Torture: questions still hanging in the wind

The question as to what extent the UK security services were aware of or were involved in any way in torture remains very live this week as the appeal court judges reconsider their judgement in the Binyam Mohamed case.

Lawyers for Mohamed and for the New York Times and Associated Press, who brought the case originally, have been allow to respond to Jonathan Sumption QC’s (government lawyer) argument. The “new” judgement is now awaited.

In the past few days, the “people’s guardians” of the intelligence community – the body charged with oversight, the Intelligence Select Committee – has spoken in a joint statement from its two senior members, Kim Howells MP (Labour) and Michael Mates (Conservative).

They say that, as a fact, MI5 has tortured no-one and tortures no-one. They also acknowledge that M15 was “slow recognising that there had been a change in the US approach to torture” – a point also made by the boss of MI5 too.

But anyone watching Channel 4 News over the period of February 2002 could have been in no doubt. On 7 February of that year George Bush very publicly suspended the application of the Geneva convention to those picked up on or near the battle field – they were simply to be tretaed as “criminals”’.

The Geneva convention is very specific about the illegality of the use of torture. Where either non-combatants or combatants are picked up on or near the battlefield, they are protected by the convention.

The UK did NOT suspend the application of the Geneva convention. This disconnect between two allies over the convention must have sent shock waves though Whitehall. Indeed, my informant close to the FCO tells me they immediately began to work on the implications for British forces. And so they should have done.

So questions now are bearing on the foreign secretary, the defence secretary, and the attorney general of the time: Jack Straw, Geoff Hoon, and Peter Goldsmith.

Given the shift in the US position, what legal advice did Mr Goldsmith draft with regard to the use of torture and wider respect for the Geneva convention at this time, and where is it? What orders were then given to the security services at this point? And what steps did Hoon and Straw take to ensure that where there was a clash with US operatives over the use of torture, the security services knew what to do?

Underlying the Binyam Mohamed case is the big question about Britain’s relations with its ally: what kind of effort was made to detach UK security personnel from the knowledge, observation and even participation in torture which the UK continues to accept is illegal under both the UN torture treaty (to which the UK is a signed up, but which the US has never signed) and the Geneva convention, whose rules on torture are as strong?