Legal action charity Reprieve has today released an analysis of the case of Binyam Mohamed v Foreign and Commonwealth Office aimed at debunking the dangerous myths around the case.
The report details how popular misconceptions about Binyam Mohamed, propagated by the security and intelligence services in response to being sued, are now being used to justify the Government’s plans for secret justice.
The key myth is that the current system of Public Interest Immunity (PII) did not work in Binyam Mohamed v Foreign and Commonwealth Office, and is therefore faulty.
The truth is that PII was extremely effective in Binyam Mohamed - no secret intelligence material was released and judges continually deferred to the Government on claims of national security.
Yet the Government’s myth has gained traction with the public and even in some quarters of the legal profession - and has created widespread and entrenched misunderstanding of the case.
Reprieve’s Executive Director, Clare Algar said: “When the Binyam Mohamed case was being heard in the High Court, the then-British Government repeated over and over in the media that the case endangered national security by releasing sensitive information. This claim was made to support the Government’s argument in Court - and is demonstrably false. As we said at the time, all that was at stake was national embarassment.”
“In fact, no secret material was revealed in the Binyam case. All that was ‘revealed’ was information already in the public domain.
“The British Government’s claim that the US has withdrawn intelligence sharing after Binyamis therefore either false or based on the CIA’s misunderstanding of the case. If the CIA does indeed misunderstand, then it is up to the British Government to correct this. It is supreme folly to formulate justice policy based on the misunderstanding by a foreign security service of an English court case.”
Reprieve’s Legal Director, Cori Crider said: “I’ve seen the secret material in Binyam, and if I told you what it said I’d be in the cell next to Bradley Manning. The sad fact is that the CIA got upset because we – Binyam’s American lawyers – were able to defend him from capital charges with evidence that US intelligence had been ordered three times by a US judge to give us, but never would have voluntarily handed over themselves.
“US judges routinely deal with intelligence material. In Reprieve’s Guantánamo cases, US judges have repeatedly ordered the government to give over exculpatory evidence – whatever the source is – and they decide what goes into their judgments. There is thus no guarantee that Britain’s (or indeed anyone else’s) intelligence won’t come out in an American judgment. That is the essence of the rule of law.
“Let’s be frank about what is happening here: MI5 and MI6 are leaning on Parliament (partly on behalf of the CIA, but mainly to shield themselves from liability) to hobble British judges in a way that American judges are not and never would be. Let us hope the pride of Britons in their justice system is not so feeble.”
Notes to editors
1. The report can be found on Reprieve's website. For further information, please contact Donald Campbell or Katherine O'Shea in Reprieve's press office: 0207 427 1082 / 1099
2. Background on the Green Paper on Justice and Security can be found here.
3. 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.