MI5 criticised for role in case of torture, rendition and secrecy

· MI5 criticised for role in torture case
· UK intelligence agent questioned about alleged war crimes

• Richard Norton-Taylor
• The Guardian,
• Friday August 22 2008
• Article history

Binyam Mohamed, a UK resident held in Guantánamo Bay. Photograph: PA

MI5 participated in the unlawful interrogation of a British resident now held in

Guantánamo Bay, the high court found yesterday in a judgment raising serious questions about the conduct of Britain's security and intelligence agencies.

One MI5 officer was so concerned about incriminating himself that he

initially declined to answer questions from the judges even in private, the judgment reveals. Though the judges say "no adverse conclusions" should be drawn by the MI5 officer's plea against self-incrimination, they disclose that the officer, Witness B, was questioned about alleged war crimes under the international criminal court act, including torture. The full evidence surrounding Witness B's evidence, and the judges' findings, remain secret.

The MI5 officer interrogated the British resident,

Binyam Mohamed, while he was being held in Pakistan in 2002. Mohamed, 30, an Ethiopian national, was later secretly rendered to Morocco, where he says was tortured by having his penis cut with a razor blade. The US subsequently flew him to Afghanistan and he was transferred to Guantánamo Bay in September 2004 where he remains.

In a passage which appears to contradict previous assurances by MI5, Lord Justice Thomas and Mr Justice Lloyd Jones concluded: "The conduct of the security service facilitated interviews by or on behalf of the United States when [

Mohamed] was being detained by the United States incommunicado and without access to a lawyer." They added: "Under the law of Pakistan, that detention was unlawful."

Asked last month about unrelated allegations involving

detainees held in Pakistan, the Home Office said on behalf of MI5: "All security service staff have an awareness of the Human Rights Act 1998, and are fully committed to complying with the requirements of the law when working in the UK and overseas."

It added that the security and intelligence agencies "do not participate in, solicit, encourage or condone the use of torture or inhumane or degrading treatment".

In their ruling yesterday, the judges found that MI5 "continued to facilitate" the interviewing of

Mohamed at the behest of the US even after he was secretly flown out of Pakistan. It did so, they said, by providing information to America although its officers "must also have appreciated" he was being detained and questioned in a facility which was "that of a foreign government". That government is believed to be Morocco.

The judgment contains two particularly stinging passages. The judges said Witness B worked with the US "to the extent of making it clear to [

Mohamed] that the United Kingdom government would not help [him] unless he cooperated fully with the United States authorities". They added: "The relationship of the United Kingdom government to the United States authorities in connection with [Mohamed] was far beyond that of a bystander or witness to the alleged wrongdoing." Mohamed is due to be tried for terrorist offences before a US military commission in Guantánamo Bay as a result of confessions he says were extracted by torture. He faces the death penalty if found guilty. Without information held by the British government, he could not have a fair trial "as he will not be able to try to establish the only answer he has to the confessions - namely that they were involuntary and abstracted from him by wrongful treatment", the judges said.

Richard Stein, of Leigh Day,

Mohamed's lawyer, said outside the court that the government was clearly committed to a fair trial and opposed to the practices of torture and extraordinary rendition. He added: "However, unfortunately when faced with the choice between the rule of law and upsetting its allies the Americans, it waivers in this commitment".

David

Miliband, the foreign secretary, has provided the US with documents about the case, though the US has so far refused to release them. Miliband has declined to release further evidence about the case on grounds of national security, arguing that disclosure would harm Britain's intelligence relationship with the US.

The judges will decide which documents about the case must be released after a private court hearing next week.

A Foreign Office spokesman said the implications of the judgment were being considered very carefully. He added: "For strong reasons of national security, to which the court accepted we were entitled to give the highest weight, we could not agree to disclose this information voluntarily."

Clive Stafford Smith, director of Reprieve, the legal rights group also defending

Mohamed, said: "The British government may have been accused of being Bush's poodle, but the British courts remain bulldogs when it comes to human rights."

Senior security sources said last night that the judgment was being carefully looked at to see whether changes should be made in MI5's procedures.

They added that the court recognised that

Mohamed in 2002 was regarded as someone potentially significant. "Talking to people who could provide life-saving intelligence is MI5's bread and butter," they said.