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US Torture Under Scrutiny In British Courts by Andy Worthington

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by Andy Worthington
Featured Writer
Dandelion Salad
www.andyworthington.co.uk
29 July 2009

Andy Worthington, author of The Guantánamo Files, reports on three important court cases in the UK this week, focusing on “extraordinary rendition” and torture in the “War on Terror.” These cases have implications not only for the complicity of the British government in the Bush administration’s flight from the law, but also for the Obama administration, which, on a number of fronts, appears to be doing all in its power to either maintain Bush-era policies or to shield the previous administration from accountability for its actions.

Binyam Mohamed and Jeppesen, “The CIA’s Travel Agent”

Last weekend, lawyers for Binyam Mohamed, the British resident and former Guantánamo prisoner who was subjected to “extraordinary rendition” and tortured in Morocco and in the “Dark Prison,” a CIA prison in Afghanistan, secured what may be a significant victory in their campaign to hold to account those who took part in the rendition program, when the Sussex-based Jeppesen UK, a division of Jeppesen Dataplan, Inc. (which is a wholly-owned subsidiary of Boeing), “dropped its opposition to a case against it being heard in court,” as the Guardian explained.

In the United States, as I explained in an article in May, “Obama’s First 100 Days: Mixed Messages On Torture,” the Obama administration’s Justice Department has resisted attempts by the ACLU to hold Jeppesen accountable for its role as “The CIA’s Travel Agent” (as Jane Mayer described the company in an article for the New Yorker) in the cases of five prisoners: Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi (profiled here). This was in spite of the fact that Sean Belcher, a former Jeppesen employee, stated that Bob Overby, the director of Jeppesen International Trip Planning Services, told him, “We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher also stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured, but added that Overby explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

In April, the 9th Circuit Court of Appeals ruled against the government, demolishing the Justice Department’s assertions that it could invoke the little-used state secrets doctrine to prevent disclosure in the case. In a memorable ruling, the judges declared,

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court [which sided with the government in a previous hearing] agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

The court’s ruling is currently the subject of an appeal by the government, but although it is difficult to see how the administration can prevail, the decision by Jeppesen’s UK division to drop its opposition to a lawsuit filed on behalf of Binyam Mohamed in the UK suggests that, whatever the outcome of the appeal in the US, the disclosure of documents in the UK will provide crucial evidence to bolster further claims against Jeppesen — and should, I believe, be regarded by the Obama administration as another example of the failure of its essentially indefensible policy of preventing scrutiny of Bush-era torture policies. As the Guardian noted, “Jeppesen UK’s decision to drop its opposition to fighting the case in a British court means a wealth of confidential information relating to the alleged rendition process will become public.”

As the Guardian also explained, “Jeppesen contends there is ‘no basis’ to the claims against it. But after Mohamed’s London lawyers, Leigh Day & Co, presented a large volume of evidence — running to 419 pages — which they claim proves the company’s involvement in the rendition process, the British arm of the firm withdrew its attempt to have the case struck out.”

In a letter to Leigh Day & Co., Jeppesen’s lawyers, Allen & Overy, explained the climb-down as follows: “Our client … has undertaken an extensive review of information in order to address and rebut your client’s evidence. During the course of this exercise it has become apparent that due to the scope and diffuse nature of the evidence … there is a real risk that the hearing of our client’s application will descend into a ‘mini-trial’ … In these circumstances, we consider that the most appropriate and proportionate course is for our client to withdraw its application and for the claim to proceed to trial in the normal way.”

This sounds very much like legal-speak for putting off the inevitable — and hoping, perhaps, that some new form of obstruction can be conjured up in the near future — but Clive Stafford Smith, the director of Reprieve, the legal action charity whose lawyers represented Mohamed in Guantánamo and continue to work on his behalf, was exultant. “Jeppesen’s embarrassing U-turn vindicates our fight to expose corporate collusion in torture,” he explained. “Binyam Mohamed, and perhaps many others, are one step nearer to making the directors of companies stop and think before they commit criminal acts for profit.”

Mohammed Saad Iqbal Madni and rendition through Diego Garcia

Mohammed Saad Iqbal Madni, photographed in Guantanamo

On Tuesday, a second case — aimed primarily at the British government, but with implications for the US government too — was launched in London, when Reprieve announced, at a press conference, that it was commencing legal action against the British government for its role in the rendition to torture of the joint Pakistani-Egyptian national Mohammed Saad Iqbal Madni.

I reported Madni’s story in my book The Guantánamo Files, and also revisited it last September, after his release from Guantánamo, in an article entitled, “Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo.” In addition, I was also the only journalist to cover Madni’s case in detail two months ago, in an article entitled, “Revealed: Identity Of Guantánamo Torture Victim Rendered Through Diego Garcia.”

The article in June followed the publication of a report in which Reprieve announced that it had discovered Madni’s identity by reading between the lines of the British government’s admissions, in 2008 (after long years of denials), that it had only just learned from the US government that two prisoners had been “rendered” through the British Overseas Territory of Diego Garcia, which was leased to the US in the 1960s. Although the government refused to provide the names of the rendered prisoners, Reprieve was able to work out, from the limited information made available, that one of the men was Mohammed Saad Iqbal Madni.

At its press conference, Reprieve announced that it was suing the government because a letter to foreign secretary David Miliband, dated July 13, which set out Reprieve’s findings and asked Miliband to confirm that Madni was unlawfully transferred through British territory and to provide him with further details of UK knowledge and involvement in his “extraordinary rendition” and torture, had been “ignored.”

To coincide with Reprieve’s announcement, the BBC interviewed Madni for Radio 4’s File on 4 (with a short video available here), in which Madni ran through his story, explaining how he was kidnapped by the CIA during a trip to Indonesia on family business, and flown, via Diego Garcia, to Egypt, where he was tortured.

Madni told the BBC that he was “shackled tightly and packed in a wooden box on the flight,” and added, “When I arrived in Egypt I was blindfolded and left in a room … they interrogated me three times. Each was for 17 hours and they electrocuted me in my knees.” Madni also stated that “an American interrogator wrote down questions for others to ask,” and explained that he was “made to drink drugged tea.”

He also said that the interrogators “asked if I knew Osama Bin Laden or went to Afghanistan or if I met Richard Reid [the mentally-troubled and inept shoe bomber, who had been arrested shortly before Madni’s visit to Indonesia] or knew anything about a shoe bomb or future attacks.” The questions, as I have explained before, were based on a comment about shoe bombs that was allegedly made by Madni during a visit to a house in Jakarta that was bugged by the Indonesian security services, who subsequently tipped off the CIA. The last time I wrote about it, I explained that

his case “deserves to be more than a mere footnote in the history of the Bush administration’s vile and unprincipled policies of “extraordinary rendition” and torture,” as the suffering inflicted on the 24-year old Islamic scholar — which involved three months of torture in Egypt, followed by eleven months in the US prison at Bagram airbase in Afghanistan and over five years in Guantánamo — was based not on detailed evidence that he was a terrorist, but on a single ill-advised comment picked up by the Indonesian intelligence services.

In a separate interview (available on video here), the BBC also spoke to Clive Stafford Smith, who explained, “The issue for Britain is that Diego Garcia is a British territory, we’re responsible for it and what happens on it … the Americans are meant to tell us what they are doing and we, as supervisor of Diego Garcia, have a responsibility to make sure that crimes do not happen on it.” He added, “I think particularly under the Blair administration there was an awful lot of playing the ostrich where the government knew what was going on but just buried its head in the sand. Now that’s just wrong.”

Addressing the question of the British government’s knowledge of the rendition flights, Stafford Smith said that, when challenged, “each time it [the government] has come forward and put its hands up and said, ‘Ah, well, two people did fly through Diego Garcia,’ they have refused to say who the victims are. To me that is utterly scandalous that you can commit an offence against an individual and then refuse [to reveal] the identity of that individual and refuse to let us at Reprieve help the poor guy get reunited with his legal rights. I think that is so wrong and our government cannot stand there and say they are doing everything they can against torture when they continue to refuse to admit who the victims are.”

Binyam Mohamed, Hillary Clinton and the British judges’ torture summary

Binyam Mohamed on his release from Guantanamo

The third case this week also involved Binyam Mohamed, and is part of his long-running attempt to oblige the British government to reveal information relating to its knowledge of his rendition and torture. This particular process began last April, and I have reported its twists and turns over the last 15 months, involving, in particular, a judicial review in the High Court, in which the judges — Lord Justice Thomas and Mr. Justice Lloyd Jones — criticized the intelligence services for sending agents to interrogate Mohamed in May 2002, while he was being held illegally in Pakistan, and also for providing and receiving intelligence about him from July 2002 until February 2003, when they knew that he was being held incommunicado, and should not have been involved without receiving cast-iron assurances about his welfare.

In the judgment, they stated explicitly that, “by seeking to interview BM [Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.” The judges also seized on an admission, made on behalf of the foreign secretary, David Miliband, that Mohamed had “established an arguable case” that, until his transfer to Guantánamo, “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States,” and ordered the British government to hand over the evidence in its possession — 42 documents in total — to his lawyers.

I have no doubt that the scandal of Mohamed’s rendition and torture, which, last October, was being discussed in courtrooms on both sides of the Atlantic, led to Mohamed’s release from Guantánamo in February this year, when he essentially leapfrogged to the top of the Obama administration’s review of the Guantánamo prisoners’ cases, but the struggle to secure access to the 42 documents held by the British government — or, to be strictly accurate, to a seven-paragraph summary of that information, prepared by the judges and redacted from their initial judgment last August — has been taking place ever since, and shows no sign of being resolved any time soon.

From the outset, the British government has claimed that publication of the judges’ summary — which, as the Guardian explained, consists of “what the CIA knew, and what it told MI5 and MI6, about the treatment of Mohamed” — would damage the relationship between the British and American intelligence services, even though the judges have repeatedly stated that the summary contains nothing that could possibly be described as “highly sensitive classified US intelligence.” As they explained in February,

[I]n the light of the long history of the common law and democracy which we share with the United States, it was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported, as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters. Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials or officials of another State where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.

Two months ago, on the last occasion that the court convened for an update, I reported exclusively that exchanges in the court revealed that a letter from an unnamed Obama administration official, reiterating that disclosure could be damaging to the US-UK intelligence-sharing relationship, had almost certainly come from Secretary of State Hillary Clinton, and this was confirmed on Wednesday, in the latest hearing, when, in a written statement, David Miliband, the foreign secretary, referred to a meeting with Ms. Clinton in Washington on May 12,  and explained, as the Guardian described it, “that she ‘indicated’ that the disclosure of CIA evidence ‘would affect intelligence sharing.’ Pressed repeatedly by the judges on the claim yesterday, Karen Steyn, Miliband’s counsel, insisted that Clinton was indeed saying that if the seven-paragraph summary of CIA material was disclosed, the US would ‘reassess’ its intelligence relationship with the UK, a move that ‘would put lives at risk.’”

This was questioned both by Lord Justice Thomas, who asked, “Is it remotely credible that [the Obama administration] would stop intelligence-sharing?” and by Guy Vassall-Adams, representing the Guardian and other media groups, who have joined with Mohamed’s lawyers in seeking disclosure of the judges’ summary.

As the Guardian described it, Vassall-Adams “told the court that Miliband’s claims — including his account of his conversation with Clinton — ‘lack any credibility,’” and, as is by now familiar, he queried Miliband’s insistence that any material provided by a foreign government must always remain secret, regardless of whether there are any pressing reasons for such material to be released. “The ultimate decision as to where the balance of the public interest lies is a matter for the courts and not for the executive,” he said, “and any [foreign] country providing intelligence to the UK which understood otherwise would be labouring under a fundamental misapprehension.”

Lord Justice Thomas then spoke, saying, as the Guardian described it, “that the absolute control over intelligence material the UK and US governments were claiming was not based on any legal principle,” but was, in his words, “the exercise of naked political power.” He added that the most recent letter from the US government did not prove the foreign secretary’s assertions, but “merely demonstrated that the CIA would like the court to withhold from the public … findings about CIA wrongdoing.”

Whether this impasse will ever be broken remains to be seen, but it is noticeable that the judges’ language has become stronger over time, and that Lord Justice Thomas’s dislike of obstacles raised not to protect national security but to shield agencies and governments from embarrassment — or worse — has become more pronounced. I quoted above from the judges’ ruling in February, in which they were bewildered that a democracy governed by the rule of law could consider suppressing evidence that was “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be,” and in this, the British judges would no doubt concur with the judges in the 9th Circuit Court of Appeals, who, in a footnote to their ruling in the Jeppesen case in April, cited a 1953 letter to President Eisenhower from Attorney General Herbert Brownwell, in which Brownwell wrote that classification procedures were then “so broadly drawn … as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.”

Fifty-six years later, it seems clear that one of the many baleful legacies of the Bush administration’s brutal and ill-conceived “War on Terror” is a similar approach to secrecy, in cases purportedly related to terrorism, in which both the US and its closest allies are regularly infuriating judges by hiding their errors — and, let us be clear, their crimes — behind spurious claims of “national security.” This is more understandable in the UK, where the same government that stood “shoulder to shoulder” with President Bush is still in power, than it is in the US, where the Obama administration’s repeated defence of its predecessors’ horrific policies is causing growing consternation amongst those who believed that Obama would reshape the US as a country founded on the rule of law, but in both countries it is time for the obstruction to stop, and for a true pursuit of truth and justice to prevail.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009. Visit his website at: www.andyworthington.co.uk.

see

Secrets of CIA ‘ghost flights’ to be revealed

from the archives:

Revealed: Identity Of Guantánamo Torture Victim Rendered Through Diego Garcia by Andy Worthington

Did Hillary Clinton Threaten UK Over Binyam Mohamed Torture Disclosure? by Andy Worthington

Spies, Lies and Threats in Binyam Mohamed’s Case by Andy Worthington

Diego Garcia

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