Spooked

When I opened up The Guardian this morning I saw an article about a document they had obtained on Britain's torture policy. I didn’t bother reading their article at first (since they have consistently butchered documents for their own political ends). After finishing the policy, I was quite surprised and happy at our policy. And then I read The Guardian article which made me want to write an actual overview of the document – sprinkled with justifications and showing how The Guardian has again misconstrued an important document.

The document present the policy with regards to ‘torture and mistreatment’ in 2006 (although the original policy stems from 2002). The policy states that MI5 and MI6

do not participate in, solicit, encourage or condone the use of torture or inhuman or degrading treatment. The agencies will not carry out any action which it is known will result in inhuman or degrading treatment.

But of course, you won’t get to read this in The Guardian’s article until you get to the 20^th paragraph. The policy goes even further in stating that

It is an offence for an officer to incite the offence of torture committed by a foreign liaison service. An officer will be guilty of incitement where he intend to incite torture.. For this purpose, deliberately closing one's eyes to the consequence of one's action is deemed to be the same as knowing those consequences.

The same applies to aiding or abetting torture. The main part that interests The Guardian is not the policy of torture, which has a categorical ban but information which has been obtained by torture by foreign security services or could lead to torture if information is given to said foreign security services.

I oppose the use of torture because I believe that it is immoral, other methods are more (or at least as) effective, that torture yields unreliable information and its counter-productive. However, ex post facto, I would not refuse information which has life-saving intelligence. Meaning, I would oppose the torture of an Al Qaeda member but once information has been obtained, I will not risk further lives by not using it. I see no contradiction in this: it is a fact that torture can lead to accurate information. But that ignores that it is not the only, or even moral, way of doing so. It is this reasoning that the British policy broadly follows.

The policy described here will be divided into: (a) passing or seeking information and (b) receiving information. In the section on ‘passing or seeking information’, there are three different levels of knowledge that an officer have which will have different consequences:

[1] He does know that his actions will not result in torture or mistreatment... to proceed will be lawful.

[2] While he does not know, he foresees a real possibility that the consequences will include torture or mistreatment... he must refer the matter to his senior line management before proceeding further.

Line management may conclude that there is not a real possibility... but if [they] share the assessment of the officer, they should consider attaching a further caveat to the information or request [to the effect that information given should not be used for questioning of any individual or if it is to be used for question, such questioning should conform with the international legal standards and that information sought should not be obtained from any individual in detention or questioning should conform to international legal standards]

However a caveat is only of value of the officer believes that will be observed... If it is not considered possible to retain reliable assurances [or if there is any doubt] the matter should be referred to senior management before proceeding further... They will balance the risk of mistreatment and the risk that the officers actions could be judged to be unlawful against the need for the proposed action. All of the relevant circumstances will be taken to into account. These will include operational imperative for the proposed actions, such as if the action involved obtaining life-saving intelligence, the level of mistreatment anticipated and how likely those consequences are to happen.

Its worth stopping here just to see how The Guardian covered this part of the document. This was the part that they chose to lead with. They claim that the section in bold shows that the policy “instructed senior intelligence officers to weigh the importance of the information being sought against the amount of pain they expected a prisoner to suffer.”

Ur, not quite. The section this is under is ‘While he does not know, he foresees a real possibility that the consequences will include torture or mistreatment.’ Thus, the whole process must be weighed accordingly: “They will balance the risk of mistreatment” against “the need for the proposed action.”

Most important are the last words of the bold section: “how likely those consequences [torture] are to happen.” The whole point about this section is that MI5 and MI6 do not know but foresee a real possibility. Which is why they must balance the risk of it actually being obtained by or leading to torture against the need to obtain or give “life saving intelligence.” It’s misleading of The Guardian to say that they are balancing the pain of an individual and intelligence. No, they are balancing the risk of any torture against the necessity of vital information. If there is going to be torture as a result of his actions that is a completely different matter.

Which is why in the case where

[3] He knows what the consequence will be and those consequences include torture or mistreatment. The procedure is initially the same as for [2], with the matter being referred upwards. However, even with the use of caveats and/or assurances, [if] it is known that the consequences will include torture or mistreatment then the action will not be allowed to proceed. The Agencies will not authorise any action which it is known will result in the mistreatment of an individual.

This allows MI5 and MI6 to seek or share intelligence from foreign liaison services so long as they (i) do not know that it will lead to torture and (ii) the real possibility is balanced against the necessity. And in case there was any doubt, under the ‘receiving information’, the policy states that:

Where the Agency knows or has reason to believe that a particular liaison service uses torture or other mistreatment to obtain information, the Agency should consider obtaining assurances, before continuing to receive such information. If it is not considered possible to obtain reliable assurance [or if there is any doubt] senior management... must decide to continue to receive such information. As above, all relevant circumstances will be taken into account [i.e. whether its life-saving information]

It is also worth noting that The Guardian ran an article in 2009 about this very policy where it claimed that it said:

"Given that they are not within our ­custody or control, the law does not require you to intervene to prevent this [torture],” the policy said.

This is nowhere to be found in the policy. In fact, it says the opposite:

The Agencies are committed to ensuring so far as possible the observance of human rights by [foreign] liaison services... it is clearly vital that the Agencies' relationships with liaison services are conducted in a way that eliminates or minimises [torture]

I’m sure The Guardian will issue an apology for libelling our security services who have done a great job of keeping us safe: between 2000-2009, 12 attacks were stopped by MI5 and MI6 in the UK. Just a final note, whether this policy was followed and the cases of other individuals is a completely different matter. This has just been about stating and justifying the official policy of the British government (while poking fun at the Guardian).