The UK’s intelligence agencies are facing a rare judicial investigation after a tribunal said it would look into allegations that British spies were complicit in the torture of a prisoner held by the CIA.
The investigatory powers tribunal (IPT) said late last week it would examine a complaint brought by Mustafa al-Hawsawi, a Saudi citizen who was tortured between 2003 and 2006 while detained in a network of secret CIA prisons.
Al-Hawsawi, 54, who is accused by the US of aiding the hijackers behind the September 11 terrorist attacks, has been detained in the US military prison at Guantánamo Bay in Cuba since 2006.
In its ruling, the IPT – a special judicial body that investigates and hears complaints against the intelligence services – said the allegations in Al-Hawsawi’s case were “of the gravest possible kind”.
IPT investigations are often shrouded in secrecy, but Al-Hawsawi’s lawyers believe it is the first known full investigation by the tribunal in relation to prisoners held in the CIA’s secret detention programme.
Unlike many other UK courts, the IPT can adopt an inquisitorial process to investigate complaints and has unique powers to obtain secret documents from the intelligence agencies.
Government lawyers argued the IPT did not have jurisdiction to determine Al-Hawsawi’s complaint. But the tribunal, led by senior judge Lord Justice Singh, disagreed and concluded it was in the public interest to consider whether the allegations were true.
Al-Hawsawi’s lawyers claim there is credible evidence in the public domain that British intelligence personnel unlawfully “aided, abetted, encouraged, facilitated, procured and/or conspired” with the US in his torture and mistreatment.
First captured in 2003, Al-Hawsawi was forcibly rendered between secret CIA prisons around the world known as “black sites”, where his lawyers said he was subjected “to a wide array of ill-treatment and torture”.
A US Senate investigation into the torture programme found records indicating Al-Hawsawi was tortured and suffered serious health issues as a result of what the CIA called “rectal feeding”, which medical experts have consistently said was a form of rape or sexual assault.
After the CIA transferred Al-Hawsawi into military custody at Guantanamo Bay in 2006, the US alleged he was “a senior al-Qaida member” who provided financial support to the men behind 9/11.
Held in US custody for two decades, Al-Hawsawi has been awaiting trial before a secretive military tribunal since 2012 alongside four other defendants accused of helping the 9/11 hijackers. Pre-trial hearings in the death penalty case are currently on hold.
In London, the IPT’s judgement in Al-Hawsawi case came just days after lawyers for another Guantánamo detainee, Abd al-Rahim al-Nashiri, asked the tribunal to consider similar allegations against the UK’s spy agencies.
In a separate civil case, the UK’s supreme court will next month consider an issue in a claim against the UK government by a Palestinian man known as Abu Zubaydah, also held at Guantánamo. Zubaydah has accused MI5 and MI6 of conspiring with the CIA despite knowing he was being tortured.
Together, the cases place decades-old questions about UK complicity in the CIA’s kidnap and torture programme back under the spotlight.
In 2018, the parliamentary intelligence and security committee found UK complicity in the programme was more widespread than previously known, but said it had ended its investigation early due to government obstruction.
A year after the committee’s published its findings, ministers ditched a commitment to hold an independent judge-led public inquiry, arguing it was no longer necessary.
Rupert Skilbeck, the director of Redress, an organisation that pursues legal claims on behalf of torture survivors and which represents Al-Hawsawi, said the IPT ruling had particular significance given the government’s decision to abandon a judge-led inquiry.
“The UK government has never adequately accounted for its role in the torture of detainees after 9/11, preventing victims from obtaining redress and perpetrators from being held accountable,” he said. “This case could help clarify some important questions and incidents that remain unanswered and uninvestigated.”
It is not known when the IPT will complete its investigation. Under the tribunal’s rules, the intelligence agencies have 21 days to appeal the judgement.
Asked about the case, a spokesperson for the government said it “does not confirm or deny allegations, assertions or speculation about the activities of UK intelligence agencies”.
