The Baha Mousa Public Inquiry

Day 1:  Monday 13^th July 2009

Mr Gerard Elias QC commenced his opening submissions.  He outlined the background to the Inquiry and address Module 1 concerning the historical use of conditioning techniques since 1972.

Following introductory remarks, the Chairman detailed the sitting times of the Inquiry.

The Chairman went on to say that in a minority of cases, witnesses will be referred to by a cipher rather than by name.  This is for three reasons: he has issued an order granting anonymity; a witness’s application for protective measures has not yet been determined; someone who is not a witness is named and holds or has held a post which requires anonymity.   The Chairman then introduced Counsel to the Inquiry, Mr Gerard Mr Elias QC.

Mr Elias began by introducing all counsel before repeating the terms of reference: “To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations which have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment (1 QLR) in Iraq in 2003, and to make recommendations.”

Mr Elias emphasized that in contrast to the court martial which sought to ascertain guilt on criminal charges, this Inquiry focused on truth and responsibility and thus goes a lot further in its investigations and subject matter.  The issues include: detailed investigation of detention, handling, treatment and questioning of detainees; ultimate responsibility/chain of command; medical (and other) checks in place; causes of death; conditioning techniques and who ordered them; training given; MOD, Cabinet and Army role; Heath Ruling 1972; changes implemented since Baha Mousa’s death.

Mr Elias then gave an outline of his opening statement which would take eight days.

1 QLR were deployed to Basra during Op-Telic II from June until November 2003. Their role was stabilization and construction. They found themselves working long hours in a volatile and hostile environment with temperatures above 50 degrees and looting rife.  Their tasks became largely policing and running essential infrastructure. Part of this role was the ability to detain civilians.

Early on September 14^th 2003 Operation Salerno began.  It was a ‘soft knock’ operation searching for former regime loyalists and Iranian insurgents thought to be hiding in hotels in Basra.  At Hotel Ibn Al Haitham weapons were found and seven civilians detained.  Six civilians were taken to Battle Group (BG) Main army base whilst one was taken to find another who had fled the scene (C001).

Abuse began en route and continued at BG Main Temporary Detention Facility (TDF) including the use of the ‘five techniques’ (hooding, stress positions, sleep deprivation, noise, inadequate food and water).  Other abuse included being made to dance, nipples played with, held to generator, lying face down over toilet, toilet water flushed over head.

Corporal Payne and a series of different soldiers guarded the detainees.  Within 36 hours Baha Mousa was dead from 93 injuries and/or asphyxiation.  Corporal Payne and Private Cooper were involved in the final struggle with Baha Mousa in attempting to restrain him and his head hit the ground.  New evidence would indicate there was more premeditation in this act than has been suggested to date.  Many witnesses gave evidence telling of screams and moaning coming from the TDF throughout Sunday and Monday.

At this point a one minute video was shown of Corporal Payne shouting and man-handling 6 detainees in stress positions, hooded and with plasti-cuffs around their wrists.

Module 1

Mr Elias turned to Module 1:  Government, Army and MOD approach to conditioning 1972 – 2003.  In 1972 the then Prime Minister Heath told the House of Commons that the 5 techniques would not be used in “any future operations” and incorporating “all future circumstances” unless Parliament decided otherwise.  Parliament has never decided otherwise.   Mr Elias made it clear that the decision to prohibit the use of the 5 techniques was intended to bind the armed forces and others in all future operations worldwide. Yet 1 QLR officers such as Colonel Mendonca and Major Royce appear to have been unclear whether the 5 techniques had been formally prohibited.  A memorandum from Brigadier Mason of Permanent Joint HQ (PJHQ) responding to a question on the legality of hooding states it is “unclear what the parameters are” and it is “impossible to say”.

There was uncertainty remaining even in 2004 as to whether the Heath Ruling applied outside Northern Ireland.  A further PJHQ memorandum stated they were unaware of the Heath Ruling “until it was raised 2 weeks ago”.  The Inquiry was urged to investigate the lack of specific guidance, orders or standard operating instructions on the use of hooding and stress positions filtered down to soldiers.  How were the government statements incorporated (if at all) into   Ministry of Defence training manuals?

Before 1972, Mr Elias referred first to the Roderick Bowen QC report on the procedures for the arrest, interrogation and detention of suspected terrorists in Aden.  The relevant recommendations: close present interrogation centre; Interrogators should be civilians; medical care providers should be civilians; detainees should have daily medical check-ups; medical reports should be completed without delay; those who arrest should act with restraint

Mr Elias moved onto address the Joint Intelligence Committee (JIC) directive on military interrogation in internal security operations overseas (JIC( 65) or the ‘65 Directive’).  The aim of this document was to provide military and civil authorities with advice and lay down rules for interrogation.

JIC (65) emphasized the importance of treating Prisoners of War (POWs) according to the Geneva Conventions.  Information gained from torture or CIDT was considered unreliable.   There may have been a long process covering day and night (“psychological attack”) and it should be carried out with “rigid discipline” using permissible techniques.  However, it did not give any more details on what permissible techniques were.

JIC (65) was slightly amended in 1967 following the Bowen Report to allow greater medical oversight.  However, the government claimed not to have the resources to implement his recommendations on using civilians rather than army staff.

Mr Elias moved on to consider the introduction of Internment in Northern Ireland in August 1971 and the subsequent claims of maltreatment by 12 detainees upon release from “in depth interrogation” at Ballykelly Airfield.

An inquiry was announced with terms of reference covering brutality during in depth interrogations.  The Compton Report emerging from the inquiry concluded that the 5 techniques were ill-treatment but did not amount to brutality.

The defense from the government, the MOD and the army included: the value of the information gained in saving lives (that the ends justify the means); the techniques had a dual purpose and as well as softening up before interrogation they were to protect the internees from IRA reprisals and the interrogators from internee attacks; the techniques were necessary in times of emergency (even if they could not be defended by legal considerations); and their own troops went through the techniques in training with no lasting ill effects.

The Compton Report pleased neither the Northern Ireland nationalist community who said it was a whitewash nor the British government who thought it made no effort to paint the techniques as a legitimate method to stop ruthless murderers.  The Parker Inquiry was announced immediately.

Mr Elias proceeded to outline in great detail the growing difference of opinion between the Intelligence Coordinator (Dick White) and the Joint Service Interrogation Wing (JSIW) based army advice (MOD) regarding the use of the 5 techniques following the Compton report and in the build up to the Parker Inquiry.  The government was naturally anxious that all arms of their administration issued the same party line.