Throughout that time, the British government has denied knowing that, three months after Mohamed’s capture in Pakistan in April 2002, he was rendered by the CIA to Morocco, where he was tortured for a year and a half in connection with a spurious “dirty bomb” plot, and has only admitted that the British intelligence services exchanged intelligence with their US counterparts from July 2002 until February 2003, even though they did not know where he was being held, and had no viable assurances that he was being treated humanely.
Despite this admission, however, the government has been so desperate not to reveal any actual details about what it knew and what it did that the foreign secretary, David Miliband, has spent the last eleven months fighting to persuade the judges in Mohamed’s case not to publicly reveal even a 25-line summary of the intelligence reports received from the Americans, despite the fact that numerous parties have cast doubts on Miliband’s supposed reason for doing so -- because it would apparently cause an unhealable rift between the US and UK intelligence services -- and even though the judges have poured scorn on this idea, suggesting instead that the government is invoking national security issues to protect itself from political embarrassment.
In the last few days, the government has come under renewed pressure to launch an independent inquiry into its complicity in torture, partly in response to a highly critical report on Tuesday by Parliament’s Joint Select Committee on Human Rights, which accused the government of a systematic determination “to avoid parliamentary scrutiny and accountability” over allegations of UK complicity in torture, partly because of the publicity surrounding wide-ranging allegations of British complicity in torture in countries including Bangladesh, Egypt, Pakistan and the UAE, largely exposed by Ian Cobain in the Guardian and recently picked up on by David Davis MP, and partly because of critical amendments to the judgment in Binyam Mohamed’s case from August last year, which were released by the High Court on Friday (PDF).
The amendments to the judgment are enormously significant, as they reveal, for the first time in public (or in a setting of undisputed authority), some of the dark truths that the government has been trying to hide, regarding British knowledge of Mohamed’s treatment in Pakistan, the extent of cooperation between the British and American intelligence services throughout his detention in Morocco and beyond, and, most disturbingly of all, firm evidence that the British government not only knew that Mohamed was held in Morocco, but that they sent an agent to visit him while he was being held there.
In an email exchange, I discussed the significance of these amendments with Clive Stafford Smith, the director of Reprieve, the legal action charity whose lawyers represent Mohamed and 40 other current or former Guantánamo prisoners.
The hidden knowledge of Binyam Mohamed’s torture in Pakistan
In Paragraph 17 of the revised judgment, the judges stated that, since their hearing last summer, “further documents disclosed to us make clear that a composite document was prepared for sending to Witness B for his attention in Karachi; it contained a detailed briefing package which included questions he should ask of BM [Binyam Mohamed] and details of the reports provided by the United States authorities.”
The judges were referring to a 35-page memo, dated May 15, 2002, in which 32 pages were completely censored by the government. As Stafford Smith stated, this memo “was not previously provided to counsel for Binyam or to the media,” and was only made available last week (on July 28). The reason it had not surfaced earlier was obvious from some of the few words in the memo that were not censored, describing “details of the reports provided by the US,” which, as Stafford Smith explained, clearly “included the evidence that Binyam had been tortured -- the evidence that is currently being kept from the media.”
As Stafford Smith also explained, the belated disclosure of the memo causes problems for Witness B, whose interrogation of Mohamed, in Pakistani custody, took place just two days later, on May 17, 2002, as it “reflects false statements under oath by Witness B (and perhaps Witness A as well) on two issues -- one, that all the materials had been turned over back in 2008; and two, that he did not know about the abuse.” Under the government’s rules of engagement at the time, Witness B was under no obligation in May 2002 to report the torture of a British resident held by the US to the government, but his apparent perjury last year, when questioned in the High Court, is another matter.
Moreover, in Paragraph 87 (vi) of the revised judgment, the judges stated, “it is now clear that the reports were studied by other desk officers” -- in other words, by more senior officers -- which prompted Stafford Smith to state, “One question that must be asked is: how high up in the British government did this sordid truth travel?”
The British government’s lies about the extent of its intelligence exchanges with the US
Previously, as the judges made clear in their judgment last August, the British government (and Witness B) admitted that the British intelligence agencies had continued to exchange information about Mohamed’s interrogations with their American counterparts between July 2002 and February 2003, even though they stated that they did not know where he was being held. This shocked the judges to such an extent that they declared that by “supplying information and questions for his interviews,” while he was being held in an unknown location, “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,” and they highlighted the significance of the “wrongdoing” by pointing out that it referred to torture, seizing on an admission, made on behalf of David Miliband, that Mohamed had “established an arguable case” that, until his transfer to Guantánamo in September 2004, “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.”
However, as the amended judgment revealed, the exchange of information did not come to an end in February 2003, meaning that, once again, Witness B lied to the court, and the government was content to hide behind these lies.
Paragraph 30 (iii) of the amended judgment revealed that five reports of Mohamed’s interrogations were provided in February 2003. This is within the timescale admitted by Witness B and the government, but, as Stafford Smith explained, “It is extraordinary that there were five reports. Previously, only one was mentioned, and only one turned over by the US in [habeas corpus] proceedings there [last autumn].” While Stafford Smith speculated that, in all probability, these reports “would reflect answers to the British questions, showing that Britain was gladly receiving on-going answers that had been tortured out of Binyam in Morocco,” further revelations in the amended judgment were even more damaging for Witness B and the government.
In Paragraph 30 (iv), for example, it was revealed that, “On 15 April 2003, the SyS [British intelligence] requested, in light of BM’s reported cooperation, a further interview by Witness B; a list of over 70 further questions was also sent.” As Stafford Smith explained, “This was perjury,” because the British government had stated (and Witnesses A and B had sworn under oath) that all contact ended in February 2003. Stafford Smith added, “Witness B must have known it, as he was the one who wanted to interrogate Binyam again.”
However, the discovery that everyone concerned had somehow omitted to mention these events builds up to something that much more closely resembles a conspiracy of silence with the revelation, in Paragraph 30 (v), that “Further information from debriefings of BM was supplied to the United Kingdom authorities by the United States authorities on 14 November 2003, 14 January 2004 and 15 March 2004.”
As Stafford Smith explained,
This is outrageous. Witnesses A and B swore under oath in court that all efforts to locate Binyam or have him answer questions ended in February 2003. This was perjury pure and simple. Now we know that further information was supplied at regular intervals through to March 2004. Binyam was rendered to the “Dark Prison” [near Kabul, Afghanistan] on January 21, 2004. This means that the UK was receiving the fruits of his torture both from Morocco and the “Dark Prison.” None of this has been provided to us in the habeas proceedings in the US. Where is this material and why is it being kept secret?
The British government’s lies about not knowing Binyam Mohamed was being held in Morocco
The government’s persistent claims that they did not know where Mohamed was being held after the CIA spirited him out of Pakistan in July 2002 have always provided them with some kind of a veil of deniability, however thin and insubstantial that veil may have been. This position should have been fatally undermined in May, when David Rose reported for the Mail on Sunday that a British citizen of Moroccan origin, known as Informant A, who was seized during the US-led invasion of Afghanistan and persuaded to work as a spy for the British, had visited Mohamed while he was being held in Morocco. However, for some reason the story was generally ignored in the rest of the mainstream media, and when Clive Stafford Smith tried to tell the Commons Committee on Foreign Affairs about it, his testimony was spiked by an unidentified official in an unidentified government department, who invoked an inappropriate Commons rule to prevent him from talking about it.
However, although the amended judgment made no mention of Informant A, because the judges have never been presented with an opportunity to ask questions about his existence, other passages made clear that the British government was well aware of where Mohamed was being held. The first inkling that this was the case came in Paragraph 29 (v)(a), in which it was stated that, “By 19 August 2002, the SyS were aware that BM was being held in a covert location where he was being debriefed. Direct access was not possible, but the SyS were able to send questions to the US authorities to be put to him.” This was followed up, in Paragraph 87 (x), when the judges stated that the UK intelligence services “continued to supply information and questions … after September 2002 when they knew the circumstances related to his continued detention.” The key here is spelled out explicitly by the judges, as, in the initial judgment, they did not write that the British “knew” the circumstances in which Binyam was held, but wrote only that they “must also have appreciated” them.
Stafford Smith added that the use of the word “knew” was also critical “because it demonstrates that the judges probably believe that Witness B (and Witness A) committed perjury in their earlier testimony.” Even so, it is by no means the most important passage.
In Paragraph 35 (A), which is the most crucial of all the amendments, the judges stated:
It is clear from documents subsequently supplied to us that Witness B visited Morocco once in November 2002 and twice in February 2003. As no information about these visits was available at the hearing Witness B was not questioned in the open or closed sessions about these three visits or the document referred to in paragraph 30 (iv) [see above]. We have been informed that the SyS maintains that it did not know that BM was in Morocco in the period in question.
Ignoring for a moment the ludicrous, reality-defying claim that the intelligence services are still maintaining that they did not know that Binyam Mohamed was in Morocco, “This,” as Stafford Smith explained, “is the real shocker,” because the judges’ additions finally provide evidence that the government’s entire policy of denial regarding Mohamed’s long ordeal in Morocco has been undermined where it really counts: in the British High Court.
It is difficult to see how the government can worm its way out of the implications of this alarming revelation, particularly, as Stafford Smith explained, because the dates are so relevant to the probable sequence of events, involving Informant A, that has been established by Reprieve, which is as follows:
Informant A [also identified as MA], a British resident from Morocco, had been captured, badly injured, while fighting in Tora Bora. He told Tarek Dergoul [a British citizen released from Guantánamo in 2004] and Shaker Aamer [a British resident who is still held] in [the US prison at] Bagram [airbase in Afghanistan] that he was going to do whatever he had to do to get out of his scrape. He was not sent to Guantánamo -- which is suspicious enough -- but he was sent to Morocco, where the Moroccans told Binyam that he was cooperating with them.
Then, in September 2002, in order to show demonstrative evidence that they had told Binyam the truth, the Moroccans “exhibited” Informant A to Binyam. They knew each other from London. Informant A was then working with the UK, which is further evidenced by the fact that in early 2003 he was able to return to the UK -- notwithstanding the fact that he had a criminal record, would not have been allowed into the country, and “should” have been in Guantánamo.
In October 2002, Witness B went to Morocco -- almost certainly to talk to Informant A. In February 2003, Witness B went to Morocco twice, again likely to facilitate Informant A’s return to the UK. Informant A has made many statements to people in the UK that he has talked to the British intelligence agents since 2003 -- yet no move has been made to remove him from the country. Informant A has told various people (since his return to the UK in 2003) that he saw Binyam in Morocco. It is inconceivable that he has not told this to the British intelligence agents. All this needs to be subject to examination under oath of Witnesses A and B, and Informant A.
The revelation that Witness B visited Mohamed in Morocco in October 2002 also explains the significance of Paragraph 30 (0) in the amended judgment, in which it was stated that “An agenda for a video conference on 23 October 2002 included an update by the US authorities on their continued interviewing of BM.”
As Stafford Smith explained, “The highly suspicious thing here, of course, is that no minutes of the meeting have been divulged,” and the presumption, therefore, is that “some highly incriminating information was passed at this meeting,” which very probably included discussions about Informant A.
In conclusion, Stafford Smith stated, “It is now obvious that the British authorities were not telling the truth when they denied knowing that Binyam was in Morocco. Again the question for the police and the public must be: how far up the political ladder did this knowledge go?”
As politicians continue to press the government to conduct an independent inquiry into Britain’s complicity in torture, they really do need to look in detail at the extraordinarily significant developments in Binyam Mohamed’s case since the story of Informant A first emerged in May, and the role that Lord Justice Thomas and Mr. Justice Lloyd Jones have just played in bringing the murky story of Mohamed’s rendition and torture in Morocco into sharp focus; so sharp, in fact, that we are now obliged, as I hinted at above, to believe that, when Witness B and Informant A visited him in Morocco, neither they nor their bosses knew where he was being held, and they must therefore, have rolled up at Morocco’s notorious Témara prison as part of a Magical Mystery Torture Tour arranged by the CIA.