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Clive Stafford Smith
Human rights lawyer Clive Stafford Smith whose clients include Guantanamo Bay detainees. Photograph: Murdo Macleod/Murdo Macleod
Human rights lawyer Clive Stafford Smith whose clients include Guantanamo Bay detainees. Photograph: Murdo Macleod/Murdo Macleod

MoD facing legal action over pair held without charge in Afghan jail

This article is more than 14 years old

The Ministry of Defence faces legal action over its refusal to identify two men handed over by British troops in Iraq to American forces who subsequently transferred them to the infamous "dark prison" at Bagram in Afghanistan.

The men, believed to be from Pakistan, were arrested by SAS soldiers in 2004. In February this year John Hutton, then defence secretary, told MPs that the men had been sent to Afghanistan contradicting earlier assurances made by defence ministers to the Commons that they were still in custody in Iraq.

In July, Bob Ainsworth, Hutton's successor, told Andrew Tyrie, chairman of the all-party group on extraordinary rendition, that the men were being held in Bagram prison, where they remain still.

Reprieve, the legal charity, and Leigh Day, the charity's lawyers, are planning to sue the MoD over what they say is a cover-up by the British government in the case, the Guardian has learned.

The two men have not been charged with an offence. A periodic review of their status by the US military has been described by an American federal judge as a process that "falls well short of what the supreme court found inadequate at Guantánamo", according to Reprieve.

The MoD claims that revealing the identity of the men would breach their rights under the Data Protection Act.

Reprieve lawyers say, however, that that stance is "patently absurd" since establishing their identity would allow their families to apply for habeas corpus to secure their release.

Hutton told MPs that the two men were members of Lashkar e Tayyiba, a group linked to al-Qaida, and that the US transferred them to Afghanistan because of a lack of linguists able to interrogate them in Iraq.

Reprieve says that claims of Lashkar e Tayyiba links had been made regarding 13 prisoners held at Guantánamo Bay, the US detention camp. Of those, 10 were subsequently cleared of the allegation.

The Commons foreign affairs committee this week chastised the government over the transfer to Bagram of the two Pakistani men captured by UK soldiers in Iraq. "We do not regard the stated reason for this transfer, that US forces did not have sufficient linguists available in Iraq, as being convincing," it said.

It added: "We further conclude that it is not acceptable that the government is unable to identify these detainees, or to provide assurances about their subsequent treatment." It urged the government to identify the two men, and say what steps it had taken to discover whether they had been treated in an acceptable way since being transferred to US forces.

David Miliband, the foreign secretary, told the committee: "There was no question of British personnel collaborating or colluding in rendition to Afghanistan."

Reprieve says that the MoD has become "mixed up, unwittingly or otherwise, in the wrongdoing committed by the US authorities".

In his statement to MPs in February, Hutton admitted that UK officials knew about the transfer of the two prisoners in 2004. He said references to them had been made in "lengthy papers" sent in April 2006 to Jack Straw and Charles Clarke, then the foreign and home secretary, respectively. "It is clear that the context provided did not highlight its significance at that point to the ministers concerned," Hutton said.

Reprieve's director, Clive Stafford Smith, said : "These two men have been held in appalling conditions for five years, and for all that time the British government chose to do nothing. While we have not been able to identify their full names, we have learned that at least one of the men is now suffering from very serious mental problems as a result of his mistreatment. We have an urgent moral, as well as legal, duty, to repair the damage it has caused."

He added: "How many more times is the government going to say one thing – that they never cover up complicity in torture – while doing the opposite? Here, the government admits its involvement in the crime of rendition, says it apologises, but then does nothing to reunite the victims with their legal rights."

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