By Richard Tyler | A London court has ruled that the British government must disclose information that could support the claim that torture was used to extract confessions from Binyam Mohamed, a former British resident who has been held in GuantÃ¡namo Bay since September 2004.
The ruling by the Judicial Review–a special court that considers the lawfulness of a decision or action made by a public body–is a rebuff to Foreign Secretary David Miliband, who had initially argued that he was under no obligation to provide Mohamed’s lawyers with the information.
Binyam Mohamed has now been incarcerated for nearly six and half years. He was first detained in Pakistan, and then subjected to “extraordinary rendition”–Washington’s euphemism for its programme of organised kidnapping and torture–to Morocco. Here he was held for 18 months while his captors used torture–including slicing his genitals with a razor–to wring a “confession” out of him.
He currently faces trial by a US Military Tribunal, charged with conspiring to commit terrorism and providing material support for terrorism in an alleged “dirty-bomb” plot. He could face the death penalty if found guilty. The judges ruled that the information is “not only necessary but essential for his defence”.
Human rights lawyer Clive Stafford Smith, Director of Reprieve, who has represented Mohamed since 2005, told the press, “This is a momentous decision. Compelling the British government to release information that can prove Mr. Mohamed’s innocence is one obvious step towards making up for the years of torture that he has suffered. The next step is for the British government to demand an end to the charade against him in GuantÃ¡namo Bay, and return him home to Britain.”
In their ruling, the judges state, “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 Judicial Review was held at the end of July over five days in both open and closed sessions, also hearing testimony in camera from British Security Service and Secret Service officers who had been involved in the questioning of Mohamed while he was detained in Pakistan and elsewhere. The court’s 75-page open judgement was finally published last week, while a secret “closed” judgement has also been made.
Lord Justice Thomas and Mr Justice Lloyd Jones found there were compelling grounds that the “exculpatory” information should be released in confidence to Mohamed’s legal representatives. No order for the provision of such information has been made until a further hearing considers the issues of “national security” raised by the Foreign Secretary as grounds for its non-disclosure.
At the Judicial Review, Dinah Rose QC, representing Mohamed, told the court that by cooperating with the US in its unlawful treatment of her client, the security and intelligence agencies were “mixed up in wrongdoing”. It was also alleged that the US “provided the UK with the fruits of his interrogation”.
Rose said that a British agent–identified only as “Witness B”–had made a “veiled threat” to Mohamed while he was being held in Pakistan, to encourage his “cooperation”, with the implication that “we won’t help you unless you confess”. She also asserted that MI5 had “repeatedly” provided the US authorities with detailed information about Mohamed’s life in the UK, information that was then used by his captors during interrogation.
In his summing up, Ben Jaffey, another of Mohamed’s legal team, highlighted the contradictions in MI5’s accounts; one MI5 officer had said that British security and intelligence agencies “did not know” Binyam Mohamed’s whereabouts after he was flown out of Pakistan in 2002, whereas an MI5 representative had explicitly told the House of Commons Intelligence and Security Committee that it believed he was in US custody.
Seeking to justify its refusal to hand over information that could uphold Mohamed’s claim that he was tortured, the government told the court that the UK was “hugely dependent in a number of areas on US intelligence”.
Moreover, it was a “fundamental principle” that information passed between the countries not be disclosed to a third party without the consent of the country which had provided it. “Any disclosure, however limited, would seriously undermine this principle to the point that future cooperation between the UK and its most valuable intelligence partner, the US, would be severely jeopardised”, posing a “very serious risk to UK national security”.
Judicial Review findings
Binyam Mohamed’s case makes a mockery of the Labour government’s pretensions to oppose the use of torture and uphold human rights.
While claiming to uphold the Geneva Conventions and international treaties outlawing the use of torture, British military personnel, as well as officers from the various intelligence agencies have been implicated in the mistreatment of detainees in Afghanistan and Iraq. In the case of Binyam Mohamed, they have been caught red-handed.
The judgement records that “it was accepted on behalf of the Foreign Secretary… that BM [Binyam Mohamed] had established an arguable case (i) that over the period April 2002 to May 2004 he was first held by the United States incommunicado and without access to a lawyer or a court or tribunal in Pakistan, and then detained there or elsewhere by the United States until his arrival in GuantÃ¡namo Bay in September 2004 (ii) that he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States during such detention and (iii) that he was subject to torture during such detention by or on behalf of the United States.”
Moreover, the legal hearing and court ruling establish conclusively that not only did the British government know about the mistreatment of Mohamed, British agents also facilitated this “wrongdoing”. The judges found that “The relationship between the United Kingdom Government and the United States authorities was far beyond that of a bystander or witness to the alleged wrongdoing”.
Even more damning, the court found “that on the basis that what was done was arguably wrongdoing, the SyS [Security Service] facilitated it in the manner and to the extent described.”
The court concluded that the “conduct of the Security Service facilitated interviews by or on behalf of the United States when BM was being detained by the United States incommunicado and without access to a lawyer in Pakistan in the period April 2002 until at least May 2002… The Court also concluded that the Security Service continued to facilitate the interviewing of BM by providing information and questions after 17 May 2002, in the knowledge of what was reported to them as to the circumstances of his detention and treatment in Pakistan.”
The Security Services then continued to provide further information and questions to their American counterparts, even when they knew that Mohamed had been moved from Afghanistan to a third country, where he faced serious mistreatment.
Mohamed’s lawyers have been pressing the government to release information and documents they held that might sustain his claim that the “evidence” against him had been extracted under torture. After an initial request for information was lodged by his legal representatives in April, government lawyers responded by saying the “UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted”.
Binyam Mohamed’s case was finally accepted for Judicial Review at the beginning of June. Recognising the urgency of his plight, Mr Justice Saunders agreed to an “expedited” hearing, saying, “If it is correct that in the course of an interrogation, in which material supplied by the Defendant [the British government] was employed, the Claimant [Binyam Mohamed] was tortured, then it is arguable that there is an obligation to disclose material which may assist Claimant in establishing before the American Military Court that he was tortured. Whether the Court should exercise its discretion not to order disclosure can only be determined at a full hearing.”
It was not until this application for a Judicial Review was accepted that the Foreign Secretary then grudgingly acknowledged government documents “could be considered exculpatory or might otherwise be relevant in the context of proceedings before the Military Commissions”.
In its deliberations, the court considered whether the British government or its agents had contravened the Genva Conventions.
“The United Kingdom Armed Forces are trained in the laws of armed conflict set out in the Geneva Conventions. The Joint Services Intelligence Organisations’ training documentation states that the following techniques are expressly and explicitly forbidden: (a) physical punishment of any sort; (b) the use of stress positions; (c) intentional sleep deprivations; (d) withdrawal of food, water or medical treatment and three other specified techniques.”
Citing a 2007 report by the Intelligence and Security Committee (ISC), established by the Intelligence Services Act 1994 to examine the policy, administration and expenditure of the Security Service (SyS), Secret Intelligence Service (SIS), and the Government Communications Headquarters (GCHQ), the court found that the SyS and SIS “must have appreciated that it [rendition] was contrary to the rule of law.”
The ruling also documents the fact that the government knew of the ongoing and persistent mistreatment of detainees being held by the American authorities, or those acting on their behalf.
From December 2001, British intelligence operatives were able to interview detainees in Afghanistan, if permission was given by the US authorities holding them. The first SyS officers arrived at Bagram airbase on January 9, 2002 to begin this interrogation.
A report from one such officer dated January 10, 2002 contained certain “observations” about the conditions under which the detainees were being held. As a consequence, on January 11, 2002, instructions were sent to all SIS and SyS officers in Afghanistan that all prisoners, “however they are described, are entitled to the same levels of protection.”
Despite claims that this merely represented an “isolated case”, the judgement records that there were reports of a “further isolated case” in March 2002, and in April 2002 an SIS officer was present at an interrogation of a detainee by the US military, who complained of being kept “in isolation”.
In June 2002, according to an ISC report cited by the court, the SyS had discussed with Foreign and Commonwealth officials a US report that referred to the “hooding, withholding of blankets and sleep deprivation of a detainee in Afghanistan”.
Again, in July 2002, a SyS officer reported to his senior management that whilst in Afghanistan, “a United States official had referred to ‘getting a detainee ready’, which appeared to involve sleep deprivation, hooding and the use of stress positions.”
The court ruling cited an official document that was sent to all Security Service and Secret Service officers in Afghanistan in January 2002: “With regard to the status of the prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protection. You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given that they are not within our custody or control, the law does not require you to intervene to prevent this. That said, HMG’s [Her Majesty’s Government] stated commitment to human rights makes it important that the Americans understand that we cannot be party to such ill treatment nor can we be seen to condone it.”
Such is the Labour government’s venal double-talk: not only has the British government tacitly accepted the use of torture by the US authorities from the beginning of the illegal wars in Afghanistan and Iraq (and benefited from the “intelligence” it produces), British agents have actively facilitated it. All that counts is that HMG must not be “seen” to condone it!