In what human rights campaigners are calling "an extraordinary and disturbing development" in the Court of Appeals verdict on the Guantánamo torture secrecy case of Binyam Mohamed, which involves both the UK and US authorities, it has emerged that the British Government’s barrister wrote a note to one of the judges in an attempt to manipulate the draft judgment.
This note was not copied to lawyers for the media, which prevented them objecting. On the morning of 10 February 2010, the court ordered that the other parties to the case now be allowed to respond, after which there will be a hearing as to whether the judgment will be altered.
Ironically, says Reprieve, the legal charity which has been involved with the case, it was precisely the government’s attempt to tamper with a public judgment which led to the appeal. Foreign Secretary David Miliband tried to remove seven paragraphs summarising Binyam Mohamed’s torture from his first Court judgment; the High Court ordered that they be published and today the Court of Appeal agreed. Now their own judgment has been subjected to attempted interference.
Reprieve welcomed the decision, in which three senior Appeal judges (the Lord Chief Justice (Lord Judge), the Master of the Rolls (Lord Neuberger), and the President of the Queen’s Bench Division (Sir Anthony May)) dismissed the Government’s argument for secrecy and ruled that pressing public interest demanded that seven paragraphs summarising the treatment of Binyam Mohamed be published.
The paragraphs confirmed Binyam’s torture, referring to his sleep deprivation, the threat to ‘disappear’ him, the fact that "the interviews were having a marked effect on him and causing him significant mental stress and suffering" and the fact that "the reports provided to the SyS made clear to anyone reading them that BM was subjected to the treatment that we have described and the effect upon him of that intentional treatment."
The Foreign Secretary argued in the High Court that the publication of the seven paragraphs in their judgment would be damaging to national security. After his argument was dismissed in the High Court, it was heard by the Court of Appeals in December 2009.
Today the Foreign Secretary’s argument was again dismissed, partly because the information had been disclosed by the US courts in a judgment de-classified last month. The judges decided that the US-UK intelligence sharing relations would not be damaged by the English Court publishing information which a US court had already published.
The government has indicated that it will not appeal the judgment.
Clive Stafford Smith, Director of Reprieve, said: “Our Government went to enormous lengths to prevent the British public from seeing this tiny fraction of Binyam’s story. They still refuse to admit that he was abused. Today’s decision is very welcome, but the paragraphs revealed are only the tip of the iceberg when it comes to British complicity in torture – much more is to come. Today's judgment shows that our government’s attempts to hide shameful secrets behind ‘national security’ arguments are misguided and doomed to fail.”
Clare Algar, who is Executive Director of Reprieve, added: "The British Government must stop trying to manipulate Court judgments – it is not the government’s place to tell the Court what to say, especially not behind closed doors.”
The case began with Binyam Mohamed’s lawyers challenging the Foreign Secretary’s decision to refuse access to secret intelligence documents containing information about Binyam’s treatment, which would aid in his defence and help free him from Guanatanamo Bay. After three judgments by the High Court, the case eventually resulted in access for Binyam’s lawyers, which ultimately enabled his release from Guantanamo.
The judges were so shocked by what they saw in the secret documents that they invited the international media to seek access to the ‘secret’ sections of their first judgment in the case, in particular seven paragraphs which the Government insisted should be censored. The seven paragraphs summarise Binyam’s treatment whilst detained in Pakistan. They were written by the judges and drawn from 42 documents supplied by the British Intelligence Services to the court.
Lawyers for the international media, including Associated Press, The Guardian and the New York Times, duly applied for access to the seven paragraphs on the grounds of pressing public interest. In a hearing on the matter, the government vigorously opposed this, citing the Bush Administration’s ‘threat’ to withdraw intelligence co-operation if the paragraphs were published.
The Court decided (in its fourth judgment on the case) that given the threats made by the US, it would not order publication of seven paragraphs.
It emerged from the parliamentary statement of the Foreign Secretary, David Miliband, and the policies of the Obama Administration, that the US ‘threat’ was no longer credible. Lawyers for Binyam Mohamed and the media called for the case to be re-opened.
The Court decided (in its fifth judgment on the case) to re-open its fourth judgment and ordered that the seven ‘secret’ paragraphs should be published. They stated that, on the evidence available to the Court, the alleged threat to national security was not a genuine or serious one. However, at the request of the Foreign Secretary and the security and intelligence services, four paragraphs of the Court’s reasoning in this fifth judgment were redacted, supposedly to protect national security.
In their sixth judgment, the Court addressed the Foreign Secretary’s redactions, indicating that Government had cynically abused the Public Interest Immunity system, simply to hide embarrassing information from the public.
The judges took the opportunity to reveal further, previously secret, information about the content of the famous seven paragraphs describing the mistreatment of Binyam Mohamed by the CIA in Pakistan. They revealed that what was done to Binyam was analogous to the ‘enhanced interrogation techniques’ described in the declassified CIA torture memos.
The Foreign Secretary appealed the fifth and sixth judgments. The appeal was expedited and was heard by the Court of Appeal (Lord Judge CJ, Lord Neuberger MR and May LJ) on 14, 15 and 16 December. The judgment was released on 10 February 2010 at 9.30am.
Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. It investigates, litigates and educates, working on the frontline to provide legal support to prisoners unable to pay for it themselves. Clive Stafford Smith, the founder of Reprieve, has spent 25 years working on behalf of people facing the death penalty in the USA.
The NGO's current casework involves representing 33 prisoners in the US prison at Guantánamo Bay, working on behalf of prisoners facing the death penalty, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’
Reprieve has published the seven redacted paragraphs here: http://www.reprieve.org.uk/2010_02_10binyam_secrecy