The Baha Mousa Public Inquiry

Day 8: Thursday 23rd July 2009

Gerard Elias QC continued his submissions regarding Module 3 and training in the conditioning techniques and Module 4.

Opening Statement by Counsel to the Inquiry Mr Gerard Elias QC continued.

Op-Telic I was briefly addressed first.   An April 2003 Sky News video of a round-up operation was shown.  Hooding, cuffing and potentially mild stress positions are all evident.  A marine war diary extract was read out describing conditioning and stealing money as common occurrences. A Joint Services Interrogation Organisation (JSIO) (Soldier 011) email described prisoner handling as poor and blamed the outdated prisoner handling TQing course.  A further document states that JWP 1-10 was outdated but the troops do not read it anyway.  At best they are trained what not to do, but never what to do.

Regarding Op-Telic II, Mr Elias began by emphasizing that the Inquiry must investigate who knew what, and who saw what, at command level.

Colonel Mendonca’s statement to the Inquiry and Fragmentary  Orders (FRAGOs) relating to Operation Lightening were displayed in order to prove that Brigade level must have known what terms like ‘conditioning’ and ‘bagged and tagged’ meant.

Brigade and Divisional level emails following Baha Mousa’s death were shown to the Inquiry.  The issues raised included a need to review TQing and questions asked such as:  who was responsible for prisoner welfare; what were the permitted timeframes regarding detention and interrogation; was hooding and cuffing allowed; and is there a ‘bible’ governing prisoner handling.

Mr Elias said it was important to note that there was clearly no surprise at Brigade level that hooding was being used.   It was also alarming that those in command were asking such questions.  Only one piece of evidence (an email from Barnett) suggested a commander was not aware hooding was still in operation at Battle Group (BG) Main. 

A further batch of emails dating from May 2004 were shown to the Inquiry.  The public scrutiny of army methods was high at this time due to the Abu Ghraib allegations, the fake Daily Mirror abuse photographs and extracts from a confidential Red Cross report criticising coalition forces appearing in the Wall Street Journal.

The emails displayed a lack of clarity on whether the 1972 Heath Ruling applied outside of Northern Ireland.   Hooding was regarded as a standard operating procedure (SOP) in Iraq (for security at the very least) and though no guidelines could be found there was attempt to seek advice in advance of Op-Telic.  Evidence that some thought General Brims directive banning hooding only came into force after Baha Mousa’s death.

Mr Elias emphasized that there was not one voice from the army on the extent of, or justification for, using hoods.

Mr Elias stated that Colonel Mendonca had ultimate responsibility for prisoner welfare but that there was significant divergence of opinion between different witnesses.  RSM Briscoe and Major Royce of Battle Group Internment Review Office (BGIRO) stated that the BGIRO had specific responsibility for prisoner handling and welfare and Provost Staff (Smith and Payne) reported to him.  Mendonca agreed.  Smith agreed in one statement but in another suggests that TQers had overriding authority.

Major Peebles (BGIRO) stated that no one reported to the BGIRO and that the RSM had responsibility for prisoners.

Statements were shown suggesting TQers issued briefs on prisoner transit before lift operations, and instructions on how to detain prisoners awaiting questioning.

FRAGO 29 introduced the BGIRO role to prisoner handling procedures.  However it did not expressly state that the BGIRO was responsible for prisoner handling and welfare.  However, in implementing FRAGO 29, did 1 QLR transfer the responsibility to the BGIRO?  There was a clear lack of clarity in the line of responsibility for prisoner welfare.

The Inquiry was asked to investigate the above conflicts in opinion to determine who had responsibility for prisoner welfare.  The question of who the TQers report to and what their authority/influence was also very important.

Mr Elias emphasized that the Inquiry was at an early stage of evidence/statement witness gathering on this topic but intended to cover five main episodes:

1.                   The detailed directive covering interrogation policy in Iraq which should have been issued prior to Op-Telic

2.                   PJHQ and MoD involvement in the spring 2003 hooding debate.

3.                   The response to Baha Mousa’s death.

4.                   The allegations of prisoner abuse in April 2004 prompting the public debate.

5.                   The contradictory evidence given to the Parliamentary Joint Committee on Human Rights by Adam Ingram MP and Lt. General Brims.

Mr Elias noted that the Inquiry was still pursuing the Cabinet Office to disclose all documents relevant to Module 3 from the time of preparing for the Iraq invasion to the present.  The MOD claimed to have found only five relevant documents.

The Inquiry also saw structure charts detailing potential witnesses.  These included the then Secretary of State for Defence the Right Honorable Geoff Hoon MP and downwards within the MoD, the Armed Forces Minister at the MoD the Right Honorable Adam Ingram MP, the senior figures within PJHQ, and the command structures of Op-Telic I and II.

Module 4

Mr Elias then turned to Module 4 Issues: The Future and Recommendations

This module examines the changes to orders, training and supervision.  It would ask whether the changes made are adequate to prevent future abuse.  The Inquiry would see the positive changes such as: much clearer guidance on the five techniques during TQing training; better guidance on responsibilities during the prisoner handling process; straight forward advice on hooding; and clearer advice in general on conditioning techniques.  The Inquiry must thoroughly critique these changes.  Mr Elias did flag, by way of example, two concerns regarding the subsequent thinking following Baha Mousa’s death:

1.                   A short lived attempt by PJHQ to reintroduce limited permission to hood. Based on an argument that the ban was a knee-jerk reaction to public outrage at a time when the MoD had no adequate doctrinal guidelines to justify its use in limited circumstances as a last resort. The Inquiry must address what re-opened the hooding question.

2.                   Harsh questioning techniques included as part of JSIO training.  A video clip shown which has been described as an “ideal example of how to question and interrogate”, yet is in contravention of several Geneva Convention principles.

The Inquiry adjourned until 16^th September 2009.