High Court judgement: UK Goverment fails to take sufficient account of Binyam Mohamed’s torture

August 29, 2008

Image of a hand grasping onto a bar of a jail cell

Lord Justice Thomas and Mr Justice Lloyd Jones handed down their second judgment this afternoon on the case of Guantánamo Bay prisoner and British resident Binyam Mohamed.

Foreign Secretary David Miliband had been given one week in which to reconsider the government’s refusal to share evidence with Mr. Mohamed that could help prove his innocence. The judges decided that his claim of “Public Interest Immunity” (PII) was insufficiently supported in that he had not taken properly into account the torture suffered by Binyam.

The judges decided that Mr. Miliband’s evaluation of the case “failed to address, in light of the allegations made by [Binyam Mohamed], the abhorrence and condemnation accorded to torture, cruel, inhuman or degrading treatment.” UK Judgment II, at para. 20.

In other words, the Foreign Secretary has balanced Mr. Mohamed’s right to a fair trial with the strong US desire that this information not be disclosed, and come down in favour of the Bush Administration – which is, Reprieve contends, itself a difficult outcome to justify. But the Court found that Mr. Miliband had not forthrightly taken into account the fact that Mr. Mohamed has gone through torture of a medieval quality prior to facing a military commission in Guantánamo Bay.

The Court gave Mr. Miliband another week – until Friday, September 5, 2008 – to reconsider.

As Clive Stafford Smith, Director of Reprieve, explained after the release of the second judgment:

“The British government’s action has, frankly, been embarrassing. The government says it wants to help Binyam Mohamed, yet then has the nerve to pretend that the British public interest is best served by covering up America’s criminal act of kidnapping and torture him.”

He added:

“The British government effectively says that a British resident’s right to a fair trial is less important than avoiding embarrassing the Bush Administration, and we’ll just gloss over the fact that he was tortured. But British national security cannot ever be enhanced by torture. To borrow from President Bill Clinton’ speech two days ago – the world is more impressed by the power of our example, than the example of America abusing its power. To suggest otherwise is, surely, Britain going back to the role of poodle.”

Richard Stein, of Leigh Day & Co., said:

 “Today’s judgment discloses the shocking fact that Foreign Secretary failed to give any proper weight in secret submissions he made to the Court to the abhorrence of torture when he purported to determine that it was in the public interest not to disclose the evidence of ill-treatment to our client. This is extremely surprising given that this case is all about Binyam’s rendition and his torture at the behest of the US. The Court has given the Foreign Secretary a further chance to reconsider his position before passing judgment. We await his response with interest.”

Background

British resident Binyam Mohamed (30) has been held by or on behalf of US forces since April 2002, when he was seized in Pakistan. Rendered to Morocco in July 2002, he was tortured on behalf of the United States for 18 months (in sessions that included regularly having his genitals cut with a razor), and was then held for nine months in Afghanistan, first at the “Dark Prison”, a secret prison run by the CIA, where he was also tortured, and then at Bagram airbase. He has been held at Guantánamo since September 2004.

Reprieve represents Mr. Mohamed in Guantánamo Bay, and the US now seeks to use the fruit of this torture in a Guantánamo military commission.

In May 2008, Reprieve, working with solicitors from Leigh Day & Co., sued the British government, seeking the release of information relating to British knowledge of Mr. Mohamed’s rendition and torture. This followed the government’s refusal to disclose such evidence after an earlier request to do so, claiming that “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted” and that “it is HM Government’s position that … evidence held by the UK Government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by his British lawyers.

Last Thursday, following a judicial review in the High Court, Lord Justice Thomas and Mr. Justice Lloyd Jones delivered a stinging rebuke to the British government, ruling that by interviewing Mr, Mohamed while he was held unlawfully in Pakistan in May 2002, and by “supplying information and questions for his interviews,” while he was held by or on behalf of the United States in an unknown location, “the relationship of the United Kingdom government to the United States authorities in relation to BM [Mr. Mohamed] was far beyond that of a bystander or witness to the alleged wrongdoing.”

The judges also ruled that US denials that Mr. Mohamed had been tortured were “untenable”, and stated that there was “no good reason” for the American government to refuse to hand over potentially exculpatory evidence in its possession. Given that this was the case, however, they ruled that the British government had an obligation to hand over the information in its possession, insisting that this was “not only necessary but essential for his defence.” They did, however, grant the government six days in which to consider its response.

On Wednesday, what was initially regarded as a straightforward hearing for the British government to announce its response to the judges’ ruling turned into another long session as the government responded by filing a Public Interest Immunity (PII) Certificate, and the US State Department attempted to strike a deal through correspondence with the Foreign and Commonwealth Office (FCO).

John Bellinger, the US State Department’s Legal Adviser, claimed that public disclosure of the documents was “likely to result in serious damage to US national security and could harm existing intelligence information-sharing arrangements between our two governments.” His only concession to the judges’ ruling was to note that the Office of the Chief Prosecutor in the Office of Military Commissions had agreed to provide the British intelligence documents (44 in total) to the commissions’ Convening Authority, Susan Crawford, “subject only to the condition that the names of American and British government officials and the locations of intelligence facilities will be redacted from the documents prior to their being provided.” He added that, if Mr. Mohamed’s trial goes ahead, the redacted documents will be made available to his military lawyer at the “normal discovery phase” of the process.

In a separate email to the FCO, Stephen Mathias, one of Mr. Bellinger’s deputies, claimed that the “national security of the UK” would also be affected by disclosure of the documents.

As Ben Jaffey argued in court, neither Mr. Bellinger’s “carefully calibrated concessions” nor the British government’s claim of Public Interest Immunity were tenable. He pointed out that the case did not involve public disclosure of the documents, but only the confidential disclosure to Mr. Mohamed’s lawyers, Lt. Col. Yvonne Bradley, and Clive Stafford Smith, Reprieve’s Director, who both have US security clearance. He added that the supposed concessions demonstrated merely that the US government was determined to find any method possible to prevent disclosure, and added that nothing offered by the State Department addressed the “central question” relating to Mr. Mohamed’s rendition and torture: “where was Mr. Mohamed between 2002 and 2004?”

Mr. Jaffey was equally dismissive of the British government’s PII claims, noting, in particular, that David Miliband, the Foreign Secretary, had effectively conceded that the British government was going to hand over the intelligence documents to Mr. Mohamed’s lawyers until the State Department intervened.

Lord Thomas and Justice Jones held five days of hearings involving evidence of British complicity in Mr. Mohamed’s torture.

In its first judgment last week, the British court expressed deep concern that the US authorities will not even admit where Mr. Mohamed was for two years, from May 2002 to May 2004. While US authorities deny that anyone has been rendered to another country for torture, Mr. Mohamed’s allegations are unrebutted, and are strongly supported by evidence in UK hands. For example:

• The US would not even tell the UK where he was for the two years he was missing.

• Evidence provided by the UK to the US matched the material that Mr. Mohamed says was used by the Moroccan torturers

• Evidence in British hands proves that various of the allegations against Mr. Mohamed are false. The Court held that Mr. Mohamed was not likely to receive this exculpatory information from the US authorities, and found that the UK should reveal it.

The Court reminded the British and American governments that “the torturer has become like the pirate and the slave trader before him … an enemy of all mankind.”

Copies of both judgments are available through Reprieve, along with an analysis of the case.

-ENDS-

For further information and interviews, please contact Clare Algar at Reprieve’s Press Office on: clare.algar@reprieve.org.uk or on 020 7427 1085.

Note for editors:

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives.

Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA. Reprieve lawyers currently represent over thirty prisoners held in Guantánamo Bay. Reprieve lawyers have represented Mr. Mohamed since 2005.

For more details about Reprieve, visit: www.reprieve.org.uk.