Foreign Secretary loses Appeal in Binyam Mohamed torture case

February 10, 2010

The Court of Appeals today ordered the publication of seven paragraphs that the Foreign Secretary had sought to suppress for ‘national security’ reasons. 

Here are the paragraphs:

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the inter views were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities]

Reprieve has been involved with this litigation against the British Government in the High Court on behalf of our client Binyam Mohamed. A summary of the case and all relevant court documents are set out below.

Background

British resident Binyam Mohamed spent seven years in US custody, most recently in Guantánamo Bay. He came home to the UK in February 2009, after all charges against him were dropped. 

Binyam was detained in Pakistan and tortured by his Pakistani guards. During this time, he was interrogated by the British and US intelligence services. The British agent was later cross-examined in the proceedings before the British Court and it was clear that he knew that Binyam was to be handed over to the Americans and also that he was at risk of harm. 

A few months later, Binyam was rendered to Morocco. The British intelligence agency knew that he had disappeared but did not know where he had been taken – they wrote to the US intelligence agency, enquiring as to his whereabouts. In late September 2002, two months after Binyam arrived in Morocco, British intelligence received a report from the US authorities of an interview with Binyam. So, from that time, British intelligence knew that the US authorities were aware of Binyam’s location and that they were interrogating him, directly or indirectly. 

Despite knowing that Binyam was being interrogated on behalf of the US, but that he was not in the US or in Bagram (and thus, presumably, was somewhere pretty unpleasant), the British intelligence services not only failed to make further enquiries of the US, they provided the US with information relating to Binyam and questions they would like to be put to him in interrogation. Binyam said that one of his worst moments of the last seven years was realising that the British, whom he had hoped would rescue him, were in fact working with his torturers. During his time in Morocco, Binyam was subject to really medieval torture – among other horrors, a razor blade was regularly taken to his genitals. 

After 18 months in Morocco, Binyam was taken to the Dark Prison in Afghanistan, where he was kept in total darkness and tortured for a further six months before being taken to Guantánamo Bay. He remained there for four years.

The Litigation

All UK litigation has been conducted with solicitors at Leigh Day & Co and barristers from Blackstone Chambers and Matrix Chambers. Reprieve is very grateful to Richard Stein and Jamie Beagent at Leigh Day and to Dinah Rose QC and Ben Jaffey at Blackstones and Philippe Sands QC of Matrix Chambers for all their work on this case.

Reprieve acted for Binyam in his military commission hearing in the US and brought habeas proceedings on his behalf in the US Federal Courts.

At the same time, Reprieve brought litigation on Binyam’s behalf in the English Courts, on the basis of evidence that the British government was ‘mixed up in’ Binyam’s treatment. There is a legal basis (known as Norwich Pharmacal after the case which instituted it) which allows a Claimant to sue for disclosure from a third party who is ‘mixed up in’ wrongdoing. We asked the British government to disclose to us the correspondence it had with the US relating to Binyam’s detention and interrogation. The British government refused to disclose the information and so we sued on Binyam’s behalf for disclosure of the documents, on the basis that they would be vital to Binyam’s defence before the military commission. The Claim Form, Amended Grounds of Claim and the Government’s Acknowledgement of Service and Summary Grounds of Resistance are here.

In July 2008, there was a week-long hearing during which a secret service agent was cross-examined (transcript here). After that hearing, the judges ruled that the UK was mixed up in wrongdoing and that the Foreign Secretary was under a duty to disclose 42 secret documents to Binaym’s lawyers (judgment here).

David Miliband then claimed Public Interest Immunity, arguing that releasing the documents against the will of the Americans would damage the UK’s relationship with the US and undermine the “War on Terror”. (PII Certificate here).

However, following a hearing in late August, the Judges ruled that Mr Miliband’s reasons were flawed because he had not given proper weight to the gravity of the torture and mistreatment of Binyam (judgment here). Mr Miliband was given a second chance to reconsider his position and subsequently produced a second Certificate in early September (here).

In October 2008, the US turned over seven of the 42 identified documents to Binyam’s lawyers, each heavily censored. Further, the Military Commission dropped all charges against Binyam. The British Court issued a further judgment (here), making it clear that if the US prosecutors did not disclose the documents, the UK courts would order disclosure.

As a result, the US prosecutors disclosed the 42 documents to Binyam’s lawyers. 

On 22 October, the British Court took the unusual step of inviting the press to make an application for the publication of details of Binyam’s mistreatment which had been removed from its original judgment at the request of the Government. The press duly applied to the Court and also sought disclosure of the secret documents. Mr Miliband responded by issuing a statement that the US would cut intelligence-sharing ties with the UK if this information or the documents themselves were released to the press. 

As a result, on 4 February, the Court stated that documents containing details of Binyam Mohamed’s ill-treatment at the hands of the US and Pakistanis should not be published – ie because the US authorities had threatened to withhold intelligence sharing (judgment here). 

The Judges stated in that judgment that they had been informed that the threat remained in place even after the change of administration in the US. They were deeply critical of this stance which prevented them from ordering disclosure of information they ‘consider so important to the rule of law, free speech and democratic accountability’.

After judgment was delivered, David Miliband immediately went on public record to deny that the statements made by the US Government constituted a threat. It also transpired that no-one had asked the new Obama administration whether it took the same view as its Bush predecessor. 

On 5 February, we made an application to the Court requesting that the judgment be reopened and the case reconsidered in light of these new facts (application and arguments in favour and against here).

On 23 February 2009, Binyam was released from Guantanámo Bay and returned to England.

26 March 2009 – after Reprieve brought considerable pressure to bear, the Attorney General decided to refer the question of whether the British government was implicated in Binyam’s treatment to the DPP.

On 22 April 2009, the Court heard our application to reopen the judgment. The British Government reiterated the US government’s hard-line position on the case, supposedly continued under President Obama and argued that the US government continued to demand the suppression of evidence concerning Binyam Mohamed’s abuse. 

The judges expressed some incredulity at this argument, citing the new openness of the new Administration as evidenced by Obama’s recent releaseof memos detailing CIA torture methods. 

On 8 May 2009, the High Court announced that it would re-open its original judgment. A further hearing took place on 22 May to hear fresh argument on whether the information and/or documentation should now be released. Further submissions are currently being made and the Court’s final judgment should be known in the not too distant future.

On the 30th of July 2009 the Court issused a revised judgement. Read Reprieve’s analysis of the judgment.

On 16 October 2009, the High Court ruled that 7 redacted paragraphs of their initial judgment should be made public. Lord Justice Thomas and Mr. Justice Lloyd stated that there is a “compelling public interest” in disclosing the information contained in these paragraphs. 

The paragraphs summarise CIA documents passed to MI5 relating to Binyam’s ‘treatment’. The paragraphs were initially redacted because the British government said that if the paragraphs were made public, British national security would be jeopardised, as the publication would cause the US to review its intelligence-sharing ties with the UK.

In a scathing judgment, the Judges rejected Mr Miliband’s position outright, stating “we cannot accept, looking at the matter objectively on all the evidence…and as a matter of reality, that there is a real risk that the US would reassess its intelligence relationship or reduce its intelligence sharing if we made the 7 paragraphs public”.The judges further argued that ‘it cannot be suggested that information as to how officials of the US Government admitted treating BinyamMohammed during his interrogation is information that can in any democratic society governed by the rule of law be characterised as ‘secret’ or as ‘intelligence’. In response, Mr Miliband has said that he is “deeply disappointed” and that he will be appealing the decision, thus delaying the disclosure of the paragraphs. On November 19, the court published a revised version of their fifth judgment and also a sixth judgment. The judges were scathing about the Foreign Secretary’s view that publishing torture methods poses a risk to national security. The judges made it clear that the Government has cynically abused the Public Interest Immunity system, using it to hide embarrassing information from the public.

The judges queried the fact that the Foreign Secretary is attempting to suppress descriptions of torture methods used on Binyam Mohamed, citing US disapproval — despite the fact that the methods have already been published by the Obama Administration.

Today, the Courts of Appeals have dismissed David Milibands appeal. (see judgement