UK government demands secrecy for high-profile torture case

Two Pakistani men detained without charge for 10 years in Guantanamo say the UK's role in rendition must be revealed in the courts

Camp Delta, the secretive US facility at Cuba's Guantanamo Bay, where the claimants were held for a decade without charge (Reuters)

Richard Norton-Taylor-Wednesday 8 March 2017

Britain’s defence ministry and secret intelligence service (MI6) are insisting that claims made by Pakistani and Iraqi citizens alleging complicity in torture must be heard behind closed doors, the high court in London heard this week.

It is the first time a British law allowing civil cases to be tried in secret has been used to prevent the public from knowing how British soldiers and intelligence officers were involved in rendition operations – the seizure and handover of terror suspects to prisons where they say they were abused and tortured.

Yunus Rahmatullah and Amanatullah Ali, two Pakistani nationals, were captured by British special forces in Iraq in 2004 and handed over to US troops soon afterwards.

They are believed to have been held first at Camp Nama, a secret detention facility at Baghdad airport that British troops helped to run.

They were later transferred to Iraq's notorious Abu Ghraib jail before being rendered to the Bagram "black prison" in Afghanistan.

They were released without charge ten years later, in 2014.

Abdul Razzaq holds up the identity card of his brother, Amanatullah Ali (AFP)

Their capture and transfer to US forces was initially kept secret from British ministers, and only disclosed to the House of Commons in 2009 by then-defence secretary John Hutton.

Successive British governments have for years tried to prevent their cases, together with the better-known one of Abdel Hakim Belhaj, former leader of the Libyan Islamic Fighting Group, from being heard in court.

This January the British supreme court unanimously ruled that the cases involved allegations of the most serious abuses, including torture, and dismissed the government’s claims that since the operations involved agents from the CIA and other foreign states, no British court should be allowed to hear the case.

“The critical point in my view,” ruled Lord Mance in the lead judgment, “is the nature and seriousness of the misconduct alleged.”

He added: “English law recognises the existence of fundamental rights.”

• READ: Tortured Libyan dissident wins right to sue UK government

The consequences of that ruling for the Belhaj case have yet to be tested in court.

But on Tuesday and Wednesday in the British high court, lawyers for Rahmatullah and Amanattullah - as well for a group of Iraqi civilians who are suing the British authorities - said their cases must be heard in public.

“Justice must be done and seen to be done,” said Maya Lester QC, who is representing Rahmatullah, describing the attitude of lawyers acting on behalf of the Ministry of Defence and the British Foreign Office (representing MI6) “troubling”.

'National security' grounds invoked

Lawyers acting for the government had seized on the 2013 Justice and Security Act, which allows a judge to rule that “sensitive” material relating to “national security” can be heard in secret in civil cases.

The act was brought in after the government paid millions of pounds in compensation to British citizens and residents rendered to Guantanamo Bay, in an out-of-court settlement that meant the state's role in the operations would not be revealed.

British government lawyers insist that questions as to whether Rahmatullah and Amanatullah were members of the extreme Sunni group Lashkar-e-Taiba must remain secret, as well as the nature of their capture and interrogation, which British military units were involved and British knowledge of US treatment of terror suspects.

Lawyers for the Pakistani and Iraqi claimants argue that much of the information about British and US military operations in Iraq, including the fact that the UK was aware that the US was sending suspects to “black prisons,” has already been made public.

"The government is trying to cover up false intelligence, riding rough-shod over long-established principles of open British justice"

Omran Belhadi, human rights lawyer

Phillippa Kaufmann QC, representing the group of unidentified Iraqi civilians, told the court that British government lawyers were claiming that “sensitive” information had to be kept secret for reasons of “international relations”.

It is clear, though this was not argued in court, that the government does not want to admit that British special forces were involved in the operations.

The Ministry of Defence has obtained a court injunction preventing Ben Griffin, a former SAS soldier, from disclosing his activities in Iraq.

Though much has been written about the state's activities in Iraq, they have never been officially admitted.

Activists protest over the treatment of detainees at Guantanamo Bay protest outside the US embassy in London (AFP)

'Secrecy piled upon secrecy'

The case was heard before Mr Justice Leggatt, who on Wednesday said he would reserve judgment.

Omran Belhadi, a lawyer at the human rights group Reprieve, which is also representing the Iraqi claimants, said: "This is secrecy piled upon secrecy.

"The government is trying to cover up false intelligence, riding rough-shod over long-established principles of open British justice.

"With a torture apologist now in the White House, it’s more important than ever that the full truth about Amanatullah's and Yunus' ordeal comes out. We hope the court will ultimately reject ministers’ attempts to shroud the case in secrecy."

Andrew Tyrie, a senior Conservative MP and chair of the British all-party group on extraordinary rendition, said on a related case: “The idea that former detainees received compensation to prevent the disclosure of sensitive material is a red herring…

"These measures – where the government can bar the other party, their lawyers, and the public from court – damage the tradition of open British justice.”

Tyrie added: “In fact, there are long-established ways to stop sensitive information being released. For decades, the courts have been able to decide on a document-by-document basis whether the public interest is best served by disclosure or concealment, through a ‘Public Interest Immunity’ test.

"When the new rules were proposed, the majority of security-vetted lawyers – who are in the best position to know – said that they had not seen any cases in which the existing measures could not do the job.”

A 'public immunity test' has been used to determine such cases for decades (AFP)

Years without daylight

British officials and their "servants and agents" were "recklessly indifferent to the illegality of their actions," Rahmatullah's lawyers told the high court in earlier hearings. 

Rahmatullah has described in detail his torture and abuse, in a 60-page document drawn up by his lawyers.

He says he was beaten unconscious when he was captured by British special forces in Iraq in early 2004.

Soldiers cut his clothes off with a pair of scissors until, he says, he was "completely naked". 

He was locked in a solitary cell with rats and cockroaches.

Alongside other Bagram detainees, he was exposed to daylight in 2006 for the first time in two and a half years. 

After going on hunger strike, he says he was subjected to force-feeding on six separate occasions.

Apart from limited communication with International Committee of the Red Cross (ICRC) representatives, he had no contact with the outside world, including his family, until 2010, after six years in detention.