The British military continues to hold a firm line on the non-disclosure of documents relating to the detention and interrogation of "unlawful combatants" and terror suspects in Iraq and Afghanistan. But freedom of information campaigners in America, where the right-to-know law has been established for nearly half a century, are enjoying much more success.
New documents released by the US Department of Defense suggest that America continued to use abusive interrogation methods on detainees even after a 2003 instruction ordering the military to end such practices.
The Department of Defense documents, disclosed this week to the American Civil Liberties Union (ACLU) under the US freedom of information law, also shed light on the use of psychologists in military interrogations and the failure of medical workers to report abuse of detainees.
"The documents reveal that psychologists and medical personnel played a key role in sustaining prisoner abuse – a clear violation of their ethical and legal obligations," claims the ACLU lawyer Amrit Singh. The ACLU obtained the documents – unredacted data from what is known as the Church Report – in connection with a Freedom of Information Act lawsuit filed in 2004.
Contrast this disclosure with a similar request made by a British parliamentarian of the Ministry of Defence earlier this year. Andrew Tyrie MP, chairman of the all-party parliamentary group on extraordinary rendition, wrote to the Defence Secretary, Des Browne, asking for information about the agreements between Britain, America, Afghanistan and Iraq relating to the treatment of prisoners transferred from one country's forces to another.
The government reply on 19 March was confusing and failed to address the requirement of the Freedom of Information Act to cite an exemption for not providing the information requested. Mr Browne's letter didn't even refer to the Act.
On 21 April Mr Tyrie wrote again, setting out his concerns about the way the Freedom of Information Act requests were dealt with, making the same requests for information, and copying his letter to the Information Commissioner. He told Mr Browne:
The arrangements in place to ensure that detainees captured by British forces are not subsequently transferred to places where they may be tortured appear to be inadequate. And government responses to my requests for further information on this crucial issue have been a shambles.
In America similar suspicions about the unlawful treatment of prisoners have proved to be justified. The Church Report shows that
the use of some of the [illegal interrogation] techniques . . . continued even until July 2004, despite the fact that many were retracted by the October 2003 memorandum, and some were
subsequently prohibited by the May 2004 memorandum.
Lawyers acting for Iraqi detainees arrested by the British Army believe there was a similar failure of communication governing the rules for the treatment of prisoners in post-invasion Iraq.
"Recent Freedom of Information Act requests to the Ministry of Defence have been refused without proper reasons," Mr Tyrie says:
The UK government appears not to know where people it captures, and subsequently transfers into US custody, are taken. It continues to rely on US assurances, which have been called into question by the Intelligence and Security Committee.
As in America, freedom of information campaigners in the UK are learning that full disclosure of potentially politically damaging material is only secured by recourse to the courts.
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