In August 2008, while British resident Binyam Mohamed still languished in a prison cell in Guantánamo, two British High Court judges attempted to inform the public about what, in May 2002, the CIA had told their British counterparts about how they had treated him while he was being held in Pakistani custody, shortly before a British agent interrogated him.
The judges were Lord Justice Thomas and Mr. Justice Lloyd Jones, and their attempt to inform the public came in a judgment that followed a judicial review of Mohamed’s case during the summer of 2008, which was itself triggered by the British government’s refusal to release 42 documents in its possession regarding his detention in Pakistan.
August 2008: The quest to reveal information about US torture begins
In their judgment last August, the judges made it clear that they were appalled by the global torture program in which they had found themselves unexpectedly immersed. In one of the most extraordinary stories in the “War on Terror,” Mohamed, a British resident picked up in Pakistan in April 2002, had been rendered by CIA agents to Morocco in July 2002, where he had spent 18 months being tortured, had then been rendered to Afghanistan, to the “Dark Prison” outside Kabul, a secret prison run by the CIA, where he had spent another four months, and had then been flown to Guantánamo, where he remained while the judges grappled with the largely classified evidence of a global web of kidnapping and torture.
In a remarkable ruling, the judges roundly condemned the British government for sending an agent to Pakistan to interview Mohamed in May 2002, when he was being held incommunicado (which was illegal), and for providing and receiving intelligence about him for at least eight months after his disappearance from Pakistan, even though the British intelligence services claimed not to know where he was being held, 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.”
As I explained in an article last November:
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 ruled that, because the information obtained from Mohamed was “sought to be used as a confession in a trial [by Military Commission at Guantánamo] where the charges … are very serious and may carry the death penalty,” and that it is “a long-standing principle of the common law that confessions obtained by torture or cruel, inhuman or degrading treatment cannot be used as evidence in any trial,” the British government was required to hand over the evidence — 42 documents in total — to his lawyers.
In the end, however, the judges stopped short of ordering the government to release the 42 documents — and also stopped short of including in their judgment a seven paragraph summary of these documents — bowing to pressure from David Miliband, who, in the absence of any other straws to which to cling, urged them not to order disclosure of the documents because of national security concerns; specifically, that to do so might damage the intelligence-sharing relationship between the UK and the US.
Developments in the US, and an unusual request from the British judges
Much has changed in the 14 months since this initial judgment. Last October, in the United States, the Justice Department responded to similar pressure to release the documents, applied by a judge in Mohamed’s habeas corpus petition, by dropping the central allegation against him — that he was involved, with US citizen Jose Padilla, in a plot to detonate a radioactive “dirty bomb” in New York — and, in November, the Defense Department shelved Mohamed’s proposed trial by Military Commission, which focused on the same spurious claims.
To anyone who had been studying the case closely, this was a relief, as, back in June 2002, before Mohamed’s rendition to Morocco, and just a month after Padilla’s capture (and before his long isolation and torture on the US mainland), Paul Wolfowitz, the deputy to US defense secretary Donald Rumsfeld, admitted that “there was not an actual plan” to set off a “dirty bomb” in America, that Padilla had not begun trying to acquire materials, and that intelligence officials had stated that his research had not gone beyond surfing the Internet.
Despite these developments in the US, the British judges found themselves engaged in a far more intractable struggle with their own government. In two hearings that followed their August judgment, the foreign secretary produced correspondence from US State Department officials, clearly threatening the intelligence-sharing arrangement between the US and the UK should the documents be released.
In a first letter, dated August 21, 2008, John Bellinger, the US State Department’s Legal Adviser, stated that disclosure of the documents — or of the information they contained — was “likely to result in serious damage to US national security and could harm existing intelligence sharing arrangements between our two governments,” and in a second letter, dated September 5, 2008, Stephen Mathias, the State Department’s Assistant Legal Adviser, went one step further, suggesting that there would be “serious and lasting damage to the US-UK intelligence sharing relationship,” should the documents — or the information they contained — be disclosed.
Even so, the judges were reluctant to give up, and, in November, took the highly unusual step of soliciting responses from the media regarding their decision to bow to pressure from the government and not release their summary of the documents, by stressing that “the issue is one of considerable importance in the context of open justice,” and noting that, in the opinion of the Special Advocates (lawyers assigned to represent Mohamed in the closed sessions of the judicial review, which included most of the cross-examination of the British agent who had interviewed him in Pakistan), the government’s Public Interest Immunity Certificate (the document urging non-disclosure) “failed to address, in the light of allegations made by BM [Mohamed], the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment.”
In seeking to reopen their judgment, the judges recognized that the requirements of “open justice” needed to be offset against two factors in the government’s favor. The first, as they described it in their most recent judgment last Friday (PDF), was the “principle of control over evidence,” and, as they explained:
There can be no doubt that there is a general principle or convention that intelligence information received by one State from another will not be released into the public domain or otherwise used without the consent of the state supplying it.
However, as they also noted, although States would “normally be expected to resist the making of a court order for disclosure,” the “principle of control over evidence … cannot be considered an absolute principle,” because “court ordered disclosure is well understood by the Governments of the United States and the United Kingdom to be an exception to the principle of control.”
The second factor that needed to be considered was the explicit threat provided by the United States, regarding the intelligence sharing relationship between the US and the UK, and it is on this point that, since the election of Barack Obama as the 44th President of the United States, the British government has, to be blunt, struggled to establish that the new administration has made the same threats as the Bush administration.
The key question of how the Obama administration regards the disclosure of US torture
In response to the judges’ request for input from the media regarding the seven paragraph summary, the journalist David Rose made a submission on November 30, in which he “pointed out that the position had changed significantly with the election of ‘a US President avowedly determined to eschew torture and inhuman and degrading treatment,’” and added that the new administration was “unlikely to protest at further confirmation that its predecessor saw the inhuman and degrading treatment of detainees as acceptable.”
On December 18, the foreign secretary responded, stating that “the situation has not changed since the election of Barack Obama.” He added, “The concern relates to the disclosure of closed information,” and also claimed, “The Secretary of State’s assessment of the likelihood of and severity of the damage to national security has not changed.”
Mohamed’s lawyers then responded by stating that the foreign secretary’s assertion “needed to be proved by evidence,” but, as the judges noted, “Unfortunately, the letter [from Mohamed’s lawyers] was not copied to the court. No response was made by the Treasury Solicitor on behalf of the Foreign Secretary. That omission proved, in the event, to be regrettable.”
As a result — unaware that the government’s assertions had been challenged — the judges issued a fourth judgment on February 4, 2009, in which, yet again, they reluctantly defended the government’s position. However, it appears, from last Friday’s judgment, that they almost immediately regretted making this decision, for the following reasons.
Firstly, David Rose responded immediately by asking the Foreign and Commonwealth Office “how the Foreign Secretary could know that the threat made by the Bush Administration … was being maintained by the Obama Administration.” In response, a spokesman for the foreign secretary conceded, “We have not approached the new Administration about these paragraphs,” leading the judges to conclude, as they explained last Friday, that:
… when questions were asked of the Foreign Secretary, both in the media and in Parliament, as to whether there was any change of position of the Obama Administration, his response was made in relation to the general principle of control over intelligence and not in relation to the specific statement made by the Bush Administration that it would reconsider its intelligence sharing relationship.
In the meantime, in a move that appeared to have been designed to take the heat off both the British and American governments, Binyam Mohamed was actually released from Guantánamo, arriving back in the UK on February 23, but the case, of course, had a lumbering legal life of its own, and refused to go away.
As the judges noted, statements made by spokesmen on behalf of President Obama in this period never “went beyond restating the general principle of control over intelligence,” and they cited a letter dated March 24, 2009, in which Daniel Bethlehem QC, the FCO’s Legal Adviser, referred to a statement made by the Press Office of the National Security Council on February 4, in which it was stated, “The United States thanks the UK government for its continuing commitment to protect sensitive national security information and preserve the long-standing relationship that enables both countries to protect their citizens.”
As the judges added, “No statement reiterated the position taken by the Bush Administration that if we did make the seven redacted paragraphs public, then there would be consequences in the form of a reconsideration of the intelligence sharing relationship.”
Moreover, by April 22, during another hearing, it became clear to the judges that, “despite the meetings that had taken place between officials and Ministers of the United Kingdom and United States, no one on behalf of the United Kingdom Government had, in the period between the handing down of our [fourth] judgment on 4 February 2009 and the hearing before us on 22 April 2009, asked the Obama Administration whether, in the event of our making the information in the redacted paragraphs public, his Administration would reconsider the intelligence sharing relationship.” In the most crucial lines, they added, “It appears to be the position that it was assumed, in the absence of a statement by the Obama Administration, that the position had not changed, but no one sought any confirmation.”
As a result, the judges stated that, in response to David Rose’s submission on November 30, 2008, “all the Foreign Secretary could properly have stated to the court (because he had no basis for saying any more) was that he did not expect there would be any change in the position of the Obama Administration,” adding, “He should have informed the court that he did not know what the position of the Obama Administration was as to the specific consequences of publication.”
The judges’ decision to reopen their judgment
This, in turn, led to the judges’ decision to reopen their fourth judgment on May 6, and, through a discussion of other submissions made during the April 22 hearing (in last Friday’s judgment), they also made it clear that they had been persuaded that “President Obama had publicly expressed very different views on issues of torture, interrogation techniques and transparency from those of officials of the Bush Administration, including Mr. Bellinger, legal adviser to the State Department, and Secretary of State Rice.”
They also attached particular importance to Obama’s decision, on April 16, to release “a number of memoranda issued by the United States Department of Justice’s Office of Legal Counsel dealing with the treatment of al-Qaeda detainees” (generally known as the “torture memos”), clearly agreeing with Mohamed’s lawyers, who told the court on April 22 that, “in the light of the making public of these memoranda, it was quite impossible to contend that the Obama Administration would ever have contemplated reconsidering the intelligence sharing relationship with United Kingdom if we made the redacted paragraphs public.”
It also transpired that the judges had been influenced by “an interim statement” made by the Obama administration, which “made clear that the United States Government was ‘considering the decision on the public disclosure of the US intelligence information that is summarized in the seven paragraphs,’” but had not yet made a decision.
However, just before the judges decided to reopen their judgment, the Treasury Solicitor, acting on behalf of the foreign secretary, submitted a two paragraph summary of a letter, dated April 30, “from an entity of the United States Government to an entity of the United Kingdom Government (the details were redacted), which, it was claimed, established that the Obama administration was following its predecessor’s line, and maintaining that disclosure of the judges’ summary would have serious consequences for the intelligence sharing relationship between the US and the UK.
Even at the time, based on the limited information available, Mohamed’s lawyers established that, in fact, “the two paragraphs stated what could happen, [and] did not state what would happen,” and, in the months since, this interpretation has become even clearer. Despite requests by the judges for disclosure of the identity of the agency that sent the letter, and for disclosure of the full contents of the letter, which, in their opinion, could not justifiably be suppressed due to national security concerns, it took until July 15 for the FCO to admit that the letter had been sent by the CIA to the British intelligence services, and it took until the judgment last Friday for the full contents of the letter to be revealed, in which, as the judges explained succinctly, “no threat was made.”
In a key passage, the CIA letter stated:
The seven paragraphs at issue are based upon classified information shared between our countries. Public disclosure of this information reasonably could be expected to cause serious damage to the United Kingdom’s national security. Specifically, the disclosure of this information may result in a constriction of the US-UK relationship, as well as UK relationships with other countries.
This reinforced what Mohamed’s lawyers had stated back in May, but in the most shocking passage in the whole judgment, the judges explained that representatives of the foreign secretary and the intelligence services had told the judges that they “were better placed in interpreting the letter than other persons and the court,” and, remarkably, that the foreign secretary’s view, “based on such advice, was that ‘could’ should be read as meaning ‘would,’” and that, therefore, the letter “contained an explicit statement of consequences.”
This, of course, was too much for the judges, who responded by stating that both the CIA’s letter — and a follow-up, dated June 30, from General James L. Jones, the Assistant to the President for National Security Affairs, to his British counterpart, confirming that the CIA’s April 30 letter “reflected the views of the United States Administration” — were “written in plain English,” and that they “do not require expert interpolation to be placed between the drafter and the court.”
With this dismissal of the government’s claims, it remained only for the judges to dismiss an additional claim that Secretary of State Hillary Clinton had stated that “there was no difference between the position of the Bush and Obama Administrations as to the consequences that would follow,” should the judges’ summary be released. This they did by pointing out that the minutes of a meeting on May 12, which were relied upon by the government for its claim, actually demonstrate that Secretary Clinton had been discussing the 42 documents, “which contain intelligence information,” and not the judges’ seven paragraph summary, which, as they have maintained all along, “do not contain anything of an intelligence or secret nature.”
And so, with further mention of “the exceptional circumstances of the present case,” with its “unprecedented” proceedings, concerning “matters of great public importance,” the judges ruled that, following President Obama’s release of the “torture memos,” it “is now impossible to contend that details of the interrogation methods are themselves matters of intelligence,” and that, because no threat had been demonstrated by the British government, “a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.”
They concluded, “We shall therefore re-issue our first judgment with the paragraphs restored.”
Devastating admissions beyond the scope of the judgment
This is not the end of the story, of course. The government, predictably, has appealed yet again, but whilst it is, of course, vital for “open justice” that the judge’s redacted paragraphs are restored, it should be noted, in conclusion, that the entire sordid story of cooperation between the US and the UK in the torture of Binyam Mohamed goes deeper than this judgment allowed the judges to delve.
As they noted in passing (and as I explained at length in an article in August, “What The British Government Knew About The Torture Of Binyam Mohamed”), new revelations this summer confirm that the British intelligence services had been sharing intelligence with their US counterparts until May 2004 (and not February 2003, as previously stated), and that, far from not knowing where Mohamed was being held between July 2002 and January 2004, the British government had actually sent an agent to Morocco to interview him. In their judgment, the judges noted, with apparent regret, that, had these facts surfaced earlier, they would have led to further cross-examination of the agent who interviewed Mohamed in Pakistan, and that it was “inevitable that we would have made further findings, some of which we would have put into the open judgment.”
This is perhaps something of an understatement. This summer it also transpired that the British government had sent a spy to Morocco to interview Mohamed, as well as a British agent. As the government struggles to continue its 14-month mission to suppress evidence of US torture in Pakistan (and its complicity in it), it should also be bracing itself for fresh challenges regarding the apparent perjury of the agent who was cross-examined by the judges in the summer of 2008, and for further challenges regarding its increasingly obvious complicity in the long ordeal of Binyam Mohamed in Morocco and Afghanistan, which indicate that much more “wrongdoing” is at stake than was conceived of by Lord Justice Thomas and Mr. Justice Lloyd Jones, when they wrote last August that “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.”
As published exclusively on Truthout.
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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (launched in October 2009), and, if you appreciate my work, feel free to make a donation.
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