Simon Reid-Henry: To brush aside torture is to condone it

Despite repeated attempts to sidestep the issue, the British government is facing a number of very serious accusations about possible complicity in torture. The case of Jamil Rahman, whose lawyers announced last week they are to file a damages claim against the Home Secretary, Jacqui Smith – alleging her complicity in his arrest and breaches of human rights legislation during his detention – has joined former Guantanamo detainee Binyam Mohamed's legal struggle in the High Court to obtain evidence from the government pertaining to its knowledge of his imprisonment and torture in Pakistan and Morocco between 2002 and 2004.

It is not hard to imagine why the Government might be unwilling to let these cases see the light of day. Despite David Miliband's resort to gagging orders three times now in the case of Mohamed, there is already enough circumstantial evidence to raise serious questions about the conduct of our ministers and government agents in the prosecution of the war on terror. We now know, for example, that what looks to have been torture has taken place not only in countries such as Pakistan, Egypt and Uzbekistan, but, according to the charity Reprieve, in UK overseas territories such as Diego Garcia and the Turks and Caicos Islands, and in US ships serviced at some of those territories.

We know that MI5 has passed on information about British detainees to the CIA during the course of their interrogation. We know that the British government has received information likely to have been obtained under torture. And even if only half of what is being alleged in the cases of Rahman and Mohamed turns out to be true, then we are looking at a truly shocking breach of legal and moral rights by a supposedly democratic government.

Lawyers acting on behalf of those who allege British government complicity in their detention and mistreatment have, thus far, found it extremely hard to get hold of the relevant facts or, more worryingly, to be allowed to present them in the public domain. In place of a convincing response to claims that it is unreasonably seeking to prevent the release of such materials, the government merely points to its own reviews into the handling of detainees in more than 2,000 interrogations. Where these reviews have found substantive evidence to suggest UK agents' complicity in torture, we are assured that this has been limited to isolated cases in which there are usually mitigating circumstances. The effect, of course, is to focus attention on the individuals in question, rather than the system they work for. In order to obtain the truth of the matter, therefore, it seems clear that a full judicial inquiry is required. Such an inquiry will have to establish two things above all others: how complicit UK agents have been in the practice of torture, and how far up the chain of command knowledge of that complicity goes.

The government argues that there is no such systematic complicity. It paints a picture of adherence to the letter of the law, howsoever its agents may interpret that. These claims are hardly robust. As is clear from the testimony of the former British ambassador to Uzbekistan, Craig Murray, at last week's Parliamentary Joint Committee on Human Rights, the spirit and the letter of the law are not always coincident. But the Government has set perhaps a more dangerous trap for itself in leaving slightly ajar the door for accepting evidence obtained under torture. The Foreign Office's 2008 Annual Report on Human Rights, for example, asserts that: "We do not practise it [torture], order it from others or condone it, and we investigate allegations of it." At the same, it floats the idea that: "Where there is intelligence that bears on threats to life, we cannot reject it out of hand."

Such ambiguity is surprising and untenable for a signatory country to both the European Convention on Human Rights and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. As the latter makes very clear, there are no situations – no ticking bomb scenarios – that can ever justify an act of torture or the use of its product. Moreover, as the British lawyer Philippe Sands has argued, there can be circumstances in which the passive receipt of the products of torture also constitutes complicity. If you are receiving multiple amounts of even low-level information, and you are also aware that the information is coming from torture, then it is arguable that not raising that issue with the suppliers of the information is "complicit", or a form of "contribution", to that torture. This does not boil down to a question of accounting for every one of a thousand scraps of paper daily, as Baroness Eliza Manningham-Buller, MI5's former director-general, has tried to suggest. But it does require that clarity and rigour be imposed upon the system.

In the absence of an independent inquiry that will do just that, we are left merely speculating as to how we got to this point in the first place. The rise of the doctrine of national security and the consolidation of a peculiarly British paternalistic streak that has long buttressed the operation of a secretive side to the state have more than a little to do with it. Indeed, the latter deep-rooted faith in the rightness of the government of power's cause, and the condescension with which attempts to force oversight have historically been treated, may help, in particular, to explain the surprising air of diffidence ministers project in relation to the claims of government complicity in torture.

Even without a judicial inquiry, therefore, perhaps there is at least one lesson to be learned from all this: that we must unpick ourselves from the dangerous tangle of national security and state secretiveness. As worrying as the prospect of British complicity in torture is, more worrying still is the apparent capacity of our government to keep brushing such claims of complicity aside.

Simon Reid-Henry is a lecturer at Queen Mary, University of London