Mr Miliband's Muddle

How has a basically decent person such as David Miliband got himself into such a muddle over torture?

Binyam Mohamed was rendered by the CIA from Pakistan to Morocco to face 18 months of torture.  As we have tried to reunite him with his legal rights, I and other lawyers at Reprieve have witnessed his declining mental and physical health.  Since the New Year, he has been on a hungerstrike, force fed in the gratuitously unpleasant process employed in Guantánamo Bay.  More than once he has collapsed from the pain. 

As his suffering dragged on towards an eighth year, last week the British judges considering litigation we brought in London ruled that the media could not have access to details of his torture.

The judges said that their silence was compelled by the Bush Administration’s “threat” to stop sharing intelligence with Britain if they revealed this evidence of criminal acts of torture .

It was then that Mr. Miliband began his indefensible remarks.  He assured us, first, that this threat was not really a threat at all, but rather merely an observation that publishing would result in “lasting damage” to Anglo-American cooperation. Indeed? Perhaps when the Gambino family points out that people who snitch on the Mafia might end up in a pair of cement shoes that is an observation rather than a threat.  

But far more troubling was the government policy he championed in Parliament: the British cannot, he said, publish secret details of torture if those who made the admissions forbid it, because such are the terms of our intelligence sharing agreement. “It is US information and it is for the US to decide when to publish their information,” he said.

In this respect, Mr. Miliband misses two rather salient facts: first, he has conflated “national security” with “national embarrassment.” It is shameful that Americans have stooped to torture, but a CIA report documenting their medieval practices is hardly equivalent to the blueprints to a Trident submarine.  This is not, in other words, the kind of secret that threatens national security – simply one that should precipitate a criminal inquiry and national self-reproof.

Congressman Bill Delahunt is a former prosecutor, and a member of the House Committee on Foreign Affairs. “Why wouldn’t David Miliband lobby the Obama administration to get this declassified?” he remarked this week. “What is he trying to hide?”

Second, when Mr. Miliband states the general rule that the UK is not at liberty to reveal intelligence coming from the US, he does not identify the clause that requires the UK to suppress evidence of torture. Again, the Mafia – and even the Medellin Cartel – might issue threats against those who would divulge evidence of their crimes, but such provisions are not generally written into intelligence sharing arrangements between nation states.

To return to the original question:  How did Mr. Miliband get in such a pickle?

The problem is that no Anglo-American agreement contemplated that the issue would ever arise.  When Felix Leiter and James Bond discussed joint operations, they assumed that the torture would be committed by SMERSH, not by the CIA or MI6.  They therefore failed to discuss what to do if Q developed a new thumbscrew gadget in his workshop. 

Mr. Miliband was therefore seemingly unprepared, and his parliamentary presentation consisted of a series of ill-judged platitudes about the need for secrecy.

There is an urgent need for some reality-based policy making.  Here, then, is the stipulation that should self-evidently be inserted into any intelligence agreement: Foreign countries must assume that evidence of a war crime will be subject to public disclosure if shared with the UK. 

Indeed, as the British judges write in their judgment, the failure to reveal such material is an independent offence: “Section 52 of the International Criminal Court Act 2001 … provides that a prosecution can be brought against a person who aids and abets a war crime (or assists in concealing a war crime) in the United Kingdom or against a United Kingdom national or resident who so acts anywhere in the world.” 

Binyam Mohamed is a British resident. The American authorities subjected him to torture, a war crime. Mr. Miliband confessed to parliament that the British government will conceal the crime.  Quod erat demonstrandum.

 Some diehard spooks argue that a policy mandating the disclosure of torture ties their hands – or, reverting to their natural habitat of hyperbole, they prefer to say that it “puts Britain at risk.”  They must, they tell us, learn confidentially that Binyam Mohamed was tortured in order to assess the reliability of the intelligence gleaned (or racked) from him. 

Have these people lost their senses?  In collaborating with a torturer, they say, we should promise to keep his crimes secret so that we can conclude that his information is useless?  This is a steep price to pay for garbage.

There are already systems in place for determining whether dubious intelligence is worthy of reliance. If the source will not identify the conditions under which intelligence was gathered, it is immediately labelled as suspect. Binyam Mohamed’s rendition illustrates the point: the Americans have never produced a single document identifying where he was for two years. Given this, MI6 should naturally have discounted any intelligence allegedly emanating from him.

Hindsight would have justified their reliance on this sensible policy, since we later learned that Binyam was “confessing” with a razor blade held to his genitals. 

On Wednesday afternoon, the All Party Parliamentary Group on Renditions held a hearing on Mr. Miliband’s mili-bind. American politicians and soldiers, and British intelligence agents, seem united in a commonsense conclusion: hiding evidence of torture is simply unacceptable.

If Mr. Miliband continues along his current path, he will re-learn the lessons of Watergate: the cover up can be more dangerous than the original crime. Darkness only disappears when it meets the light of day.

This article first appeared in the New Statesman.