50lb in weight, and wasting further by the day, he was probably in no state to be told or even to care that two High Court judges in London last Wednesday were appealing for the public release of “powerful evidence” that might help prove his astonishing claims of mistreatment to be true. The issues at stake, said the British judges, were nothing short of the lofty interests of “law, free speech and democratic accountability”.
Involved shocking allegations of extreme mental and physical torture at the behest of America’s CIA, it is a case that has threatened to embarrass the new administration of President Barack Obama, whose inaugural speech included a pledge to halt such activities, as well as to shed an unwelcome spotlight on what exactly the British government knew and kept secret about potential crimes committed by its closest ally.
IT was about 10pm local time on July 21, 2002, when the men in black ski masks arrived to collect Mohamed from where he was being held at Islamabad airport. They began by stripping him naked. They put him in a nappy and a tracksuit, blindfolded him and taped a mask across his mouth, he recalled.
They were a CIA paramilitary team that had come to scoop him up and place him on an executive jet used by the US spy agency to “render” terrorist suspects to and from jail cells across the world. In Mohamed’s case, his destination, where he arrived at 3.43am the following day, was the Moroccan capital, Rabat.
Though never confirmed officially by the United States, evidence that verified this “rendition” to Morocco came from the flight logs of the now notorious Gulfstream jet involved. It matched the exact details of Mohamed’s testimony. It has always been much harder to assess the truth of his account of torture that he said occurred in Pakistan before his transfer and in Morocco soon after, even if there are many who report similar treatment.
After he was first arrested in Karachi in April 2002, Mohamed said that soon after the first questions from Americans, Pakistani interrogators followed up by hanging him by a leather strap round his wrist, beating him, and threatening him with a pistol to the head. Then, when this stopped, an agent from British intelligence came to hint to him that he should cooperate or face being sent to be tortured by Arabs. When he was flown to Morocco, he said, it got worse. He was beaten savagely and at one stage his genitals were cut with razor blades.
Again there was a British connection, he alleged. A book of photographs of people at a London mosque had been shown to him, as well as searching questions posed about his life in Notting Hill. The agents called their paperwork the “British file”.
In January 2004, Mohamed said he was rendered onwards by the Americans to Kabul (again confirmed by CIA flight records). This time he was held in a covert CIA “black site” known as the Dark Prison. Inmates here were held day and night without light while being bombarded with constant loud music.
Only after a journey of more than two years between secret prisons, did Mohamed, by his account, emerge from clandestine detention to the more open but still harsh world of US military detention. And in Guantanamo, he finally got to tell his story to the British lawyer Clive Stafford Smith.
Born in 1978, Mohamed had moved to Washington DC with his family when he was young. He and his father, an Ethiopian Airlines official, then moved to London, where he lived from the age of 16 to 22.
Some time in the spring of 2001, Mohamed travelled to Afghanistan. According to later accusations (and it is not clear which, if any, charges US prosecutors still aim to pursue), he attended training at Al-Qaeda camps, went on the run after 9/11, and became a companion of a former street gangster from Chicago named Jose Padilla, or the “dirty bomber”. The pair were said to have associated with Al-Qaeda leaders such as Abu Zubaydah and Khalid Sheikh Mohamed and to have hatched plots to explode a devastating radioactive bomb in the US.
While Padilla was arrested in May 2002 as he returned to the US and later convicted of lesser charges, Mohamed was seized a month earlier in Karachi when trying to board a flight to Europe using a false passport. With American intelligence alerted, his journey through the system began.
During his detention, Mohamed made several confessions. He argued later that these were all forced out of him by torture. But with the US refusing to confirm even in court any aspect of its secret programme of rendition and detention, he, like most of its subjects, has struggled to find positive proof to document that physical abuse.
The twist in his tale came from lawsuits filed in London that in effect forced the British government, against its earlier wishes, to take up the cases of Guantanamo detainees such as Mohamed who, while legally resident in Britain, were not UK citizens. In turn, this forced the government in Mohamed’s case to reveal what evidence was held in secret British intelligence files that might be useful to prove his innocence.
After judgments last year exposed the fact that the UK was holding some secret evidence useful to Mohamed’s defence – mainly information shared with Britain by US intelligence – the US government let Mohamed’s defence team see those documents, provided that they remained secret.
Last week, however, Lord Justice Thomas and Mr Justice Lloyd Jones, took matters further, arguing that while it was not for them to order public disclosure of US secret material, particularly in the face of clear and dire “threats” by the US government to reduce intelligence-sharing with Britain if they did, there was a pressing case for the information to be revealed in public.
In the House of Commons, David Miliband, the foreign secretary, denied there were such explicit threats. But he did confirm that releasing the documents despite strong US protests would result in “real and significant damage” to Britain’s national security.
One way or another, it was a court judgment that put Obama’s White House on the spot. Despite the new president’s condemnations of the Bush administration and its promise to break with the past on issues of rendition and torture: how far was Obama willing to go in exposing the secret trail of evidence that would document the most controversial aspects of the years since 9/11? Was he willing to publish material that could help set free terrorist suspects? Or material that could result in the prosecution of CIA officers or the officials who advised them? Or would he prefer to see the whole matter left buried in a dusty but well-guarded vault?
The 42 secret documents obtained by the High Court – summarised in just seven paragraphs censored from the public judgment – were said to refer only to one part of Mohamed’s treatment, his alleged torture in Pakistan. But establishing the principle of exposing such things, some US officials suggest, could open the floodgates to exposing the secrets of rendition and secret detention.
Even just this limited material, said the judges, gave rise to an “arguable case of torture or cruel, inhuman or degrading treatment” in law. As “admissions” by US government officials about how Mohamed was treated, they could possibly be used as evidence in a criminal court.
At Thames House, the riverside headquarters of MI5, intelligence officials were understandably made jittery last week by all this attention drawn by the High Court’s judgment. It threatened to expose lingering tensions in the darker side of the agency’s “special relationship” with its American “cousins”.
While the pre-Obama CIA might have believed sleep deprivation and waterboarding were sometimes acceptable ways to interrogate prisoners, Whitehall officials were keen to point out that for Britain they were certainly not. British intelligence had a strict “no torture” policy.
However, for Mohamed’s legal team Britain’s alleged complicity in the case of their client is more subtle – but still significant.
After being told by the Americans of Mohamed’s arrest in 2002, MI5 had dispatched an officer to speak to him in Karachi, evidence in the High Court case confirmed.
Mohamed was said to have told the MI5 officer about his time in the UK. This included details of mosques he attended and how he was recruited to go to Afghanistan for terror training. He admitted he had seen a computer file in Lahore that apparently contained details of how to make a dirty bomb. But Mohamed told the MI5 officer – whom he knew as “John” – that he thought the whole thing was a joke.
“John” was clearly unimpressed. But his report back to Thames House may well come back to haunt him.
“I told [Mohamed] that he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this would depend to a very large degree on his level of cooperation.
“I said that if he could persuade me he was telling the complete truth I would seek to use my influence to help him . . . I said it must be obvious to him that he would get more lenient treatment if he cooperated.” Shortly after the interview Mohamed disappeared into the CIA’s rendition programme.
This weekend, amid rumours in Westminster that the police might now be called in to investigate MI5, senior Whitehall officials admitted that “John’s” report could present MI5 with difficulties. Under the 1988 Criminal Justice Act it is illegal for British officials to commission or acquiesce in acts of torture anywhere in the world. The crime can be punished by life imprisonment.
Whether or not Mohamed was tortured, and whether or nor “John” was culpable, his case raises a far larger question. Despite Gordon Brown’s declarations suggesting otherwise, do the British security services use intelligence that has been obtained through torture?
In a little noticed debate in a House of Lords committee last Thursday, Baroness Eliza Manningham-Buller, MI5’s director-general between 2002 and 2007, went further than any of her colleagues in explaining the moral dilemma.
“It is pretty well impractical always to check whether something has been derived from torture unless you have reason to suspect it at the beginning,” she said.
“Literally thousands of pieces of intelligence are shared daily between the UK, our allies and people who might not so reasonably be described as our allies. I hope the minister will be able to confirm my comment on the amount of material that is going round the place and the impracticality of checking each bit for torture.”
That amounts to an admission that MI5 knows it has almost certainly used torture-stained intelligence, despite claiming it does not condone it.
It also emerged last week that none of the 42 documents unearthed by the High Court hearing about the Mohamed case had been passed to a full-scale inquiry into the practice of rendition by parliament’s intelligence and security committee in 2007. The inquiry had cleared the UK government of complicity in the US programme. Britain, the report suggested, was never told by the CIA exactly where it was holding prisoners and what techniques were being used to extract intelligence.
The chief of the Secret Intelligence Service (MI6), Sir John Scarlett, had told the committee it had never “crossed my mind” that US intelligence was coming from torture. After all, he said: “We are talking about the Americans, our closest ally.”
In their ruling last week the judges said the MPs could now use the new documents to reopen their inquiries and ask witnesses from MI6 and MI5 some “searching and difficult questions”. The conclusions of the inquiry might be different, they suggested.
In Washington the questions may be even tougher. In a US federal court hearing on rendition in San Francisco tomorrow, lawyers for Mohamed and others will hope to hear whether Obama will abandon what has so far been a blanket defence that has sunk every court case lodged on torture and rendition in American courts – namely that any court hearings on the subject would simply violate “state secrets” and should be blocked.
For Mohamed himself, none of these endless hearings seem to move him a step closer to freedom. After 2,248 days in captivity, his last words to his military lawyer as she left were: “They don’t care if I live or die.”

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