The case of Binyam Mohamed just gets weirder
and weirder. For the last six months, the British resident and Guantánamo
prisoner, who was seized in Pakistan in April 2002, has been engaged in a transatlantic
struggle to secure evidence relating to his "extraordinary rendition"
and torture, by or on behalf of the CIA, which involved his disappearance from
July 2002 until his arrival at the U.S. prison at Bagram airbase in Afghanistan
in May 2004. Since September 2004, Mohamed has been held at Guantánamo,
and in conversation with his lawyers
he has explained that he was sent to Morocco, where he was tortured
for 18 months, and then spent another four months in the CIA's "Dark Prison"
In June, a judicial review was triggered
after the Treasury solicitors turned
down a request from Mohamed's lawyers to release documents in the British
government's possession regarding his illegal detention in Pakistan and his
subsequent disappearance. The lawyers pointed out that Mohamed was about to
be put forward for a
trial by military commission at Guantánamo (the system of "terror
trials" conceived by the Bush administration in November 2001 and derided
by Lord Steyn
as a "kangaroo court"), and stated that the information was essential
to his defense for two reasons: first, because the U.S. government had refused
to provide any information whatsoever about his whereabouts from July 2002
to May 2004; and second, because Mohamed claimed that the charges against him
– primarily in connection with an alleged plot to detonate a radioactive "dirty
bomb" in a U.S. city – had been extracted, during this period, through
the use of torture.
review took place in July, and Lord Justice Thomas and Mr. Justice Lloyd
Jones were clearly appalled by the behavior of the British intelligence services.
When they delivered a judgment
at the end of August, they criticized the intelligence services for sending
agents to interrogate Mohamed in May 2002, while he was being held illegally
in Pakistan, and also for providing and receiving intelligence about him from
July 2002 until February 2003, when they knew that he was being held incommunicado
and should not have been involved without receiving cast-iron assurances about
his welfare. In the judgment, they stated explicitly that, "by seeking
to interview BM [Mohamed] 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 judges also seized on an admission, made on behalf of the foreign secretary,
David Miliband, that Mohamed 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," and ruled that, because the information obtained from
Mohamed 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," the British government was required to hand over the evidence
– 42 documents in total – to his lawyers.
This was a remarkable result, but celebrations on the part of Mohamed's lawyers
and human rights groups were soon muted when the government responded to the
only lifeline extended by the judges – that national security concerns might
override the necessity for disclosure – by filing a public interest immunity
certificate which stated, in so many words, that the need to preserve the "special
relationship" between the American and British intelligence services trumped
the right of a man rendered to torture by one country – and with the complicity,
to some extent at least, of the other – to have access to evidence that might
help in his defense.
While this led to a temporary stalemate in the UK, Mohamed's case then came
up before a district court judge in the United States, as part of a number
of long-delayed habeas corpus claims, based on the 800-year-old English law
preventing arbitrary imprisonment. These had first been filed after the U.S.
Supreme Court granted the prisoners statutory habeas rights in June 2004, but
had been blocked after Congress passed new laws in 2005 and 2006, and it was
not until June this year, when the Supreme
Court ruled again on the prisoners' rights and granted them constitutional
habeas corpus rights, that the cases were allowed to proceed.
As part of Mohamed's habeas review, the American government was finally required
to make the 42 documents provided by the British government available to his
lawyers, but when the day of disclosure arrived, the Justice Department released
only seven of the 42 documents – apparently so heavily redacted as to be useless
– and then dropped
the "dirty bomb" plot claim without explanation.
This was announced on Oct. 15, and six days later Mohamed's proposed trial
by military commission was also
dropped, although for different reasons. His prosecutor, Lt. Col. Darrel
Vandeveld, had resigned in September, complaining
noisily that he had gone from being a "true believer to someone
who felt truly deceived" by the trials, when he discovered that evidence
vital to the defense had been deliberately withheld. The Pentagon was clearly
terrified that he would make further disturbing revelations in Mohamed's case,
and the cases of four other men whose trials were also abandoned, although,
bizarrely, Mohamed's military lawyer, Col. Yvonne Bradley, was told that the
charges would be reinstated within 30 days.
The reverberations from these developments soon spread back across the Atlantic.
After another High Court hearing, the British judges delivered a judgment
on Oct. 23 in which, while still begrudgingly respecting the government's security
claims in Mohamed's case, they were more openly critical of the U.S. government's
behavior than they had been in August, when observers were required to read
carefully between the lines.
Noting that the court "could see no rational basis for the refusal by
the U.S. government to provide the documents" to Mohamed's lawyers, and
adding that, after being given "ample time" to provide them, no explanation
had been provided by the U.S. government for its refusal to comply with an
agreement reached between the High Court and the U.S. administration, Lord
Justice Thomas again refused to order disclosure, observing that "challenges
made to the conduct of the United States government and the legality of its
actions should, save in the most exceptional circumstances, be determined by
the judiciary of the United States," and trusting that Judge Emmet Sullivan,
the judge in Mohamed's habeas case, was better placed to make a decision at
the next habeas meeting on Oct. 30.
However, he made it clear that, if a satisfactory conclusion was not forthcoming,
the High Court would reconvene to order disclosure, and, after noting that
the court regarded as significant the submission by Dinah Rose QC, one of Mohamed's
lawyers, that the U.S. government "is deliberately seeking to avoid disclosure
of the 42 documents," he concluded, ominously, by stating, "We must
record that we have found the events set out in this judgment deeply disturbing.
This matter must be brought to a just conclusion as soon as possible, given
the delays and unexplained changes of course which have taken place on the
part of the United States government."
What was also noticeable, to those who were studying the case closely, was
that the judges were barely able to conceal their regard for the significance
of the 42 secret documents, which they had been able to scrutinize over the
summer during an extraordinarily detailed cross-examination of one of the agents
who had visited Mohamed while he was under U.S. supervision in a Pakistani
jail in May 2002.
The judges noted that it was the information contained in the 42 documents
that persuaded them that disclosure to Mohamed's lawyers was "essential"
if Mohamed was to have his case "fairly considered" by the Susan
Crawford, the "convening authority" overseeing the Guantánamo
trials. They pointed out that they had only been able to make public some of
their reasons for making this ruling – with the rest contained in a 33-page
closed judgment – but that these at least made clear the "critical point"
that the documents provided "the only support independent of BM in some
material particulars for his general account of events that led to his confessions."
Later in the judgment, Lord Justice Thomas and Mr. Justice Lloyd-Jones revealed
more about the information contained in the documents, noting that their closed
judgment set out the passages that they considered "relevant to the allegation
made by BM that his confessions had been the result of conduct that amounts
to torture or cruel, inhuman, or degrading treatment." They added that
they "came to the view that the documents were relevant to all the charges
made" – not just the "dirty bomb" plot, but other "allegations
of participating in the war in Afghanistan and associating with al-Qaeda"
– and criticized the U.S. government for only revealing seven of the documents
in heavily redacted form.
Explaining that they had "considered with the assistance of counsel in
closed session whether the decision to provide only seven can be explained
on the basis that only seven documents provide exculpatory evidence that supports
BM's account," they stated that they were "satisfied that that cannot
be so," and, moreover, that "all the documents need to be read in
sequence to see the proper context, and they added, "As the United Kingdom
government has made clear since the time the documents were found and sent
to the United States government in June 2008, all are relevant and potentially
What happened next came as a shock to everyone, but served to emphasize the
significance of the allegations that CIA agents had been involved in the torture
of Mohamed, and that the British intelligence services were at least partly
complicit. On Oct. 30, it was announced
that the British Home Secretary Jacqui Smith had officially asked the attorney
general, Baroness Scotland, to investigate possible "criminal wrongdoing"
by MI5 and the CIA in Mohamed's case. The announcement came on the same day
that, in another hearing about Mohamed's habeas review, the Justice Department
over the remaining 35 documents to his lawyers, in a tense session for
the U.S. administration in which Judge Sullivan pointedly "asked why,
after more than six years, the government had stepped away from its claims
about a dirty bomb plot," and stated, "That raises a question as
to whether or not the allegations were ever true."
Although Andrew Warden, a Justice Department lawyer, responded to a question
from Judge Sullivan as to "whether the government stood behind its assertion
of a dirty bomb plot," by stating, "The short answer is yes,"
the long answer is that it has been public knowledge since June 2002 that the
plot never even existed. Speaking in June 2002, shortly after Mohamed's alleged
co-conspirator Jose Padilla was seized at a U.S. airport, Paul Wolfowitz, the
deputy to then-Defense Secretary Donald Rumsfeld, admitted
that "there was not an actual plan" to set off a "dirty bomb"
in America, that Padilla had not begun trying to acquire materials, and that
intelligence officials had stated that his research had not gone beyond surfing
It took another three and a half years for the allegations to be dropped
against Padilla, who was held
as an "enemy combatant" on the U.S. mainland, in isolation so
severe that it amounted to torture, before being put tried and convicted on
lesser – and largely spurious – charges of providing material support for terrorism,
but Andrew Warden's words show that, six and a half years after Wolfowitz's
admission, the Justice Department and the Pentagon are still furiously engaged
in a blinkered denial of reality.
In spite of this, however, the crucial evidence establishing that Mohamed
was tortured into making false confessions remains hidden to the public, awaiting
either a decision by Judge Sullivan to dismiss his case, leading to his release
from Guantánamo (as requested
by the British government 15 months ago), or a decision by the Defense Department
to reinstate his trial by military commission.
Unless, that is, the British judges insist that public disclosure is in the
interests of justice. On Nov. 5, in what the Daily
Telegraph described as a move that is "believed to be legally
unprecedented," Lord Justice Thomas wrote to the Press Association inviting
"written submissions from the media" about whether or not the court
should make available a "summary of the circumstances of BM's detention
in Pakistan and the treatment accorded to him" – consisting of "seven
very short paragraphs amounting to about 25 lines" – which had been cut
from the High Court's August ruling at the government's request.
Lord Justice Thomas noted that "the issue is one of considerable importance
in the context of open justice," referred to the home secretary's decision
to ask the attorney general, Baroness Scotland, to investigate possible "criminal
wrongdoing" by MI5 and the CIA in Mohamed's case, and also drew on advice
provided by two special advocates, Thomas de la Mare and Martin Goudie, who
had represented Mohamed during the court's closed sessions, when confidential
material was being discussed. In September, the judges noted that, in the opinion
of the special advocates, the government's public interest immunity certificate
"failed to address, in the light of allegations made by BM, the abhorrence
and condemnation accorded to torture and cruel, inhuman, or degrading treatment,"
and in his request for submissions from the media, Lord Justice Thomas again
referred to the special advocates' advice, noting that:
"The special advocates contended that no claim to public interest
immunity could lie [i.e., be allowed] in respect of information which pointed
to the commission of serious criminal offenses, particularly those contrary
to the rule of jus cogens in international law [fundamental principles,
including a ban on the use of torture, from which no derogation is ever permitted].
The defendant [the British government] accepted for the purposes of that argument,
and subject to substantial caveats, that there was an arguable case of cruel,
inhuman, and degrading treatment. Further, given the fluid boundary between
cruel, inhuman, and degrading treatment and torture, the defendant did not
wish to contend that on the limited information available a concluded view
could be reached that there was not torture. Accordingly, the court considered
this issue on the basis that the material arguably disclosed cruel, inhuman,
and degrading treatment and torture."
Lord Justice Thomas stated that those wishing to make submissions should notify
the court of their intention to do so by no later than Friday, Nov. 14, and
must provide submissions by Monday, Dec. 1. He explained that the parties and
the special advocates would then be given two weeks to reply to the submissions,
and that the court would then consider its judgment.