Why the UK Government Can't Hold the Line: On assurances that we don't use inteligence extracted by torture.

Home Secretary Charles Clarke accepted the ruling but said it would have "no bearing" on efforts to combat terror.

He said the government did not use evidence it knew or suspected had been obtained by torture but the ruling had clarified the appropriate legal test of what was admissible.

Clarke said it was one thing to condemn torture, but more difficult to find a "practicable solution" to terrorism that also serves the public interest and occupies "the moral high ground".

CONFIDENTIAL
FM TASHKENT
TO IMMEDIATE FCO
TELNO 63
OF 220939 JULY 04

INFO IMMEDIATE DFID, ISLAMIC POSTS, MOD, OSCE POSTS UKDEL EBRD LONDON, UKMIS GENEVA, UKMIS MEW YORK

SUBJECT: RECEIPT OF INTELLIGENCE OBTAINED UNDER TORTURE

SUMMARY

1. We receive intelligence obtained under torture from the Uzbek intelligence services, via the US. We should stop. It is bad information anyway. Tortured dupes are forced to sign up to confessions showing what the Uzbek government wants the US and UK to believe, that they and we are fighting the same war against terror.

2. I gather a recent London interdepartmental meeting considered the question and decided to continue to receive the material. This is morally, legally and practically wrong. It exposes as hypocritical our post Abu Ghraib pronouncements and fatally undermines our moral standing. It obviates my efforts to get the Uzbek government to stop torture they are fully aware our intelligence community laps up the results.

3. We should cease all co-operation with the Uzbek Security Services they are beyond the pale. We indeed need to establish an SIS presence here, but not as in a friendly state.

DETAIL

4. In the period December 2002 to March 2003 I raised several times the issue of intelligence material from the Uzbek security services which was obtained under torture and passed to us via the CIA. I queried the legality, efficacy and morality of the practice.

5. I was summoned to the UK for a meeting on 8 March 2003. Michael Wood gave his legal opinion that it was not illegal to obtain and to use intelligence acquired by torture. He said the only legal limitation on its use was that it could not be used in legal proceedings, under Article 15 of the UN Convention on Torture.

6. On behalf of the intelligence services, Matthew Kydd said that they found some of the material very useful indeed with a direct bearing on the war on terror. Linda Duffield said that she had been asked to assure me that my qualms of conscience were respected and understood.

7. Sir Michael Jay's circular of 26 May stated that there was a reporting obligation on us to report torture by allies (and I have been instructed to refer to Uzbekistan as such in the context of the war on terror). You, Sir, have made a number of striking, and I believe heartfelt, condemnations of torture in the last few weeks. I had in the light of this decided to return to this question and to highlight an apparent contradiction in our policy. I had intimated as much to the Head of Eastern Department.

8. I was therefore somewhat surprised to hear that without informing me of the meeting, or since informing me of the result of the meeting, a meeting was convened in the FCO at the level of Heads of Department and above, precisely to consider the question of the receipt of Uzbek intelligence material obtained under torture. As the office knew, I was in London at the time and perfectly able to attend the meeting. I still have only gleaned that it happened.

9. I understand that the meeting decided to continue to obtain the Uzbek torture material. I understand that the principal argument deployed was that the intelligence material disguises the precise source, ie it does not ordinarily reveal the name of the individual who is tortured. Indeed this is true - the material is marked with a euphemism such as "From detainee debriefing." The argument runs that if the individual is not named, we cannot prove that he was tortured.

10. I will not attempt to hide my utter contempt for such casuistry, nor my shame that I work in and organisation where colleagues would resort to it to justify torture. I have dealt with hundreds of individual cases of political or religious prisoners in Uzbekistan, and I have met with very few where torture, as defined in the UN convention, was not employed. When my then DHM raised the question with the CIA head of station 15 months ago, he readily acknowledged torture was deployed in obtaining intelligence. I do not think there is any doubt as to the fact

11. The torture record of the Uzbek security services could hardly be more widely known. Plainly there are, at the very least, reasonable grounds for believing the material is obtained under torture. There is helpful guidance at Article 3 of the UN Convention;

"The competent authorities shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

While this article forbids extradition or deportation to Uzbekistan, it is the right test for the present
question also.

12. On the usefulness of the material obtained, this is irrelevant. Article 2 of the Convention, to which we are a party, could not be plainer:

"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

13. Nonetheless, I repeat that this material is useless - we are selling our souls for dross. It is in fact positively harmful. It is designed to give the message the Uzbeks want the West to hear. It exaggerates the role, size, organisation and activity of the IMU and its links with Al Qaida. The aim is to convince the West that the Uzbeks are a vital cog against a common foe, that they should keep the assistance, especially military assistance, coming, and that they should mute the international criticism on human rights and economic reform.

14. I was taken aback when Matthew Kydd said this stuff was valuable. Sixteen months ago it was difficult to argue with SIS in the area of intelligence assessment. But post Butler we know, not only that they can get it wrong on even the most vital and high profile issues, but that they have a particular yen for highly coloured material which exaggerates the threat. That is precisely what the Uzbeks give them. Furthermore MI6 have no operative within a thousand miles of me and certainly no expertise that can come close to my own in making this assessment.

15. At the Khuderbegainov trial I met an old man from Andizhan. Two of his children had been tortured in front of him until he signed a confession on the family's links with Bin Laden. Tears were streaming down his face. I have no doubt they had as much connection with Bin Laden as I do. This is the standard of the Uzbek intelligence services.

16. I have been considering Michael Wood's legal view, which he kindly gave in writing. I cannot understand why Michael concentrated only on Article 15 of the Convention. This certainly bans the use of material obtained under torture as evidence in proceedings, but it does not state that this is the sole exclusion of the use of such material.

17. The relevant article seems to me Article 4, which talks of complicity in torture. Knowingly to receive its results appears to be at least arguable as complicity. It does not appear that being in a different country to the actual torture would preclude complicity. I talked this over in a hypothetical sense with my old friend Prof Francois Hampson, I believe an acknowledged World authority on the Convention, who said that the complicity argument and the spirit of the Convention would be likely to be winning points. I should be grateful to hear Michael's views on this.

18. It seems to me that there are degrees of complicity and guilt, but being at one or two removes does not make us blameless. There are other factors. Plainly it was a breach of Article 3 of the Convention for the coalition to deport detainees back here from Baghram, but it has been done. That seems plainly complicit.

19. This is a difficult and dangerous part of the World. Dire and increasing poverty and harsh repression are undoubtedly turning young people here towards radical Islam. The Uzbek government are thus creating this threat, and perceived US support for Karimov strengthens anti-Western feeling. SIS ought to establish a presence here, but not as partners of the Uzbek Security Services, whose sheer brutality puts them beyond the pale.

MURRAY

"In some cases, it may be apparent to the Agencies that the intelligence has been obtained from individuals in detention ("detainee reporting"), though, even then, the Agencies will often not know the location or details of detention. ""

"... experience proves that detainee reporting can be accurate and may enable lives to be saved.""

Citing a specific case, Manningham-Buller said;

"No inquiries were made of ... the precise circumstances that attended their questioning of [Mohammed] Meguerba.

In any event, questioning of Algerian liaison about their methods of questioning detainees would almost certainly have been rebuffed and at the same time would have damaged the relationship to the detriment of our ability to counter international terrorism."

Once you have sent the message that you are keeping the door open [to information obtained under torture] you have a relationship with the torturers' regime and that is more widely known…The signal has been sent saying, "Yes, please. Give us anything that you have and we do not particularly care how that information is reached."

The effect of sending such a signal "undoubtedly makes us less, not more, safe".[109] Moreover, even if the moral question is put to one side, information extracted in this manner is unreliable, as "people [are] ready to tell complete untruths, incriminating themselves, when they were completely uninvolved".[110]

81. We requested further information on this point from the Foreign Secretary and Bill Rammell, as well as following up the line of inquiry with Mr Rammell in oral evidence. Both reiterated the Government's abhorrence of torture, and Bill Rammell stated that:

We oppose the use of torture ourselves. We would never advocate anybody else using torture and to my knowledge we have not knowingly received intelligence that we have known has been gained under torture.[111]

However, when pressed on this latter point, neither the Foreign Secretary nor Mr Rammell was forthcoming. In correspondence, when asked to respond specifically to the question of whether the United Kingdom received and acted upon information extracted under torture by third parties, both Mr Straw and Mr Rammell successively failed to answer the question, instead stating that:

The UK intelligence and security agencies evaluate carefully the intelligence they receive against a range of factors; any concerns about the source of the intelligence or the means by which it may have been obtained would be taken into account.[112]

Written Parliamentary Questions asked by John Bercow MP and Greg Pope MP have elicited similar answers, couched in identical language.[113]

82. The Foreign Secretary was more forthcoming in giving evidence to the Intelligence and Security Committee, in which he said that:

There are certainly circumstances where we may get intelligence from a liaison partner where we know… that their practices are well below the line. But you never get intelligence which says 'here is intelligence and by the way we conducted this under torture'.

The Foreign Secretary also told the Intelligence and Security Committee that:

it does not follow that if it is extracted under torture, it is automatically untrue. But there is a much higher probability of it being embellished.

83. In relation to the moral dilemma of accepting evidence which, although extracted under torture, may save lives, the Foreign Secretary said that:

If you do get a bit of information which seems to be completely credible, which may have been extracted through unacceptable practices, do you ignore it? And my answer to that is, the moment at which it is put before you, you have to make an assessment about its credibility. Because… [what ] if we had been told through liaison partners that September 11th was going to happen…you cannot ignore it if the price of ignoring it is 3,000 people dead.[114]

"I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all."

"Torture cannot be justified in any set of circumstances at all," Mr Blair said.

Put that following the Law Lords' judgement on torture this morning, would the Government now say that it would not use evidence gained form torture, the PMOS replied that it was a difficult and complex case, and therefore he was sure that people would appreciate why he would not comment before considering the detail of the judgement, as it was right and proper that it was studied first. We had made it clear that we did not condone torture in any way.

Put that it had been suggested to a Select Committee that the Government would use evidence gained from torture, as that was the reality, the PMOS said again that it was important that we studied the judgement and gave a proper response, which we would do.

Asked if the Government used evidence gained from torture and also did the Government appear to warn that suspected terrorists would walk free, the PMOS replied again, he understood why the question was being asked but equally, it was perfectly legitimate for the Government to take the time to study what was a very complex judgement and respond properly, rather than on the hoof.