Concern mounts over rising number of detainees and legality of transferring prisoners to Afghan intelligence service
British military detention operations in Afghanistan are coming under increasing scrutiny in the UK courts, as the number of prisoners continues to grow and concern mounts that men handed over to the Kabul government are facing severe mistreatment.
The high court is to be asked to rule on the legality of transfers to the Afghan intelligence service, the National Directorate of Security (NDS), whose use of torture has been the subject of complaints by the United Nations as well as Afghan and international human rights groups.
The British military is feeling increasingly hamstrung in dealing with captured Taliban suspects, who can be held only for 96 hours unless a UK government minister signs an order permitting 30 days' detention for questioning.
Criticisms from human rights groups and judgments in the UK courts have prevented the transfer of prisoners to NDS facilities, where torture has been well documented, while detainees cannot be handed over the US military as they would face indefinite detention without trial, which could also be challenged in the UK courts. Other Nato forces have also halted transfers to the NDS or Afghan police.
The Guardian has learned that the British military is continuing to co-operate closely with the NDS when interrogating detainees at a prison at the British base at Camp Bastion in Helmand province.
Many Taliban suspects know they will be released after 30 days: if they have not disclosed information sought by their interrogators by around the 24th day, the NDS will be invited to take over the interrogation.
British military sources say interrogations of their prisoners are closely monitored to ensure no abuse occurs – but critics point out that the NDS then knows the identity of prisoners, the vicinity where they were captured, the day they are due for release, and the questions they have failed to answer.
The number of people being detained by British forces in Afghanistan has been rising steadily, despite claims that the tempo of operations is easing. Up until the end of 2008, 479 suspected insurgents or drug offenders had been detained. The Ministry of Defence says that some 875 people were detained during 2010, a figure that rose to 1,123 last year.
The MoD added that it had invited NDS officers to conduct 12 "evidential interviews" with detainees in British custody last year, as part of an attempt to gather enough evidence to bring the men before a court.
The MoD has not disclosed whether any of these individuals were subsequently handed over to the Afghan authorities.
Next week Public Interest Lawyers, the law firm that fought for a public inquiry into the death of Baha Mousa, the Iraqi hotel receptionist tortured to death by British troops in 2003, will ask the high court for permission to proceed to a judicial review of the transfer of detainees to the NDS.
The practice of inviting NDS interrogators to question British prisoners is also likely to face challenge. "Such close co-operation with known torturers is morally unsettling and legally questionable," said Daniel Carey, a solicitor with the Birmingham-based firm.
"But the immediate question is whether this practice places UK-captured detainees outside the high court-mandated prisoner monitoring regime."
The British military has ceased transferring prisoners to the NDS facilities at Kabul and Kandahar, but has continued to hand them over to the NDS base at Lashkar Gah, the capital of Helmand, from where some have been transferred on to Kabul, according to a report published by the United Nations last year.
Earlier this year, a joint report from the Afghan Independent Human Rights Commission and the Open Society Foundations, the human rights group founded by George Soros, said the NDS is alleged to be operating an underground facility at Lashkar Gah where torture victims could be concealed from British monitors. These were "credible allegations", the report said.
In a connected legal action, the London law firm Leigh Day is seeking compensation for a 24-year-old farmer, Serdar Mohammed, who alleges that he was beaten and deprived of sleep after being detained by British troops while irrigating his fields in April 2010. Mohammed was transferred to a second British detention facility where he says his light was kept on all night and that he was kept in a highly air-conditioned room with little clothing.
However, after the British army handed him over to the NDS at Lashkar Gah, Mohammed was hooded and put on an aircraft to another prison, where he says he was tortured by Afghan interrogators who insisted that the British would not have detained him had he not been with the Taliban.
The MoD has told Mohammed's lawyers that British officials who subsequently visited him saw marks that supported allegations of torture. Those lawyers are also seeking permission for a judicial review of the lawfulness of his transfer.
Mohammed is now serving a 16-year prison sentence after being convicted of being a member of the Taliban, on the basis of a confession to the NDS.
The scrutiny of UK detention operations in Afghanistan follows years of legal action on behalf of men held by the British military in Iraq. More than a 140 former detainees say they suffered severe abuse after being detained by British forces in the south-east of the country between 2003 and 2008, while litigation following the death of Baha Mousa led to a public inquiry where it was disclosed that a number of other men had died in British custody, some of them allegedly murdered.