Clive Stafford Smith

Torture cover-up continues

on 20 November 2009


In the government's desperate commitment to cover up British complicity in torture, the drip-drip-drip of evidence seeping out continues. The sixth opinion released by the high court in the case of Binyam Mohamed gives us another insight into the government's bizarre notion of the threat to national security that compels secrecy.

Today, the two judges reluctantly complied with David Miliband's demand that certain evidence of torture should remain secret, at least pending the government's appeal. They were nonplussed, however, at the foreign secretary's insistence that they redact one particular passage in their judgment.

It comes verbatim from an August 1, 2002, memo from one Bush administration official (Jay Bybee, of the Department of Justice) to another (John Rizzo, of the CIA). Keeping this secret is particularly odd since the memo in question, an analysis of the supposed legality of "enhanced interrogation techniques" applied against terrorist suspect Abu Zubaydah, has already been released by the Obama administration in its 18-page entirety.

Why does the British government insist on classifying that which the US government has already released?

Reading between the lines of the judges' opinion, the answer lies in the fact that the torture used against Zubaydah must also have been used against British resident Binyam Mohamed, under the same twisted legal rationale.

I have had a copy of the infamous Bybee memo for months, and this allows us to consider which of the "enhanced interrogation techniques" the British government would rather keep under wraps. As identified by Bybee, the 10 techniques are:

"(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard."

Because the solicitous CIA agents did not have the "specific intent" to inflict permanent physical pain or mental derangement, Bybee suggests that "the use of these methods separately or [as] a course of conduct" does not constitute torture. The provision of this helpful advice was no doubt one reason why President Bush later promoted the loyal Bybee to life tenure as a federal appellate judge.

It is worth considering what each of these Bush-isms really means. "Waterboarding" is by now a relatively well-known technique, but in Bybee's opinion it did not rise to the level torture. This flew in the face of venerable precedent: The Spanish Inquisition called it tortura del agua (water torture).

The idea of the "confinement box" is to figure out the prisoner's deepest arachnid phobia, and then lock him up in a dark space with enough insects to induce the maximum fear. This was OK in the case of Zubaydah, apparently, because despite his near-fatal injuries, "he remain[ed] quite flexible" – so it was OK to cram him into a coffin with some creepy-crawlies.

Sleep deprivation is also OK, as it does not cause physical pain (though it can cause death after 10 days or so). Slamming him into a wall does not really hurt; neither does a little happy-slap, as the agents are advised to keep their fingers spread, and only strike the fleshy part of the face. And so it goes on.

Bybee finds comfort in the fact that Zubaydah had no "pre-existing mental condition or problems that would make him likely to suffer prolonged mental harm from [the CIA's] proposed interrogation methods." If this was so, then the process must have been exceptionally effective at breaking him down: Zubaydah is now apparently little more than an ambulatory bundle of mental health disorders. This transformation may have contributed to the Obama administration's decision not to charge him in the New York trials announced last week.

So how many of these horrors does the British government want to cover up in the case of Binyam Mohamed? I have the advantage over you all, as I have seen the classified evidence in the US. I am bound by these secrecy rules, and I am not going to violate the law. But I do wonder what truly motivates Miliband to keep these crimes secret.

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