Guilt by Torture

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" near Kabul.

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.

The judicial 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 exculpatory."

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 finally turned 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 the Internet.

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.

Binyam Mohamed's transatlantic quest for justice