Child Porn and Intelligence From Torture – The Correct Analogy

I was reviewing my evidence to the Parliamentary Joint Committee on Human Rights. The Committee’s main preoccupation was whether receipt of intelligence you know comes from torture, makes you complicit in that torture in terms of the UN Convention Against Torture. I seemed, at least to myself, the only person who was morally outraged at torture. The question troubling the Committee was, can the government, legally, get away with it?

This, from the uncorrected transcript, is part of their questioning of me on this point:

Mr Murray: I think the essence of the government’s position is that if you receive intelligence material from people who torture, be it CIA waterboarding, or torture by the Uzbek authorities or anywhere else, you can do so ad infinitum knowing that it may come from torture and you are still not complicit.

Q77 Dr Harris: The government say that they condemn the use of torture, do not participate in, solicit, encourage or condone the use of torture and work hard to eradicate it, but they also say in their response to our report on the UN Convention Against Torture: “#Our rejection of the use of torture is well known by our liaison partners. The provenance of intelligence received from foreign services is often obscured as intelligence and security services, even where they share intelligence, rarely share the details of their sources. All intelligence received from foreign services is carefully evaluated. Where it is clear that the intelligence is being obtained from individuals in detention the UK agencies make clear to foreign services the standards which they expect them to comply with.” That does not say what you think it ought to say, but do you accept that their position is different from yours and that their current position is consistent with what Sir Michael Wood essentially said?

Mr Murray: Their position remains the one outlined by Sir Michael Wood, and it was put to me that if we received intelligence from torture we were not complicit as long as we did not do the torture ourselves or encouraged it. I argue that we are creating a market for torture and that there were pay-offs to the Uzbeks for their intelligence co-operation and pay-offs to other countries for that torture. I think that a market for torture is a worthwhile concept in discussing the government’s attitude.

Q78 Dr Harris: In your evidence you assert that Jack Straw himself as foreign secretary endorsed Sir Michael Wood’s view set out in that memorandum?

Mr Murray: Yes.

Q79 Dr Harris: That would not be a surprise in a sense given the government’s position that the Wood memorandum is at least consistent if not congruent with the government’s then, and presumably currently, position?

Mr Murray: What you say about the government’s position is true, but it has done everything possible to disguise its position. I received an email from the Bishop of Bath and Wells who had written to a government minister to say he was worried about the possibility that we were using intelligence from torture as highlighted by the Binyam Mohamed case. He got the reply that was always given which was to refer to the first part of the government’s position that you cited – the bit about condemning torture unreservedly – but not the second part. The government do not volunteer the fact that they very happily accept this information. I make it absolutely plain that I am talking of hundreds of pieces of intelligence every year that have come from hundreds of people who suffer the most vicious torture. We are talking about people screaming in agony in cells and our government’s willingness to accept the fruits of that in the form of hundreds of such reports every year. I want the Joint Committee to be absolutely plain about that.

And this is Philippe Sands questioned on the same point:

Q77 Dr Harris: You describe Lord Bingham’s words as providing a small opening to enable the government to come up with a position, but is it not the case that the government has leapt through it and relied very much on that approach? The 2008 annual report of the Foreign and Commonwealth Office on human rights published in March 2009 says: “The use of intelligence possibly derived through torture presents a very real dilemma given our unreserved condemnation of torture and our efforts to eradicate it. Where there is intelligence that bears on threats to life we cannot reject it out of hand. What is quite clear however is that the information obtained as a result of torture would not be admissible in any criminal or civil proceedings in the UK.” They are just saying that is the position and they rely on that. They do not have to work very hard to do that, do they?

Professor Sands: In a sense they are fudging; they are expressing a commonsensical position. You get the odd bit of information that has been provided under torture. It provides information that may head off some serious attack. What do you do? Do you just ignore it? They are saying no. But what they are not addressing is whether or not there is a policy of systematic reliance on such information.

Q78 Dr Harris: What I have just read out is consistent with Lord Bingham’s judgment in your view.

Professor Sands: It may be. What I do not know is the factual background against which that is written. I have information about what is in the public domain. I have access to certain information through my professional practice as a barrister which for reasons you understand I cannot address in this forum. If they are talking about a very limited piece or pieces of information that may be one thing. It is quite another thing, if we take the scenario of those words, to imagine a situation in which Her Majesty’s Government engaged in an arrangement with a country that was known to torture in a widespread way and turned a blind eye to what was going on and received all the information but did not participate physically in the torture. I do not think Lord Bingham had that in mind.

Q79 Dr Harris: But what Mr Murray described as a schizophrenic approach could arise where they worked to stop torture. Let us take the instance of the government being merely a passive recipient of information but they know that it may well have been obtained under torture because they know it happens. They have no intention to use it in any proceedings, to comply with the judgment in A & Ors, but it may be stuff that they feel they are entitled to according to the bit of Lord Bingham’s speech that you read out. They will not know in advance; they cannot say, “Give the information to us next April because we think that it will contain information about a bomb in the House of Commons.” Is it not the case that, even though in Mr Craig’s words it seems schizophrenic, by being merely a passive recipient as long as they do everything else to stop it that is a consistent and possibly lawful policy given the case law provided by the House of Lords decision to which you have alluded?

Professor Sands: I do not think I can give a better answer than the one I have given. It might be depending on the particular facts, the regularity of the flow of information and the context in which the information arrived. I take your point, but perhaps I may turn it around a slightly different way. I have set out the criteria that I believe need to be met on the basis of case law and practice to determine when complicity arises. Essentially, there are three factors. First, there must be knowledge that torture is or is likely to take place.

Q80 Chairman: Does that include constructive knowledge?

Professor Sands: I think it would. In my view turning a blind eye in the face of overwhelming evidence would constitute knowledge for the purposes of the Committee Against Torture. Second – this is the crucial issue ?” there is a contribution by way of assistance. The question then becomes: at what point does the regular receipt of information that is known to have been obtained by torture amount in some way to a contribution? It depends on the factual scenario against which that happens. The third element is some material or substantial effect on the perpetration of the crime. If you go through those three elements you can begin to see a situation in which one-off accidental reliance on information would be in one category but systematic reliance on such information in the circumstances of knowledge of the background to an ongoing relationship with another state might well cross the line into complicity.

Q81 Chairman: It is the contribution by way of assistance that has a substantial effect on the perpetration of the crime, so those are two of the three elements in the wording you identify in the ICTY judgment. I have no wish particularly to defend the government, but in a legal sense it is hard to see why passive receipt – I shall come on to receipt with gratitude – via an email box that you do not close, even with knowledge that torture is taking place and the rest of your embassy is saying, “Don’t torture”, is in itself is contribution by way of assistance or that it has a substantial effect on the perpetration of the crime, because the fact that you are receiving it passively is not the reason they are doing it, is it?

Professor Sands: That would appear to be what Lord Bingham had in mind in the passage I read out, but what I am suggesting is that you must distinguish between different situations. There is a world of difference between the one-off receipt of information that comes into your mailbox and a relationship that is premised on regular, systematic, continual reliance against the background of a broader relationship between two sovereign entities.

You can read the full transcript from here:

Or you can view it here:

In sending in my corrections and clarifications, it occurred to me that the correct analogy with material from torture must be child porn. Child abuse is indeed a form of torture. It is abuse of the helpless. If you possess child pornography, you are viewed as guilty even if you had no part in making it. The law takes the view that you have encouraged the act by creating the market for the material, and that you must be depraved to want it. It seems to me that is all precisely true also of torture. And remember that in Uzbekistan, torture of children in front of parents was indeed one of the techniques used to get the “Intelligence”.

So try substituting “child abuse” for “torture” in the committee’s deliberations, and the argument about just how much Ministers may seebefore they are complicit in its production, takes on a whole new light.

I have included this argument in my comments on the transcript sent to the committee yesterday.

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