BINYAM MOHAMED

I haven't blogged for a couple of days, as I have been busy reading the (copious) material on the case of Binyam Mohamed, starting with the 296 paragraph judgment by the U.K.'s Court of Appeal, which was issued on 10 February 2010. The judgment, and the related open judgments made earlier by the Divisional Court, should be required reading for anybody concerned about the role of the executive in combatting terrorism, and the potential for infringements of personal liberty, whether through mistakes or worse.

Since the issue decided by the appeal was a relatively technical one, what Sir Anthony May called in his judgment "satellite litigation ... overlain, and to an extent obscured, by forensic and procedural froth", let me get one issue out of the way at the start. Binyam Mohamed, an Ethiopian-born British resident, spent almost 7 years in prison in Pakistan, Morocco, Afghanistan and Guantanamo Bay, before being released without charge in 2009. During that time he was tortured, either directly by U.S. officials, or if not directly, certainly with their connivance. We know this because of the findings of a U.S. judge in the separate case of Farhi Saeed Bin Mohamed v. Barack Obama, a habeas corpus application made in July 2005 by another Guantanamo Bay inmate. The U.S. authorities objected to the petition for habeas corpus in part on the basis of incriminating evidence provided by Mr. Binyam Mohamed. Since Mr Binyam Mohamed had said that this incriminating evidence had only been obtained from him because of torture, the judge was required to assess this evidence.

It is worth setting out the summary of the judge's facts, which are included in para 23 of the Court of Appeal judgment by Lord Judge, the Lord Chief Justice:

"a) (Mr Mohamed's) trauma lasted for 2 long years. During that time he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.

b) In this case, even though the identity of the individual interrogator changed, (from nameless Pakistanis, to Moroccans, to Americans, and to special agent (the name is redacted)), there is no question that throughout his ordeal, Binyam Mohamed was being held at the behest of the United States .... The court finds that (Mr. Mohamed's) will was overborne by his lengthy prior torture, and therefore his confessions to special agent ... do not represent reliable evidence to detain petitioner."

In other words, what Mr Binyam Mohamed had said was true. Given that, is it so surprising that ordinary people in other countries have poor opinions - and I put it no higher than that - of the United States? As Lord Judge pointed out, torture has not been allowed in England since 1640, a common law tradition which predates the founding of the United States by more than 100 years. Yet here we are in 2010, and it still goes on. To the riposte favoured by the Bush adminstration that exceptional times require exceptional measures, I would merely quote the great dictum that "he who would put security before liberty deserves neither".

If the Court of Appeal case was not about Mr Mohamed's torture, at least not directly, what then was it about? The answer lies in 2008, before he was released from Guantanamo Bay. At the time, it was thought that the U.S. would be bringing charges against him based on his confessions, charges which would have carried the death penalty. His lawyers applied to the U.K. Divisional Court to gain access to intelligence material provided by the U.S. to the U.K. under their intelligence-sharing arrangements, material which would demonstrate the torture allegations outlined above, and thereby enable Mr Mohamed to defeat the charges in the U.S. The Foreign Secretary resisted this application, on the grounds of the so-called "control" principle, whereby intelligence provided by one country to another should not be released to third parties without the consent of the originating country. In essence, the Foreign Secretary lost that battle, and the material was released to Mr Mohamed's lawyers. As things turned out, it was not needed, since he was released without charge (though the fact that his lawyers had obtained the material might well have been a factor in his release).

However, the Court of Appeal judgment was not even about that. What it concerned was the publication of the Divisional Court's first open judgment (there were a series of judgments, some open and some closed) in which seven short paragraphs detailing Mr Mohamed's treatment had been "redacted" (i.e. removed). At the time, this treatment had not been definitively decided as being true, and the Foreign Secretary argued that it would be wrong to publish it, notwithstanding the normal practice in the U.K. that judgments are made in their entirety in open court. In their fourth open judgment, the Divisional Court weighed up the pros and cons, and decided in favour of keeping the redaction. They then reopened that judgment, and subsequently overturned it, in their fifth open judgment. It was that decision, which was upheld by the Court of Appeal. One of the key factors in their decision was the judgment of the U.S. court outlined above, which was given after the Divisional Court's fifth open judgment, and which rendered much of the argument academic.

If the decision of the Court of Appeal, heard by its three senior judges (the Lord Chief Justice, the Master of the Rolls, and the President of the Family Division), turned out to have been a redundant technicality, why then is it important? For two reasons, I think.

First, the Foreign Secretary maintains, both on the Foreign Office website and in his statement to Parliament, that the U.K. Government "fought the case to preserve (the control) principle". The material in question was intelligence material, it had been given by the U.S. to the U.K. as such, it should not therefore be released. The control principle was "inviolable".

I must admit that I don't believe this. For the simple reason that both the Divisional Court and the Court of Appeal accepted the control principle. Although, as Lord Judge said, it is "not a principle of law", it is "integral to intelligence sharing arrangements". Where the courts differed from the executive was the extent of the principle, whether it is indeed "inviolable" or whether it has to be set aside as part of a balancing exercise in certain limited, albeit exceptional, circumstances, in order to achieve justice or comply with the rule of law. The courts had in fact all gone through such a balancing exercise. In the Divisional Court's fourth open judgment the balance had come down in favour of redaction because of the Bush Administration's categorical statement that intelligence-sharing with the U.K. would suffer if the relevant paragraphs were published, thereby reducing the safety of the U.K. The re-opening and subsequent overturning of that judgment came about because of public statements by the incoming Obama Administration that suggested a new approach; and although the Americans subequently confirmed that they would prefer the paragraphs to remain redacted, they appeared to be less categorical in their spelling-out of the consequences. Both Lord Neuberger and Sir Anthony May were inclined, on their balancing exercise, to revert to the position of the fourth open judgment and keep the paragraphs redacted. But then came the U.S. judgment outlined above, and the exercise became redundant; as Sir Anthony May put it, by that time the Foreign Secretary was seeking to "defend a principle entirely devoid of factual content on which to hang it".

The need to modify the principle in certain circumstances is not new. Ever since the House of Lords decision in Conway v. Rimmer (1968) it has been settled law that the ultimate decision about the disclosure of documents rests with the judiciary, not the executive; one must assume that the Foreign Secretary's own legal advisers know this. And although the judiciary has been at pains in recent times to defer to the view of the executive when it comes to matters of national security - as, indeed, they did in this case - it is ultimately for the judiciary to review the executive's actions. As Lord Judge put it:

" ... I have been unable to eradicate the impression that we are being invited to accept that once the Foreign Secretary has made his judgment of all the relevant considerations, including the interests of justice, and notwithstanding that in law, the control principle is not absolute, so far as the court is concerned, as a matter of practical reality, that should be that. However, although in the context of public safety it is axiomatic that his views are entitled to the utmost respect, they cannot command the unquestioning acquiescence of the court."

Why then did the Foreign Secretary persist in the case, if his official reason had already been conceded? Why, in particular, did he persist once the U.S. judgment was in the public domain? My second point is that the answer, I fear, lies in something I mentioned earlier in my blog on the Iraq War Inquiry, namely the disproportionate weight placed by successive U.K. Governments on the "special relationship" with the U.S. and their unwillingness to do anything which might be perceived as criticising that relationship. Would the U.K. Government have gone to such lengths to pursue "satellite litigation" if the relevant intelligence had come from (say) the French or the Australians? Not being party to such intelligence-sharing, I have absolutely no means of knowing for sure. But I have to say that I doubt it.

Finally, let us not forget that this case is not yet closed. A police investigation is looking at the possibility that members of the U.K. intelligence community broke the law by providing assistance to Mr Mohamed's torturers. And Mr. Mohamed is preparing a civil case for damages. One can only wish him the very best in his endeavours.

Walter Blotscher