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Licence to Torture

A loophole in British law allows security officials to mistreat suspects with no fear of punishment

Published in: The Guardian

David Miliband was right when he wrote on these pages that the use of the term "war on terror" has been a mistake. But the main problem with the war on terror has not been language, but conduct. This week the joint committee on human rights held a hearing on allegations of British complicity in torture in Pakistan, to which Jacqui Smith has been asked to respond. They suggest a policy of condoning torture in the interests of national security.

Take the case of Salahuddin Amin, a British citizen convicted in 2007 for plotting attacks against targets including London's Ministry of Sound nightclub. Amin says that while in Pakistani custody he was met by British intelligence officials on almost a dozen occasions between sessions of torture.

Zeeshan Siddiqui, another British citizen, was detained in Pakistan in 2005 and tortured by the ISI - Pakistan's main intelligence service - while being interrogated over his alleged membership of al-Qaida. He reports being beaten, chained, injected with drugs and threatened with sexual abuse. British intelligence officials, who he says visited him, must have known from visible injuries that he had been mistreated.

Rangzieb Ahmed, from Rochdale, says he was beaten with sticks, whipped with electric cables and deprived of sleep; over a three-day period, he says, his fingernails were pulled out as ISI officials interrogated him. He was convicted of being an al-Qaida member and of directing terrorism. Crucially, at his trial the government did not deny defence claims that MI5 sent the ISI questions to put to Ahmed during interrogation and that MI5 questioned him while he was in ISI custody.

What is most disturbing about these accounts is that the British government knew full well the techniques the ISI and Pakistani law enforcement agencies use in interrogations, particularly in terror cases. The use of torture is widespread, systematic, routine and well documented. Even George Bush's state department criticised the use of torture in its annual human rights reports (though this did not stop the US from working hand in hand with the ISI). Asking Pakistan's security services to interrogate a detainee is essentially a request to use torture to obtain information.

Torture is banned and made punishable by life imprisonment in the UK through the Criminal Justice Act of 1988. Ministers insist that this ban is "absolute" and that Britain never uses or condones torture. But take a closer look and you will see a major loophole: "It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct."

Where does "lawful authority" come from? This can be found in the James Bond-style "licence to kill" provisions in the Intelligence Services Act 1994, which says: "If, apart from this section, a person would be liable in the United Kingdom for any act done outside the British islands, he shall not be so liable if the act is one which is authorised to be done by virtue of an authorisation given by the secretary of state under this section." This may explain why the government has confidently issued blanket denials of illegality in these cases.

A public inquiry should be held to look into these cases, to establish whether British security services have been complicit in torture, illegal detentions and enforced disappearances. Meanwhile, the home secretary's appearance before the human rights committee would be a good opportunity for the government to end its blanket denials and establish an exemplary policy consistent with British rhetoric on rights and liberty.

Brad Adams is Asia director at Human Rights Watch.

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