The UK Updates Its Detainee Treatment Policies

The British government instructs its intelligence officers to cooperate with other countries' investigations but to maintain its ethical standards

Days after announcing a commission to investigate the British security services' complicity with harsh or illegal interrogations by U.S. intelligence agencies, the UK government has issued new guidance to its intelligence officers about detention and interrogation. In the U.S., such guidance would be classified, aside from what might appear in an executive order. (The UK has an Official Secrets Act, but it tends to be more transparent and more agile at correcting its own mistakes than the U.S., which has various privileges and precedents but no Official Secrets Act.)

According to the memo, "[t]he security and intelligence agencies (the Agencies) do not have powers of detention either in the UK or overseas. UK Armed Forces may have a power to detain individuals in overseas operations depending on the circumstances of the operation. For [ministry of defense] and UK military personnel, 'interviewing' includes tactical questioning, interrogation or debriefing."

The essential requirements "are that the detainee must be treated fairly, humanely, and with dignity and respect. Interviews must not involve torture or cruel, inhuman or degrading treatment or punishment."

Noting that both the armed forces and the intelligence services need to work with foreign services from time to time, the UK seeks to "ensure that our co-operation accords with our own international and domestic obligations. We take great care to assess whether there is a risk that a detainee will be subjected to mistreatment and consider whether it is possible to mitigate any such risk. In circumstances where, despite efforts to mitigate the risk, a serious risk of torture at the hands of a third party remains, our presumption would be that we will not proceed."

This not an out-and-out ban on such cooperative relationships. Indeed, elsewhere, the memo notes that "there is no agreed or exhaustive definition of what constitutes" cruel and degrading treatment, and that it sometimes is different than "torture," which is well defined in international law: "Although it is legitimate to differentiate between torture and CIDT, individual instances of mistreatment that might in isolation constitute CIDT could amount to torture in circumstances in which e.g. they are prolonged, or coincide with other measures."

Now -- for this next section, read: the CIA where you see "foreign liaison" or "foreign service."

Some liaison services adopt a different approach and different standards to the UK in the way that they detain people and treat those they have detained. The extent to which they are prepared to take account of UK views on the way that they should behave varies, depending on such factors as the extent to which a relationship of trust exists with the UK, the extent to which there is international consensus on the issue, and the extent to which the liaison service believes it has a justification or need for taking a different approach. Personnel need to be aware of the tensions this can create and the need to manage them in a manner that is consistent with the policy described above in paragraph 6. Distinct from any personal liability, the circumstances covered by this guidance may engage the responsibility of the UK - with the potential for damage to its international reputation.

Before interviewing or seeking intelligence from detainees in the custody of a liaison service, or before soliciting an individual‟s detention by a liaison service, personnel must consider whether the detainee or individual may have been or may be subjected to unacceptable standards of detention or treatment. Personnel should consider attaching conditions to any information to be passed governing the use to which it may be put (where applicable) and/or to obtaining assurances from the relevant liaison service as to the standards that have been or will be applied in relation to that detainee or individual to minimise any perceived risk in this regard. Personnel should feel free to raise any concerns with senior responsible personnel nominated personally by the head of their Agency or Department ("senior personnel")

Here's the specific guidance if torture or poor treatment is suspected:

If someone from a foreign service begins to use banned techniques, UK intelligence officers and members of its armed forces must either stop the interview or otherwise act to stop them from taking place. This seems to be a legal obligation in order to indemnify them against civil or criminal action.

The guidance gives officers plenty of leeway here; this is not an out-and-out ban on the UK ever participating in any manner with foreign intelligence services who might apply torturous or cruel techniques to detainees.They can still provide questions to be asked, although they are encouraged to attach conditions to those questions -- i.e., don't torture someone to get these answers. But the new guidance requires quite a bit of ministerial involvement.