Three of Britain’s most senior judges have ordered the government to reveal evidence of MI5 complicity in the torture of British resident Binyam Mohamed – unanimously dismissing objections by David Miliband, the foreign secretary.
In a ruling that will cause deep anxiety among the security and intelligence agencies, they rejected Miliband’s claims, backed by the US government, that disclosure of a seven-paragraph summary of classified CIA information showing what British agents knew of Mohamed’s torture would threaten intelligence sharing between London and Washington, and therefore endanger Britain’s national security.
One of the key paragraphs states that there “could readily be contended to be at the very least cruel, inhuman and degrading treatment of Binyam Mohamed by the United States authorities”.
The judges – Sir Igor Judge, the lord chief justice; Lord Neuberger, the master of the rolls; and Sir Anthony May, president of the Queen’s Bench – shattered the convention that the courts should not question claims by the executive relating to national security.
In damning references to claims made by Miliband and his lawyers, and stressing the importance of the media in supporting the principle of open justice, they said the case raised issues of “fundamental importance”, of “democratic accountability and ultimately the rule of law itself”.
Publication of the material Miliband wanted to suppress was “compelling”, Judge said, since they concerned the involvement of wrongdoing by agents of the state in the “abhorrent practice of torture”. The material helped to “vindicate Mr Mohamed’s assertion that UK authorities had been involved in and facilitated the ill- treatment and torture to which he was subjected while under the control of USA authorities“.
No ifs or buts. No strained euphemisms. It’s now right there in black and white. In the judgment of the British legal system — a judgment rendered over the strenous can’t-we-just-continue-to-cover-this-all-up-please? objections of the British government — we did indeed torture suspected terrorists in the time of Bush. In the judgment of the British legal system, when Bush said “We do not torture people”, that was a bare-faced lie.
It’s now certified that the British government not only knew about, but facilitated and participated in this torture. And British society does not seem to share our why-not-let-bygones-be-bygones attitude. So stand by for further fallout.
On November 19, 2009, U.S. Federal District Judge Gladys Kessler unambiguously ruled that Binyam Mohamed was subjected to torture. This was in the course of ruling, on Farhi Saeed Bin Mohammed‘s habeas corpus petition, that he should be released forthwith. Because the charges against him were based almost entirely around statements made by Binyam Mohamed. And Binyam Mohamed’s statements could not be relied upon, because a) they were torture-induced, and b) he recanted his statements after his release from Guantanamo.
The Government argues that Petitioner left the Jalalabad guesthouse to train at an al-Qaida camp, and then returned to Jalalabad before fleeing the country for Pakistan after September 11….Its chief support for this argument consists of the statement of Binyam Mohamed, who told interrogators at Guantanamo Bay in October and November of 2004 that Petitioner attended a training camp with him.
Petitioner contends that Binyam Mohamed’s statements—the only other evidence placing Petitioner in a training camp—cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit a host of allegations, most of which he has since denied. When he arrived at Guantanamo Bay, Binyam Mohamed implicated Petitioner in training activities. However, after being released from Guantanamo Bay, he signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. Binyam Mohamed stated he made these statements because of “torture or coercion,” that he was “fed a large amount of information” while in detention, and that he resorted to making up some stories.
And then Judge Kessler’s judgment spells out exactly what Binyam Mohamed suffered, without mincing words:
Binyam Mohamed’s trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.
Surprisingly, Judge Kessler’s judgment didn’t cause much of a ripple in the US when it was rendered last November. Or maybe it’s not so surprising. We have, after all, decided as a country that it’s far better to simply ignore all evidence of the torture the Bush administration conducted in our name, than to distract ourselves from the challenges of today by looking backwards in any kind of reckoning, moral or legal.
In the UK, though, people are hopeful that the court of appeal ruling will lead to some real societal soul-searching, a real investigation into the conduct of and complicity in torture:
Shami Chakrabarti, the director of Liberty, said the ruling and revelations made a public inquiry “inescapable”.
“It has been clear for over a year that the Foreign Office has been more concerned with saving face than exposing torture.
“These embarrassing paragraphs reveal nothing of use to terrorists but they do show something of the UK government’s complicity with the most shameful part of the war on terror.
“The government has gone to extraordinary lengths to cover up kidnap and torture. A full public inquiry is now inescapable.”
In fact, it looks like a real investigation is already under way:
An MI5 officer known only as Witness B is being investigated by the Metropolitan police over his alleged role in questioning Mohamed incommunicado in a Pakistan jail.
There’s another angle to the court of appeal judgment that is creating a bit of a hullabaloo. The draft judgment had contained a scathing indictment of MI5, but the master of the rolls, Lord Neuberger, agreed to water it down considerably:
The government launched a successful last-minute bid to persuade the court of appeal to erase the most damning details of MI5′s complicity in torture from its decision in the Binyam Mohamed case – but has been unable to suppress a letter that details some of the contents of the original draft ruling.
On Monday, Jonathan Sumption QC wrote to the court warning that the paragraph in question was “likely to receive more public attention than any other parts of the judgments”.
This, Sumption pointed out, was because the paragraph would state that MI5 did not operate in a culture that respected human rights or renounced “coercive interrogation techniques”.
The letter also reveals that the judgment, before being rewritten, said this was particularly true of the MI5 officer known as Witness B who gave evidence in the case – and that this man’s conduct was characteristic of MI5 as a whole.
Furthermore, the letter shows, the judges originally ruled that MI5 officers had “deliberately misled” the Intelligence and Security Committee, the body of MPs and peers supposed to oversee its work, on the question of coercive interrogations, and that this “culture of suppression” reflected its dealings with the committee, the foreign secretary and the court.
Finally, the letter makes clear that the court ruled MI5′s culture of suppression “penetrates the service to such a degree” that it undermines any government assurance based upon information that comes from MI5 itself.
The master of the rolls, Lord Neuberger, told the court this morning that he had discussed Sumption’s request with the lord chief justice, and decided to amend the relevant section “quite significantly”.
Judges were entitled to change their draft judgments, the master of the rolls said, but “it was over-hasty of me” to do so without giving others the opportunity of making representations.
He would therefore give parties who wished to object until 4pm on Friday to make representations, when he would decide whether to reinstate his judgement.
The justices’ opinion of MI5 is already on the public record now. It might even be restored to the formal judgment. Either way, it will no doubt cause some real ripples.