MI6 aided the delivery of Abdel Hakim Belhaj and his wife to Muammar Gaddafi. The Supreme Court is due to rule on whether they can sue
Britain’s MI6 spy agency will be placed under an unprecedented and unwelcome spotlight on Tuesday for the rendition of Libyan dissidents to Tripoli, where they were subsequently tortured by Muammar Gaddafi’s secret police.
The Supreme Court in London will rule on whether the family of Abdel Hakim Belhaj can sue a former senior MI6 officer, Mark Allen, and former foreign secretary, Jack Straw, for their role in the affair. The abductions in 2004 came at a time when the government of UK prime minister Tony Blair was seeking closer ties to the Libyan dictator in its search for commercial deals, notably oil.
Then foreign secretary Jack Straw told Parliament a year after the abduction of Belhaj that there was "simply no truth" to claims that Britain was involved in rendition.
MI6’s role in the secret rendition was revealed in extraordinary circumstances. In 2011, Nato air strikes destroyed the offices of Gaddafi’s intelligence chief, Moussa Koussa. Among the scattered documents discovered by journalists was a letter Allen wrote to Moussa on 18 March 2004.
'I congratulate you on the safe arrival of Abu Abd Allah Sadiq. This was the least we could do for you'
- Mark Allen, former senior MI6 officer, in letter to Moussa Koussa
"I am so grateful to you for your help in sorting out this visit to the Leader by our Prime Minister," wrote Allen.
After referring to Blair’s wish to "meet the Leader in his tent", Allen continued: "Most importantly, I congratulate you on the safe arrival of Abu Abd Allah Sadiq [MI6's name for Abdel Hakim Belhaj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over the years.
"I am so glad. I was grateful to you for helping the officer we sent out last week. [Belhaj’s] information on the situation in this country is of urgent importance to us."
Allen added: "The intelligence on [Belhaj] was British. I know I did not pay for the air cargo [Belhaj]. But I feel I have the right to deal with you direct on this and am very grateful for the help you are giving us. M." Allen was making it clear that the CIA arranged and paid for the flight, while MI6 provided crucial information.
This was unprecedented evidence of MI6 complicity in rendition, contradicting persistent denials by British ministers. A year after the Libyan’s rendition, but before the evidence emerged, Straw told British MPs: "There is simply no truth in the claims that the United Kingdom has been involved in rendition full stop."
Snatched from safety
After tip-offs from MI6, Belhaj and his wife, Bouchar, who was pregnant at the time, were seized in Kuala Lumpur in early 2004. Belhaj's associate, Sami al-Saadi, his wife and four children, were seized in Hong Kong. Both men were leading members of the Libyan Islamic Fighting Group (LIFG), an organisation dedicated to Gaddafi’s removal. Both men and their families were held by Malayasian and Hong Kong authorities at the behest of MI6 and the CIA, according to evidence seen by British courts.
'I wasn’t allowed a bath for three years and I didn’t see the sun for one year. They hung me from the wall and kept me in an isolation cell. I was regularly tortured.'
- Abdel Hakim Belhaj
They were hooded, chained, and bound during the flights to Tripoli. Belhaj said that when he arrived at the Libyan capital, he was told by Koussa that he would die in prison. When he pleaded for his wife to be released, he said he was told that if she was freed "everyone will know that the Americans and British gave you to us".
Belhaj was interrogated by British intelligence officers who also provided the Libyans with a list of questions to ask the detainees. He was kept in isolation for a year and released in 2010 under a reconciliation programme promoted by Gaddafi’s son, Said al-Islam.
Belhaj later headed Libya’s Al-Watan party. He told the Guardian that British intelligence officers were among the first to interrogate him in Tripoli. He said he was "very surprised that the British government [were] involved in what was a very painful period in my life.
"I wasn’t allowed a bath for three years and I didn’t see the sun for one year. They hung me from the wall and kept me in an isolation cell. I was regularly tortured."
Saadi was also held in solitary confinement in a room with no daylight. He said he was repeatedly tortured, beaten with sticks, whips and rubber hosing. He, too, was released in 2010. Their families were released earlier.
In January 2012, the Metropolitan Police said in a statement: "The allegations raised in the… cases concerning the alleged rendition of named individuals to Libya and the alleged ill-treatment of them in Libya are so serious that it is in the public interest for them to be investigated now."
Four-and-a-half years later, after the police had accumulated nearly 30,000 pages of evidence, Britain’s Crown Prosecution Service decided there was insufficient evidence to charge Allen with any criminal offence.
"Following careful review," it said in a statement, "the CPS has concluded that there is sufficient evidence to support the contention that the suspect had been in communication with individuals from the foreign countries responsible for the detention and transfer of the Belhaj and Saadi families; disclosed aspects of what was occurring to others within this country; and sought political authority for some of his actions, albeit not within a formal written process nor in detail which covered all his communications and conduct."
Moussa Koussa, the former head of Libyan intelligence (Reuters)
The CPS concluded that Allen – who it described as "the suspect" and a "public official" – had been in contact with countries that detained Belhaj and Saadi in 2004 and had "sought political authority for some of his actions".
MI5 head Eliza Manningham-Buller was so incensed when she discovered the role played by MI6 in abductions that she banned a number of its officers from working at MI5’s headquarters
But it added: "Officials from the UK did not physically detain, transfer or ill-treat the alleged victims directly, nor did the suspect have any connection to the initial physical detention of either man or their families."
Sue Hemming, head of the CPS’s special crime and counter-terrorism division, said: "Following a thorough investigation, the CPS has decided that there is insufficient evidence to charge the suspect with any criminal offence. We made our decision based upon all the available admissible evidence and after weighing up all of the information we have been provided with."
The Metropolitan Police issued a separate statement, saying that its investigation, known as Operation Lydd, had been "thorough and penetrating" and "conducted without fear or favour" over a two-and-a-half year period, resulting in a 28,000-page file of evidence handed to the CPS.
MI5 anger over rendition
It added, pointedly, that the decision to not prosecute Allen was entirely a matter for the CPS. Privately, some of those involved in police investigation expressed anger at the decision, believing they had built a powerful case.
The decision not to prosecute followed an intense debate in the CPS which Jeremy Wright, Britain’s attorney general, was well aware of. It is not clear whether he was formally consulted by the CPS.
What is known is that MI5 was deeply unhappy about the rendition operations and the subsequent interrogations of the two Libyans.
The head of MI5 at the time, Eliza Manningham-Buller, was so incensed when she discovered the role played by MI6 in abductions that led to torture that she banned a number of its officers from working at MI5’s headquarters, Thames House.
The Belhaj family is seeking a nominal sum of £1 each and an apology from each party
She also wrote to Tony Blair, to complain about the conduct of MI6 officers, saying their actions had threatened Britain’s intelligence gathering and may have compromised the security and safety of MI5 officers and their informants.
Meanwhile, lawyers for Belhaj and Saadi – Leigh Day, backed up by the human rights group, Reprieve – pursued a civil claim for damages and an admission of liability by the British government, Straw and Allen. Saadi eventually settled and was paid £2.2m by the government. Belhaj and his wife decided to fight on.
The couple are seeking a nominal sum of £1 each and an apology from each party. The Supreme Court will rule on Tuesday whether their case can be heard in British courts. The defendants are Straw, Allen, MI6, MI5, the attorney general, the Foreign Office and the Home Office.
Lawyer for the British government have argued that the so-called "foreign act of state doctrine" - whereby foreign states and their agents are granted immunity from actions by British courts - means that the case must be struck out.
They argue that since the CIA and agents in Malaysia, Hong Kong and Libya, were involved in the operation, the case could not be heard in Britain.
'There is a compelling public interest in the investigation by the English courts of these very grave allegations'
- UK appeal court
The UK appeal court in 2014 did not agree. It ruled: "There is a compelling public interest in the investigation by the English courts of these very grave allegations. The risk of displeasing our allies or offending other states... cannot justify our declining jurisdiction on grounds of act of state over what is a properly justiciable claim."
It added: "The stark reality is that unless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation."
Lawyers for Belhaj and another man suing the government made the point that the conduct of both British and foreign states was routinely used as evidence in both asylum and extradition cases both in the UK and overseas.
'A political decision'
Jack Straw, who as foreign secretary at the time was responsible for MI6, has always denied wrongdoing, as has Allen. After the Libyan renditions came to light, Straw said: "No foreign secretary can know all the details of what its intelligence agencies are doing at any one time." However, government officials, insisting on anonymity, said MI6 was following "ministerially authorised government policy".
Richard Dearlove, head of MI6 at the time, said: "It was a political decision, having very significantly disarmed Libya, for the government to cooperate with Libya on Islamist terrorism. The whole relationship was one of serious calculation about where the overall balance of our national interests stood."
Tony Blair, pictured here with Muammar Gaddafi, has said he has no knowledge of the case (AFP/File)
Blair said he did not have "any recollection at all" of the Belhaj rendition.
Andrew Tyrie, the prominent backbench Tory MP who has campaigned for several years for a thorough investigation into the UK’s involvement in extraordinary rendition, said: "The public need to be assured that the scope and limits of British involvement in kidnap and torture have been fully investigated.
"They cannot yet have that confidence. Failure to get to the truth would almost certainly result in a drip-drip of further revelations. These could tarnish Britain’s reputation far more than the shorter term impact of an inquiry – preferably judge-led – which gets to the truth."
Cori Crider, lawyer for Reprieve, said this week: "The Belhaj family have had to fight for half a decade just for the basic right to British justice. This was perhaps the most shameful chapter of Britain’s part in the War on Terror: top MI6 officers helped abduct a pregnant woman and four children and sent them to Gaddafi’s torture chambers.
'It was a political decision, having very significantly disarmed Libya, for the government to cooperate with Libya on Islamist terrorism'
- Richard Dearlove, former MI6 head
"The government could have closed this sad chapter years ago - all it had to do was apologise. Instead MI6 has fought bitterly to dodge any trial of their role in CIA torture. All this has meant is that today, in the Trump era, MI6 officers risk getting sucked into American lawbreaking and barbarism all over again. We look forward to learning the results from the Supreme Court."
The Supreme Court will also on Tuesday rule on four other cases. One has been brought by Pakistani-born Yunus Rahmatullah, who was seized by British special forces in Iraq in 2004.
Rahmatullah says he was tortured before being handed over to the US and rendered to Bagram prison in Afghanistan. He was finally released in June last year. Another case was brought by Serdar Mohammed, an Afghan farmer who was held for 110 days by British troops in 2010 before being handed over to Afghan authorities for trial.
He alleges that the Afghan security services tortured him and forced him to thumbprint a document that said he had confessed to being a Taliban fighter. He was freed in 2014 and denies being an insurgent or preparing bombs.