British Court Rules Against UK and US in Guantánamo Case

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 Jose 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.