February 26, 2010
On February 10, the Court of Appeal brought to an end an 18-month campaign by foreign secretary David Miliband to prevent the publication of a short summary, prepared by two High Court judges, explaining how US agents had subjected the British resident Binyam Mohamed to what was described as "at the very least cruel, inhuman and degrading treatment," and had provided this information to their British counterparts.
This was a major step towards holding government officials accountable for complicity in torture, but when a letter from Jonathan Sumption QC, acting for the government, was accidentally released to the media, it became apparent that, at Sumption’s request, a paragraph in the ruling, written by Lord Neuberger, the Master of the Rolls, had been removed. The paragraph in question was severely critical of the trustworthiness of the Security Services, and Sumption was concerned that it was "likely to receive more public attention than any other parts of the judgments."
In a ruling today (PDF), the judges restored the paragraph, although they made it clear that no one had acted improperly, and that the government was perfectly entitled to ask for changes to be made to what was, at the time, a draft judgment. The judges wrote that they were concerned that "a damaging myth may develop that in this case a Minister of the Crown, or counsel acting for him, was somehow permitted to interfere with the judicial process. This did not happen, and it is critical to the integrity of the administration of justice that if any such misconception may be taking root is should be eradicated."
Nevertheless, Lord Neuberger decided to restore his original paragraph, explaining that, although "Mr. Sumption’s concerns about the first draft paragraph 168 were justified," these concerns were "to a significantly more limited extent than I had initially thought," and that "it was right to revert to the first draft of paragraph 168."
The restored paragraph is reproduced below, and the full, amended ruling can be found here:
168. Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that "they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training" (paragraph 9 of the first judgment), indeed they "denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government" (paragraph 44(ii) of the fourth judgment).
Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B [the British agent who visited Mohamed while he was being held in Pakistan, under US supervision, in May 2002], but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel.
Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.
Responses to the restoration of the paragraph were swift. Liberal Democrat foreign affairs spokesman Ed Davey said, "The implication that David Miliband had the wool pulled over his eyes is deeply embarrassing for the foreign secretary. However, the suggestion that he acted in good faith means the real questions need to be answered by others in Government. Did former Foreign Secretary Jack Straw sign off on the 'coercive techniques’ referred to in the judgment?" Davey concluded by calling for an inquiry. "The suggestion that there were others in the security services involved in unacceptable practices makes the need for a full judicial inquiry irrefutable," he said.
Cori Crider, the legal director of Reprieve, which has represented Binyam Mohamed since he was in Guantánamo, said, "The sun shone on open justice today. Throughout this process the judges have shown the utmost integrity and concern for the public interest — one hopes the UK justices’ brethren across the sea are taking notes."
Kate Allen, the director of Amnesty International UK, also spoke out. "This whole affair has been bedevilled by attempts to block the truth about torture ever getting out," she said, adding, "Today is another small victory against those who would like to keep these matters shrouded in darkness."
To this I would add that the judges’ questions about the Security Services’ "dubious record" with regard to "frankness" concerning Binyam Mohamed should prompt a close examination of a story that emerged last year — but was little noticed at the time — indicating that the British government and the Security Services lied about not knowing what happened to Binyam Mohamed after his detention in Pakistan, when he was rendered by the CIA to Morocco.
This was outside the scope of the judicial review that led, finally, to the ruling by the Court of Appeal, but, as I explained in a series of articles last year — "UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco," "Government Bans Testimony On Binyam Mohamed And The British Spy," and "What The British Government Knew About The Torture Of Binyam Mohamed" — it involves a Moroccan-born informer (a British resident identified as witness A), further revelations about witness B, revelations about unacknowledged visits to Mohamed while he was held in Morocco, where he was brutally tortured, and lies about the duration of the intelligence-sharing relationship between the US and the UK regarding Mohamed.
It’s time, I think, for another can of worms to be opened up to scrutiny.
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, updated in January 2010, details about the new documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, "close to suicide" in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of "betrayal" by the UK (September 2008), US Justice Department drops "dirty bomb plot" allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the "War on Terror" (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the "Dark Prison": Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Former Guantánamo Prisoner Binyam Mohamed Speaks (Video) (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009).