The truth will protect us all

How has a basically decent person such as David Miliband got himself into such a muddle over torture

Binyam Mohamed was rendered by the CIA from Pakistan to Morocco to face 18 months of torture. Since the New Year he has been on hunger strike, force-fed using the gratuitously unpleasant process employed in Guantanamo Bay, more than once collapsing from the pain. As we at Reprieve have tried to reunite him with his legal rights, we have seen his mental and physical health decline.

On 4 February, British judges ruled that the media could not have access to details of his torture. They said their silence was compelled by the Bush administration's "threat" to stop sharing intelligence with Britain if evidence of criminal acts of torture were revealed.

Miliband then began his indefensible remarks. He assured us, first, that this was not really a threat, but merely an observation that publishing would result in "lasting damage" to Anglo-American co-operation. Perhaps when the Gambino family points out that people who snitch on the Mafia might end up in a pair of cement shoes that, too, is an observation rather than a threat.

Far more troubling was the government policy he championed in parliament: the British cannot, he said, publish secret details of torture if those who admit it forbid it. "It is US information and it is for the US to decide when to publish their information," he said.

In this respect, Miliband misses two salient facts. First, he has conflated "national security" with "national embarrassment". It is shameful that the Americans have stooped to torture, but a CIA report documenting their medieval practices is not equivalent to the blueprints for a Trident submarine. This is not the kind of secret that threatens national security but one that should precipitate a criminal inquiry and national self-reproof.

Congressman Bill Delahunt is a former prosecutor and a member of the House committee on foreign affairs. "Why wouldn't David Miliband lobby the Obama administration to get this declassified?" he asked this week. "What is he trying to hide?"

The second fact is this. When Miliband states the general rule that the UK is not at liberty to reveal intelligence coming from the US, he identifies no clause that requires the UK to suppress evidence of torture. Again, the Mafia might issue threats against those who would divulge evidence of their crimes, but such clauses are not written into intelligence-sharing arrangements between states.

So how did Miliband get in such a pickle? The problem is no Anglo-American agreement contemplated the issue would ever arise. When Felix Leiter and James Bond discussed joint operations, they assumed that any torture would be by Smersh, not the CIA or MI6. They failed to discuss what to do if Q developed a new thumbscrew gadget in his workshop. Miliband was thus unprepared, and his parliamentary presentation consisted of ill-judged platitudes about the need for secrecy.

There is an urgent need for some reality-based policymaking. Inserted into any intelligence agreement should be a stipulation that foreign countries must assume that evidence of a war crime will be subject to public disclosure if shared with the UK.

Indeed, as the British judges wrote in their judgment, the failure to reveal such material is an offence: "Section 52 of the International Criminal Court Act 2001 . . . provides that a prosecution can be brought against a person who aids and abets a war crime (or assists in concealing a war crime) in the United Kingdom or against a United Kingdom national or resident who so acts anywhere in the world."

Binyam Mohamed is a British resident. The American authorities subjected him to torture: a war crime. The Foreign Secretary has confessed to parliament that the government will conceal the crime.

Some diehard spooks argue that a policy mandating disclosure ties their hands - or, as they put it, "puts Britain at risk". They must, they tell us, learn confidentially that Binyam Mohamed was tortured in order to assess the reliability of the intelligence gleaned (or racked) from him.

Have these people lost their senses? In collaborating with a torturer, do they say, we should promise to keep his crimes secret so that we can conclude that the information is useless? This is a high price to pay for garbage.

There are already systems in place for determining whether dubious intelligence is reliable. If the source will not identify the conditions under which intelligence was gathered, it is suspect. Binyam Mohamed's rendition illustrates the point: the Americans have not produced any document identifying where he was for two years. Given this, MI6 should have discounted any intelligence allegedly from him.

We later learned that Binyam was "confessing" with a razor blade held to his genitals.

The All-Party Parliamentary Group on Extraordinary Rendition was due to hold a hearing on Miliband's muddle on 11 February. A common-sense conclusion already unites US politicians and soldiers, and British intelligence agents: hiding evidence of torture is simply unacceptable.

If Miliband continues along his current path, he will relearn the lessons of Watergate: the cover-up can be more dangerous than the original crime. Darkness only disappears when it meets the light of day.

Clive Stafford Smith is the director of Reprieve, the legal action charity.

Clive Stafford Smith is legal director of the charity Reprieve and has spent more than 20 years representing prisoners on Death Row in the United States. More recently he has represented many of the prisoners in Guantanamo Bay.

This article first appeared in the 16 February 2009 issue of the New Statesman, The New Depression