New interrogation policy faces early legal challenge

Ian Cobain, The Guardian, 12 July 2010 Lawyers acting for Iraqi civilians threaten judicial review over failure to ban hooding

The government's new interrogation policy for intelligence officers is facing its first legal challenge, less than a week after it was published as part of David Cameron's attempts to signal a clean break with the counter-terrorism practices of the preceding Labour administration.


Lawyers representing dozens of Iraqi civilians who were detained and allegedly mistreated by British troops following the invasion of Iraq are threatening to embark on judicial review proceedings because the new guidelines fail to outlaw hooding.


The guidelines, which govern the conduct of MI5 and MI6 officers and members of the military when questioning detainees held overseas, were published last week at the same time that the prime minister announced the establishment of an inquiry into the UK's role in torture and rendition since 2001.


They distinguish between torture and examples of cruel, inhuman or degrading treatment, and say that only a serious risk of the latter should force UK personnel to abandon an interrogation while senior officers take legal advice and consider whether to consult government ministers.

Most of the individuals currently suing the government over its role in their mistreatment during the so-called war on terror were hooded at times, while large numbers of Iraqi civilians complain that they were routinely hooded while being questioned. One detainee, Baha Mousa, died after being hooded and savagely beaten by British troops.


One of the lawyers threatening proceedings, Phil Shiner, said: "What the British public thought they were getting was a fresh start. What we have got amounts to a charter for the use of hooding. It is extremely concerning that these are the standards that our intelligence services have been adopting. It amazes me that the lessons of Baha Mousa's death still haven't been learned."


There was no immediate response from the government to the threat of a legal challenge.


Today , in an allied action, Shiner's firm, Public Interest Lawyers, won permission for a judicial review of the British military's detention policies in Iraq. The firm says the abuses they have recorded include 59 complaints of hooding and 131 separate complaints of the use of blackened goggles, which they say shows that sight deprivation has been used systematically as a British torture technique.


The Ministry of Defence issued a clear ban on hooding in 2006, as a result of the Mousa case; the interrogation policy published last week on Cameron's orders appears to have rescinded that ban. "It's clearly a backward step," said Daniel Carey of Public Interest Lawyers.


The interrogation policy has had a troubled history. One set of guidelines issued to MI5 and MI6 officers shortly after the September 2001 al-Qaida attacks allowed them to question people whom they knew were being tortured, as long as they did not participate and were not "seen to condone it". In a number of well-documented cases, this advice facilitated torture.


These guidelines were revised in 2004 but ministers of the last government refused to publish them, with David Miliband, the former foreign secretary, warning that to do so would "give succour" to the nation's enemies. Sixteen months ago, Gordon Brown ordered that the document be rewritten, but failed to honour his pledge to publish it after being warned that, even in its revised form, the document could be used to arrange for individuals to be tortured.


Last week, Cameron told MPs that the new guidelines were intended to ensure that British intelligence officers never took any action that they believed would lead to an individual being tortured. "Just as we are determined to resolve the problems of the past, so are we determined to have greater clarity about what is and what is not acceptable in the future," he said.


However, leading legal experts have already warned that the 15-page guidance published on Cameron's instructions last week contains a number of serious loopholes that could effectively be used to facilitate torture.


Philippe Sands QC, a professor of international law, pointed out that the guidelines address the interrogation of detainees at risk of torture, but not the questioning of individuals who have just been tortured.


Many of those who allege that the UK was involved in their torture overseas say they were questioned at the end of long sessions, sometimes being questioned by UK officials just once after being tortured for up to two months.


Sands also pointed out that the new guidelines do not make clear that complicity in torture is prohibited under Article 4 of the UN Convention Against Torture, an omission that could put British officers who comply with the guidance at risk of prosecution in the future.