A former Guantanamo Bay prisoner who accused a Bay Area company of flying him to foreign torture chambers for the CIA is at the center of a bizarre new case, in which his lawyers face possible jail sentences for writing a letter that asked President Obama to disclose how brutally he was treated.
The government says the letter falsely accused a Pentagon review team of censoring details of the alleged torture of Binyam Mohamed from a document the attorneys wanted to send to Obama. The lawyers stand by their accusations but have been summoned to Washington, D.C., by a federal judge for a hearing next month on whether they should be held in contempt of court, punishable by up to six months in jail.
Mohamed, meanwhile, awaits a ruling from the Ninth U.S. Circuit Court of Appeals in San Francisco on whether he and four other men can sue a Boeing Co. subsidiary in San Jose for allegedly colluding with the CIA to violate their rights.
The suit accuses the company, Jeppesen Dataplan, of taking part in “extraordinary rendition,” the practice of abducting suspects without extradition or legal proceedings and taking them to foreign countries or CIA prisons for interrogation. The plaintiffs’ evidence includes a statement attributed to a Jeppesen director in 2006 that the company handled torture flights. Jeppesen has denied wrongdoing.
At an appeals court hearing Feb. 9, an Obama administration lawyer endorsed the Bush administration’s previous argument that the suit should be dismissed because it could expose state secrets about the rendition program and U.S. foreign relations.
Mohamed, a native of Ethiopia who lives in Britain, was freed two weeks after the hearing from nearly seven years in captivity, the last four at the U.S. naval base at Guantanamo Bay, Cuba.
He was arrested in Pakistan in 2002 and turned over to U.S. authorities as a suspected terrorist and Taliban fighter. Mohamed said he had been beaten, hung from a pole and held in darkness and isolation at a CIA prison in Afghanistan and that his genitals were slashed with a razor blade by guards in Morocco before he was sent to Guantanamo.
He said the charges against him were based on confessions extracted by torture. Those charges were dropped before he was released.
The charges against his attorneys stem from their effort to make the details of Mohamed’s treatment public after a British court ruled last year that there was evidence he had been tortured, but deleted that evidence from its ruling at the insistence of the Bush administration.
Seeking to release evidence
The attorneys, Clive Stafford Smith and Ahmad Ghappour of the British human-rights group Reprieve, drafted a letter to Obama on Feb. 9 urging him to release the evidence or to authorize Britain to do so.
They wrote that they were first presenting the letter and a document summarizing the classified evidence to the Defense Department’s Privilege Review Team, which monitors lawyer-client correspondence at Guantanamo, to clear it for forwarding to the president.
If the Pentagon refused to pass the evidence on to Obama, the lawyers said in the letter, they would send him a blacked-out document and advise him that he was being “denied access to material that would help prove that crimes have been committed by U.S. personnel.”
What happened next is disputed. According to the lawyers, Ghappour submitted the classified memo to the Privilege Review Team four times, removing more material each time, but the team ultimately refused to clear any of the material to be sent to Obama. Shortly afterward, Smith and Ghappour sent the letter and a blacked-out sheet to the president and released them to the media.
But the government, in court papers, said Ghappour approached a member of the review team with the classified document Feb. 10 and was told that the team had no authority to declassify such information, and that he should submit it to a security officer or a Justice Department lawyer.
Ghappour returned with the blacked-out document, asked for clearance, and got it approved after assuring the team member that he would send it only to Mohamed and not to Obama, government lawyers said.
Letter called deceptive
They said the letter that Mohamed’s lawyers sent to Obama the next day falsely accused the review team of concealing information from the president and was used to “deceive the press and the public” about the review team’s role.
Citing the government’s allegations, U.S. District Judge Thomas Hogan ordered the two attorneys to appear before him May 11 and face charges that they violated terms of the agreement they signed to gain access to the Guantanamo prisoners they represented. He did not specify the violations.
Smith and Ghappour filed their reply under seal but have denied breaching the agreement.
David Cole, a Georgetown University law professor and legal commentator who is not involved in the case, said it was “deeply troubling” that lawyers could be punished for writing a letter to Obama about a secrecy decision that is ultimately the president’s responsibility. But he said the bigger problem was the Bush administration’s decision to classify all information about its treatment of Mohamed.
“This was classification to hide its own criminal wrongdoing, and the people Judge Hogan really ought to be calling in are those who decided to classify this stuff in the first place,” Cole said.
Smith, the director of Reprieve and attorney for more than 50 prisoners who have been held at Guantanamo, told The Chronicle he was unable to discuss his case publicly. But in an interview April 7 on Pacific Radio’s Democracy Now, he called the contempt charges “frivolous” and said he would come to the United States for the hearing.
“I want the real issue to be why the government continues to cover up the evidence of Binyam’s torture,” Smith said.
This article appeared on page B – 1 of the San Francisco Chronicle