There was a time, as two senior judges in the British High court reported yesterday (PDF), when “The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy.” As the judges -- Lord Justice Thomas and Mr. Justice Lloyd Jones -- noted, correctly, “Championing the rule of law, not suppressing it, is the cornerstone of a democracy.”
However, in the 21st century, as Lord Justice Thomas and Mr. Justice Lloyd Jones reluctantly conceded, the right of a terror suspect to have any information revealed publicly about a two-year ordeal involving “extraordinary rendition” and torture could be overruled by the British government, on the basis that the US government had threatened to re-evaluate its intelligence sharing relationship with the UK, which “could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”
The case in question is that of Binyam Mohamed, a British resident, seized in Pakistan in April 2002, who was sent by the CIA to be tortured in Morocco in July 2002, and was then flown to Afghanistan in January 2004, where his torture continued, at a CIA facility known as the “Dark Prison,” until he finally resurfaced in May that year at the US prison at Bagram airbase. As a result of his gruesome two-year ordeal, he made two false confessions -- at Bagram, and at Guantánamo, where he was transferred in September 2004 -- that he had been a member of al-Qaeda and had been involved in a plot to detonate a radioactive “dirty bomb” in New York.
The confessions formed the basis for Binyam’s case being put forward for a trial by Military Commission at Guantánamo. This rigged system, conceived by Vice President Dick Cheney and his close advisers in November 2001, was designed to secure convictions, and was condemned by its own government-appointed military defense lawyers as unjust. Binyam was put forward for trial not once, but twice; firstly, in November 2005, until the entire system was ruled illegal by the Supreme Court in June 2006, and again, following the system’s shameful resuscitation by Congress, in June 2008.
Of course, torture, and the use of confessions obtained through the use of torture, are prohibited in all countries that claim to adhere to the rule of law, but since August 2005, when Binyam’s account of his torture was first revealed to the world (after being inexplicably cleared by US military censors), his lawyers at Reprieve, the London-based legal action charity, have struggled not only to hold the US administration accountable for its crimes, but even to persuade a single US official to admit anything about his whereabouts between July 2002 and May 2004, when, to all intents and purposes, he disappeared off the face of the earth.
Binyam’s quest for justice in the UK
In April last year, having hooked up with solicitors at Leigh Day & Co., Binyam’s lawyers decided, instead, to request information relating to Binyam’s rendition and torture from the British government. They knew from Binyam’s own account -- and from limited information revealed by the UK authorities -- that two British agents had visited him in May 2002, when he was being held in Pakistani custody (under US supervision), and Binyam claimed that one of the agents had threatened him if he did not cooperate, and had also indicated that he knew that he was going to be rendered to torture in a third country. They also knew that Binyam had said that in Morocco, where he endured horrors that would shock the conscience, he reached his lowest point not when his genitals were being cut with a razor or when he was being beaten senseless, but when his torturers asked him questions about his life in London that could only have been supplied by the British intelligence services, and he realized that he had been betrayed by the country that he called his home.
When the British government refused to supply this information, Binyam’s lawyers sued, and were rewarded with a judicial review, which took place over two weeks last summer. At the end of the review, which focused on whether or not Binyam’s lawyers should have access to 42 classified documents in the possession of the government, Lord Justice Thomas and Mr. Justice Lloyd Jones delivered a highly critical judgment, lambasting the intelligence services for sending agents to interrogate Binyam in May 2002, because 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. The relationship between the US and the UK, they stated, “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 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,” and ruled that, as a result, the British government was required to hand over the evidence in its possession to his lawyers.
A Transatlantic game of cat and mouse ensued, which would have been farcical had its outcome not been of such grave importance. In a series of concessions, the US State Department suggested that, in relation to Binyam’s forthcoming trial by Military Commission, the 42 documents would be made available to his lawyers (something that, in a startling insight into the lawless world of the Commissions, could not even be taken for granted). In response to the US concessions, the Foreign Secretary submitted a Public Interest Immunity Certificate, essentially pleading with the judges not to order disclosure of the documents, because it would “seriously harm the existing intelligence arrangements between the United Kingdom and the United States.”
Developments in the United States
This was at the end of August, and although the judges were not persuaded, as the Certificate “did not adequately cover the issue of torture,” they gave the Foreign Secretary six weeks to come up with a better reason. In the meantime, on October 6, the 42 documents -- and the question of their disclosure -- resurfaced in a US court, in relation to Binyam’s habeas corpus case, which involved his right to ask an impartial judge why he was being held. This had initially been filed in 2005, but its progress had been derailed by shoddy laws passed in the wake of the Supreme Court’s ruling, in June 2004, that the Guantánamo prisoners had habeas corpus rights, and could not be imprisoned indefinitely without charge or trial, and it was only reinstated in June 2008, when the Supreme Court revisited its habeas ruling and reinforced the prisoners’ right to seek an explanation for their seemingly endless detention.
Finally confronted by a US judge demanding proof of the charges against Binyam, and also demanding that the 42 documents be handed over to his lawyers, the US government responded by dropping the allegations about the “dirty bomb” plot, and disclosing seven of the 42 documents (in heavily redacted form), which led to another bout of judicial wrangling until finally, at the end of October, all the documents were handed over.
By this time, however, the charges against Binyam for his trial by Military Commission had also been dropped, primarily because his former prosecutor, Lt. Col. Darrel Vandeveld, had resigned spectacularly in September, cursing the Commissions for having turned “a true believer into someone who felt truly deceived,” and pointing out, with fearless conviction, that -- as the furore over the 42 documents showed -- the Commissions’ prosecution office was, both by accident and design, unwilling and incapable of providing defence attorneys with the information they required to mount an adequate defence.
British judges court the media
By November, therefore, the only outstanding issue facing Lord Justice Thomas and Mr. Justice Lloyd Jones related to “seven very short paragraphs amounting to about 25 lines,” written by the judges, which summarized US intelligence reports, sent to their British counterparts, relating to Binyam’s detention in Pakistan in April and May 2002. These had been cut from the judgment in August at the Foreign Secretary’s request, but even though they did not cover Binyam’s ordeal in Morocco or Afghanistan, the judges regarded their summary as being “highly material to [Binyam]’s allegation that he had been subjected to torture and cruel, inhuman and degrading treatment and to the commission of criminal offences,” and they illuminated their remarks with reference to the potential prosecution of war crimes under the International Criminal Court Act of 2001, and of torture under the Criminal Justice Act of 1988, which implemented the provisions of the UN Convention Against Torture.
In an unusual move, the judges then invited representatives of the media to submit reasons why their summary should be made publicly available, citing numerous precedents -- including, most pithily, Lord Shaw’s comment during a ruling in 1913, “Where there is no publicity there is no justice” -- but based, fundamentally, on their “clear view” that “the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice.”
“Open justice” v. a “threat” from the United States
Wednesday’s ruling was, therefore, a response to the media submissions, and was supposed to bring an end to the High Court’s involvement with Binyam’s case, but the judges’ decision to let their desire for “open justice” be overruled by what was repeatedly described as a “threat” by the US government to derail the sharing of intelligence between the US and the UK paved the way for an extraordinary response in the media.
Largely overlooked was the judges’ expectation that, despite their decision to respect the Foreign Secretary’s request to prevent disclosure, the Intelligence Services Committee (ISC), an independent investigative committee that has already looked into Binyam’s case, in 2005 and 2007, will be able to follow up where they have chosen not to, and, with the 42 documents already in their possession, will be able to “ask searching and difficult questions” from witnesses in the intelligence services “on the very important issues raised.”
Instead, what was picked up on was the essence of the long legal struggle between Justice on the one hand, striving to disclose evidence of torture, and The Torturers on the other, bullying principled men into silence.
On Channel 4 News, David Miliband played down talk of a “threat” by the United States, and attempted to defend his advice to the judges, repeatedly pointing out to Jon Snow that intelligence cooperation depends on a “fundamental principle of confidentiality” between both parties. Ignoring the argument that there was a compelling case to be made for revealing information about British complicity in torture, he described the material contained in the documents as “American information” and stated, “Imagine how we would feel if our secrets were displayed, or put into the public domain, by a foreign court.”
However, far from reassuring Jon Snow, Miliband’s stance led to further challenges. Snow asked, “Have you checked whether this threat -- and it is a threat, because the judges call it a threat -- still stands under the Obama administration?” and the Foreign Secretary came up with a careful response that did nothing to reassure anyone that justice would eventually be seen to be done, stating, “There’s no evidence that it doesn’t stand.”
In the most heated exchange, Snow asked whether the British government was “not perhaps as keen as the Americans” to keep the case secret because it revealed British complicity in torture, to which Miliband responded by calling Snow’s question a “really outrageous suggestion,” and insisting, “We never condone or authorize the use of torture.”
However, Jon Snow surely had a point. As the judges themselves declared, in two paragraphs in their judgment which contained a palpable air of bewilderment,
[T]here was nothing in the redacted paragraphs that would identify any agent or any facility or any secret means of intelligence gathering. Nor could anything in the redacted paragraphs possibly be described as “highly sensitive classified US intelligence,” It followed that it was (and remains) our view that the ordinary business of intelligence gathering would not be affected by putting into the public domain the redacted paragraphs as they contain only a short summary of what was reported to the United Kingdom authorities as to what they say happened to BM [Binyam] during his detention in Pakistan in April and May 2002.
Moreover, in the light of the long history of the common law and democracy which we share with the United States, it was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported, as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters. Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials or officials of another State where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.
Conclusion: covering up war crimes
And there, perhaps, is the essential clue to the meaning of yesterday’s judgment. For the Bush administration officials who authorized whatever happened to Binyam in Pakistan in April and May 2002 -- and the two years of torture that followed -- disclosure of the judges’ summary would be “politically embarrassing.” In a more sane world, it would also, probably, constitute evidence of US complicity in war crimes, but the Bush administration did all in its power to redefine torture so that it could avoid ever being held accountable for its actions. For the British government, however, there was, and is, no escape clause, and despite David Miliband’s protestations, it seems clear that Jon Snow was correct to accuse the Foreign Secretary of a desire to keep the information hidden at all costs for selfish reasons.
It is not just because of the “special relationship” that parties on both sides of the Atlantic want to keep the details of Binyam Mohamed’s torture hidden; it is also because, in the UK, those who were complicit in it -- or who turned a blind eye to it -- could find themselves accused of complicity in war crimes. For Binyam, the grisly truth is that, despite the British government’s efforts to secure his release, which, as Miliband noted, had been mentioned and appreciated by the judges, the British authorities have been obliged to choose between opening the door to public knowledge of illegal British activities in the “War on Terror” or sacrificing Binyam Mohamed, and have chosen the latter.