In the lawless world of Guantánamo – and
the United States' even murkier network of secret prisons run by or on behalf
of the CIA – it has taken six years and four months for British resident Binyam
Mohamed to secure anything resembling justice.
Seized in Pakistan in April 2002, Binyam was rendered to Morocco three months
later, where he was tortured
on behalf of the U.S. for 18 months, in sessions that regularly included having
his genitals cut with a razor, and was then held for nine months in Afghanistan,
first at the "Dark Prison," a secret prison run by the CIA, where
he was also tortured, and then at Bagram airbase. He has been held at Guantánamo
since September 2004.
When justice finally came for Binyam, it was not at Guantánamo, but
in London's High Court, where, last Thursday, Lord Justice Thomas and Mr. Justice
Lloyd Jones delivered a stinging rebuke to both the British and the American
governments: to the British for the complicity of the UK intelligence services
in the U.S. administration's post-9/11 policies of "extraordinary rendition"
and torture, and to the Americans for the lawless conduct of the trials by
military commission that were established in the wake of the 9/11 attacks to
deal with "terror suspects" like Binyam (even though the judges professed
in their ruling that they "did not consider it necessary to form any view
about the overall fairness of the military commissions procedure").
The road to the High Court opened up in May this year, when Binyam's lawyers
at the legal action charity Reprieve,
who represent over 30 Guantánamo prisoners, teamed up with solicitors
at Leigh Day & Co. to sue the British government, seeking the release of
information relating to British knowledge of Binyam's rendition and torture,
in preparation for his impending trial at Guantánamo.
In the event, this was prescient, as charges
were leveled against Binyam on May 28, in connection with the spectral
"dirty bomb" plot that was dropped years ago against U.S. citizen
Padilla. It was, therefore, imperative that potentially exculpatory evidence
– which the British possessed, and which they had also handed over to the Americans
– was made available to his lawyers so that they could begin preparing a defense,
and, preferably, discover evidence of torture, which would back up Binyam's
claims that the charges against him were based solely on confessions obtained
through torture, and would, therefore, make the U.S. administration call off
his forthcoming trial.
It was an indication of how far removed the military commissions are from
legal norms that, although Binyam's lawyers contended that he had been tortured,
and had discovered
the records of "extraordinary rendition" flights that matched his
accounts, the U.S. administration had not only provided no information to enable
them to defend him, but had also categorically refused to account for his whereabouts
before his arrival at Bagram in 2004.
Whatever information they and the British possessed would, it was stated,
be made available to Binyam's military defense lawyer, Lt. Col. Yvonne Bradley,
at the discovery stage, should his trial go ahead, but as the trial of Salim
Hamdan demonstrated last month, some evidence was withheld from the defense
until the last possible moment, and other evidence – relating, for example,
to coercive interrogations of Hamdan conducted by the CIA in Afghanistan –
was ruled off-limits by the military judge presiding over the trial, and was,
essentially, regarded as though it didn't exist at all.
In Binyam's case, his lawyers sued the British government after an earlier
attempt to secure potentially exculpatory evidence from the British government
was turned down, when the Treasury Solicitors, acting on behalf of the government,
attempted to brush aside British complicity in Binyam's rendition, torture
and false confessions by claiming that "the UK is under no obligation
under international law to assist foreign courts and tribunals in assuring
that torture evidence is not admitted," and adding that "it is HM
Government's position that … evidence held by the UK government that U.S. and
Moroccan authorities engaged in torture or rendition cannot be obtained"
by his British lawyers.
Last Thursday, following a judicial
review in the High Court that was triggered when Binyam's lawyers sued
the government, Lord Justice Thomas and Mr. Justice Lloyd Jones demolished
the government's defense of its actions in a 75-page judgment [.pdf],
which is also available as a five-page summary [.pdf].
The judges made clear that, after Binyam was captured and U.S. agents came
to regard him as "a serious potential threat to the security of the United
Kingdom," the British intelligence services had "every reason to
seek to obtain as much intelligence from him as was possible in accordance
with the rule of law and to cooperate as fully as possible with the United
States authorities to that end." They concluded, however, that the actions
of the intelligence services from May 2002, when a British agent visited Binyam
in U.S.-supervised Pakistani custody, until February 2003, when the British
last received information from the U.S. regarding his interrogations, had placed
the British government in a position where it "was involved, however innocently,
in the alleged wrongdoing," which it had helped facilitate.
Regarding Binyam's time in Pakistan, where the British agent who visited him
on May 17, 2002, made it clear that the British government "would not
help [him] unless he cooperated fully with the U.S. authorities," the
judges ruled that Binyam's detention was "unlawful" under Pakistani
law, because he "was being detained by the United States incommunicado
and without access to a lawyer." Furthermore, the judges noted that the
British intelligence services "provided further information to the United
States and further questions to be asked of BM [Binyam]" for nine months
after this visit, even though he "was still incommunicado and they must
also have appreciated that he was not in a United States facility and that
the facility in which he was being detained was that of a foreign government
(other than Afghanistan)."
The judges noted that all of the above was particularly significant because
the information obtained from Binyam was "sought to be used as a confession
in a trial 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." They therefore ruled that "by seeking
to interview BM 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 gravity of this was brought home during the judicial review, when the
agent who had interviewed Binyam in Pakistan was cross-examined for several
days in closed sessions that were clearly so perilous for the agent, in terms
of potential criminal liability for war crimes under the International Criminal
Court Act of 2001, that he brought his own legal adviser with him, and, it
was revealed in the judgment, initially refused to answer the judges' questions,
fearing self-incrimination. This, of course, is in marked contrast to the position
held by the U.S. administration, which has refused to sign up to the International
Criminal Court, and which, in addition, maintains that it "does not torture"
and continues to do all in its power to deny that it has been responsible for
gross human rights abuses.
In the second part of their ruling, the judges took as their starting point
an admission by British Foreign Secretary David Miliband, which took place
"after the commencement of this application but before the hearing,"
that he had "identified documents which he considers could be considered
exculpatory or might otherwise be relevant in the context of the proceedings
before the military commission." After stating that David Miliband had
informed Binyam's lawyers and had "provided these documents to the United
States Government," the judges added, "It is a matter of regret that
the documents have not been made available in the proceedings under the Military
Commissions Act in confidence to BM's lawyers, who have security clearance
from the United States authorities to at least secret level."
This was not the judges' only thinly veiled criticism of the behavior of the
U.S. authorities, but it was for three specific reasons that they proceeded
to rule that the foreign secretary was "under a duty" to disclose
"in confidence" to Binyam's legal advisers the requested information,
which was "not only necessary but essential for his defense": firstly,
because the foreign secretary had not made the documents available to Binyam's
lawyers; secondly, because the U.S. authorities had also refused to do so;
and thirdly, because the foreign secretary had accepted that Binyam 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."
Having demolished the cases put forward by both the British and American governments,
the judges nevertheless held out a lifeline for the foreign secretary, pointing
out that they would "make no order for the provision of the information"
until he "had an opportunity to consider the interests of national security
in the light of these judgments," and set a date for a second hearing
on Aug. 27.
On the day, what was initially regarded as a straightforward hearing for the
foreign secretary to announce his response to the judges' ruling turned into
another long session as the government responded to the security concerns mentioned
by the judges by filing a Public Interest Immunity (PII) Certificate seeking
to suppress disclosure of the documents on the grounds of national security,
and the U.S. State Department attempted to strike a deal through correspondence
with the Foreign and Commonwealth Office (FCO).
John Bellinger, the State Department's legal adviser, claimed that public
disclosure of the documents was "likely to result in serious damage to
U.S. national security and could harm existing intelligence information-sharing
arrangements between our two governments." His only concession to the
judges' ruling was to note that the Office of the Chief Prosecutor in the Office
of Military Commissions had agreed to provide the British intelligence documents
(44 in total) to the commissions' convening authority, Susan Crawford, if she
requested them, "subject only to the condition that the names of American
and British government officials and the locations of intelligence facilities
will be redacted from the documents prior to their being provided." He
added that, if Binyam's trial were to go ahead, the redacted documents would
be made available to his military lawyer at the "normal discovery phase"
of the process.
In a separate e-mail to the FCO, Stephen Mathias, one of John Bellinger's
deputies, offered a further concession "by way of update," in which
he stated that the legal adviser had now decided to present the documents to
Susan Crawford, without waiting for her to ask for them. Describing this as
"a significant development," Stephen Mathias proceeded to claim,
with a degree of force that appeared rather intimidating, "Ordering the
disclosure of U.S. intelligence information now would have only the marginal
effects of serious and lasting damage to the U.S.-UK intelligence sharing relationship,
and thus the national security of the United Kingdom, and of aggressive and
unprecedented intervention in the apparently functioning adjudicatory processes
of a longtime ally of the United Kingdom, in contravention of well established
principles of international comity."
As Ben Jaffey (for Binyam) argued in court, neither the State Department's
"carefully calibrated concessions" nor the British government's claim
of Public Interest Immunity were tenable. He pointed out, as the judges did
in their ruling, that the case did not involve public disclosure of the documents,
but only the confidential disclosure to Binyam's lawyers, Lt. Col. Yvonne Bradley
and Clive Stafford Smith, Reprieve's director, who both have U.S. security
clearance. He added that the supposed concessions demonstrated merely that
the U.S. government was determined to find any method possible to prevent disclosure,
and added that nothing offered by the State Department addressed the "central
question" relating to Binyam's rendition and torture. "Where,"
he asked, "was Mr. Mohamed between 2002 and 2004?"
Ben Jaffey was equally dismissive of the British government's PII claims,
noting, in particular, that David Miliband had effectively conceded that the
British government was going to hand over the intelligence documents to Binyam's
lawyers until the State Department intervened, and calmly dismissing the government's
national security claims. His composure was in marked contrast to that of the
government's representative, Tim Eicke, who struggled to maintain a coherent
argument, despite the best efforts of the many representatives of the government
and the intelligence services at the back of the court, who kept slipping him
notes suggesting new twists on the spurious national security case.
On Friday, the judges delivered their second judgment on Binyam's case [.pdf].
Noting that the correspondence from the State Department effected a "significant
change" in the U.S. position, they nevertheless refused to accept the
British government's position regarding its Public Interest Immunity Certificate.
They were, it seemed, convinced in particular by submissions from the special
advocates who represented Binyam in the various sessions of the court that
were closed to the public when confidential material was being discussed. In
the opinion of the special advocates, the PII Certificate, and other proposals
presented in a closed session on Wednesday, "failed to address, in the
light of allegations made by BM, the abhorrence and condemnation accorded to
torture and cruel, inhuman, or degrading treatment."
Adding that this issue was something whose significance had been "accepted
on behalf of the foreign secretary," the judges proceeded to note that
the foreign secretary "nevertheless contended that the issues arising
out of BM's allegations of torture and cruel, inhuman, or degrading treatment
were implicitly dealt with in his certificate," and in the documentation
used in the closed session. "Having carefully considered this matter,"
the judges wrote, "we do not consider that the issue arising out of the
allegations made by BM is implicitly dealt with in these documents."
Refusing to push the matter further, the judges commended the foreign secretary
and the FCO's legal adviser, Daniel Bethlehem QC, for having "gone to
very considerable lengths to provide BM with assistance," noting that
it was "evident" that they had "been engaged in lengthy discussions
which have led to the important changes" summarized in the second judgment.
"This," they added, "has been time-consuming and burdensome,
and has rendered very real assistance to the interests of justice in this case."
As a result, the judges concluded their second judgment by giving the foreign
secretary another week to come up with a response to their initial ruling and
the developments since. They suggested that this could be in the form of another
security certificate, although I hope, of course, that, having been thrown
another lifeline, the government might find it preferable, bearing in mind
the special advocates' description of "the abhorrence and condemnation
accorded to torture and cruel, inhuman, or degrading treatment," either
to give Binyam's lawyers what they require, or, preferably, to convince the
U.S. administration that, in order to keep the door to the torture chambers
firmly shut, the only available course of action is to drop the charges against
Binyam and return him to the UK.