Binyam Mohamed is one of the victims of TWAT (The War Against Terror).
The bare facts are:
Mohamed, arrested in Pakistan in April 2002, was accused of training at al Qaeda camps in Afghanistan, joining a squad of al Qaeda bomb-makers in Pakistan and plotting to set off a radioactive bomb in the United States.
In October (2008), the Pentagon official overseeing the Guantanamo war crimes court dismissed all charges against Mohamed…
He claimed to be a victim of torture, implicating both US and UK agents in that torture:
Mr Mohamed, 30, alleges he was tortured by US agents in Pakistan, Morocco and Afghanistan between 2002 and 2004 and that UK agencies were complicit in the practice.
The torture he alleges is particularly horrific:
By his account he was tortured; his penis and chest sliced with a scalpel and a hot stinging liquid was poured into the open wounds.
In Bush‘s TWAT, such stories are all too familiar. What sets Binyam Mohamed’s case apart from the others is that there appears to be specific documentary evidence that would support Binyam’s contention that a) he was tortured, and b) US and UK agents were complicit in that torture. And this documentary evidence resides in the UK, so suppressing it isn’t as simple as invoking the state secrets privilege.
The evidence consists of “a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born Mohamed before he was secretly interrogated by an MI5 officer in 2002.”
There has been a lively legal tussle in the UK for several months now over whether this evidence can and should be publicly released.
In February, two senior British judges, Lord Justice Thomas and Lord Justice Lloyd Jones, revealed that they were sympathetic to the release request:
The judges said they wanted the full details of the alleged torture to be published in the interests of safeguarding the rule of law, free speech and democratic accountability.
However, they reluctantly held back, swayed by the testimony of Foreign Office lawyers that the US had threatened to end intelligence cooperation with the UK if the evidence was made public. They made it clear, in their judgment, that they were extremely angry at being bullied and blackmailed into keeping the CIA summary secret:
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 … relevant to allegations of torture and cruel, inhumane, or degrading treatment, politically embarrassing though it might be.
That led to a nice little furor in Britain over the U.S. government strong-arming. Next thing anyone knew, Foreign Secretary David Miliband was flatly contradicting the testimony of his Foreign Office lawyers, and saying that the U.S. had never threatened to withdraw intelligence cooperation.
All that happened back in February. Since then, there has been a continuing legal tussle over making the evidence of Binyam Mohamed’s torture public. The British media had sued for full disclosure. Binyam Mohamed’s lawyers vigorously supported the suit. But the British Foreign Office insisted that disclosure would compromise national security. And it still argued that disclosure would compromise intelligence-sharing agreements with the US (although the US had not actually threatened such retaliation).
Last week, the judges finally handed down their ruling, a scathing judgment that roundly rejects the government arguments:
David Miliband, the foreign secretary, acted in a way that was harmful to the rule of law by suppressing evidence about what the government knew of the illegal treatment of Binyam Mohamed, a British resident who was held in a secret prison in Pakistan, the high court has ruled.
In a devastating judgment, two senior judges roundly dismissed the foreign secretary’s claims that disclosing the evidence would harm national security and threaten the UK’s vital intelligence-sharing arrangements with the US.
In what they described as an “unprecedented” and “exceptional” case, to which the Guardian is a party, they ordered the release of a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born Mohamed before he was secretly interrogated by an MI5 officer in 2002.
“The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law,” Lord Justice Thomas and Mr Justice Lloyd Jones ruled. “Championing the rule of law, not subordinating it, is the cornerstone of democracy.”
This isn’t quite the end of the matter:
The seven-page document will not be released until the result of an appeal is known. However, the judges made clear their anger at the position adopted by Miliband, MI5, and MI6 in their hard-hitting judgment.
An explanation was needed, they said, about “what the United Kingdom government actually knew about what was alleged to be cruel, inhuman or degrading treatment or torture…. The judges added that it was important to explain what MI5 “and others knew when they provided further information to the United States to be used in the interrogation”.
There was a “compelling public interest” to disclose what Miliband wanted to suppress, they said; there was nothing in the seven-paragraph summary that had anything remotely to do with “secret intelligence”.
The judges sharply criticised the way Miliband and his lawyers tried to persuade the Obama administration to back the suppression of the CIA material.
However, given the almost contemptuous tone of the judgment by Justices Thomas and Lloyd Jones, it is hard to see the appeal being sustained.
So it looks like, all of George Bush’s smoothly mendacious protestations notwithstanding, there may soon be incontrovertible evidence that we did indeed torture suspected terrorists. (Unless Liz Cheney wants to go on TV and argue that, by John Yoo‘s definition, slicing up someone’s penis with a scalpel does not constitute torture. And I wouldn’t put it past her, either.)