In one short session, the Court of Appeal brought an end to a transatlantic game of cat and mouse that for the last year and a half has prevented two High Court judges from making public a seven-paragraph summary of an intelligence briefing, supplied by the US intelligence services to their British counterparts, which provided information about Mohamed’s treatment after his capture in Pakistan in April 2002.
Disclosure of the summary, which was written by the High Court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, had been opposed by the British foreign secretary, David Miliband, since August 2008, when the judges delivered a stern rebuke to the British government, ruling that, “by seeking to interview BM [Binyam Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.” However, Miliband argued that releasing any information publicly would damage the valuable intelligence sharing relationship between the UK and the US, and the judges, with some reluctance, accepted his claims.
However, the judges ordered 42 documents in the possession of the British government to be released to Mohamed’s lawyers, on the basis that they were vital to his defense in a planned trial by Military Commission, in which he might face the death penalty. In the months that followed, further wrangling over the disclosure of these documents was transferred to the US courts, where the Justice Department tried in vain to keep them away from Mohamed’s legal representatives.
By November 2008, however, these last-ditch attempts had failed, and, as a result, the central allegation against Mohamed – that he was involved in a “dirty bomb” plot (noticeably, one that never existed) – was dropped by the Justice Department, his planned trial by Military Commission was also dropped, and on February 23, 2009, he was flown back to the UK as a free man.
The manner in which Mohamed’s case was fast-tracked to the top of the pile of cases being reviewed by President Obama’s interagency Guantánamo Review Task Force strongly suggests that both the US and UK governments hoped that releasing Mohamed would seal the lid on further embarrassing disclosures about his torture – not only in Pakistan, but also in Morocco, where he was sent by the CIA for 18 months, and in the CIA’s own “Dark Prison” near Kabul.
However, instead of backing down, the High Court judges refused to let go of the case, arguing that, although it was appropriate for the contents of the 42 documents to remain secret, it was in the interests of “open justice” for their own summary of those documents to be made available to the public.
David Miliband disagreed, maintaining, as he had in August 2008, that releasing the summary would threaten the intelligence-sharing relationship between the US and the UK, with dire consequences for national security, even though the judges maintained that their summary contained “nothing secret or of an intelligence nature,” as it merely comprised “admissions by officials of the United States Government as to BM’s [Mohamed’s] treatment by them.”
Throughout 2009, the case rumbled on, as the judges maintained pressure on the government, and in November, the most revealing information to date was disclosed, when two previously redacted paragraphs in an earlier ruling were reinstated. These, as I noted at the time, were extremely significant, because they revealed that the judges had referred to the memos released by the Obama administration last April, written by lawyers in the Justice Department’s Office of Legal Counsel in 2002 and 2005, which purported to redefine torture and approved the use of banned techniques by the CIA.
The judges had also noted that “the techniques described were those employed against [Abu] Zubaydah,” the supposed “high-value detainee,” captured in Pakistan on March 28, 2002, who was, officially, the first prisoner to be subjected to ten “enhanced interrogation techniques,” which included physical violence, stress positions, sleep deprivation, and waterboarding.
The Court of Appeal judges order the release of the torture summary
On Wednesday, after 18 months of obstruction on the part of the government, the judges in the Court of Appeal – Sir Igor Judge, the Lord Chief Justice; Lord Neuberger, the Master of the Rolls; and Sir Anthony May, President of the Queen’s Bench – finally dismissed Miliband’s claims, and, as the Guardian described it, “shattered the convention that the courts should not question claims by the executive relating to national security.”
In the ruling, Sir Igor Judge said that the case raised issues of “fundamental importance,” of “democratic accountability and ultimately the rule of law itself.” He added that the reasons for publishing the summary were “compelling,” because they concerned the involvement of British agents in the “abhorrent practice of torture,” and because the information contained in the summary helped to “vindicate Mr. Mohamed’s assertion that UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of USA authorities.”
Finally accepting defeat, Miliband made the summary available on the website of the Foreign and Commonwealth Office. The seven paragraphs are reproduced below:
It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May  as part of a new strategy designed by an expert interviewer.
v) It was reported that at some stage during that further interview process by the United States authorities, BM [Binyam Mohamed] 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 interviews 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 [the British intelligence services] 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 it 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 [in the 1972 torture convention]. 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.
As can be seen, the summary describes a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”
The evidence demonstrates that torture began before it was sanctioned by the Justice Department in August 2002
That such tactics were being used by US agents in April 2002, four months before the ten previously banned techniques – including sleep deprivation and waterboarding – were approved by lawyers in the Office of Legal Counsel, should come as no surprise. As I pointed out in an article last April, “CIA Torture Began In Afghanistan 8 Months Before DoJ Approval,” lawyers for Rafiq Alhami, a Tunisian prisoner in Guantánamo, demonstrated in court submissions that the CIA was torturing prisoners in Afghanistan from December 2001.
In a lawsuit, Alhami stated that he was held in three CIA “dark sites,” where “his presence and his existence were unknown to everyone except his United States detainers,” and where, at various times, he was “stripped naked, threatened with dogs, shackled in painful stress positions for hours, punched, kicked and exposed to extremes of heat and cold.” He also stated that his interrogators “sprayed pepper spray on his hemorrhoids, causing extreme pain.”
Nevertheless, Alhami’s statements, which reflect similar statements made by other prisoners held in secret CIA prisons at this time, were largely ignored last April, and it is to be hoped, therefore, that the official confirmation of Binyam Mohamed’s torture in April and May 2002 will put pressure on Attorney General Eric Holder to investigate how it came to pass that prisoners were tortured – or, at least, subjected to cruel, inhuman and degrading treatment – so many months before the OLC provided what senior Bush officials referred to as their “golden shield,” providing a twisted rationale for the torture and abuse that followed in the memos issued on August 1, 2002.
According to a recent article in Newsweek, the conclusions of a long-awaited internal report into the behavior of the OLC lawyers who drafted the “torture memos” – conducted by the Office of Professional Responsibility (OPR) – have been fatally watered down in the report’s final version, so that the primary authors, John Yoo and Jay S. Bybee, are no longer regarded as having “violated their professional obligations as lawyers” when they drafted the memos, and have only been mildly reprimanded for showing “poor judgment.”
Even if this is the case, however, it fails to explain who was responsible for authorizing the infliction of cruel, inhuman and degrading treatment before August 1, 2002, and this is a question that needs to be answered. As Marcy Wheeler explained on Firedoglake:
[The] abuse was inflicted by “an expert interviewer” implementing “a new strategy.” That “expert interviewer” and that “new strategy” almost certainly were associated with [James] Mitchell and [John “Bruce”] Jessen [the psychologist facilitators of a torture program based on reverse-engineering the military’s SERE program, which teaches US personnel to resist torture by subjecting them to banned techniques], who were at that moment pitching using their “new strategy” with Abu Zubaydah. So this is not just proof that the US was engaging in torture before they got their … memo authorizing such torture. But it was proof that they were using Mohamed, in addition to Abu Zubaydah, as guinea pigs to test out that torture.
How Binyam Mohamed’s torture was revealed in a US court
Further disturbing evidence of the use of torture emerged through close scrutiny of a statement issued by David Miliband in the wake of the ruling by the Court of Appeal. Miliband noted that “At the heart of this case was the principle that if a country shares intelligence with another, that country must agree before its intelligence is released,” and that “This ‘control principle’ is essential to the intelligence relationship between Britain and the US.”
With some satisfaction, he added that the government had “fought the case to preserve this principle,” and that “today’s judgment upholds it,” explaining that the court only ordered the release of the summary “because in its view their substance had been put into the public domain by a decision of a US court in another case,” and that “Without that disclosure, it is clear that the court of appeal would have overturned the divisional court’s decision to publish the material.”
This is an accurate assessment, although it glosses over the importance of the material that “had been put into the public domain by a decision of a US court in another case.” The case in question was the successful habeas corpus petition, in November 2009, of an Algerian prisoner in Guantánamo, Farhi Saeed bin Mohammed. In her ruling, made available in December (PDF), Judge Gladys Kessler expressed serious doubts about the reliability of allegations made by other prisoners, as she had in previous cases, and as the judges in general have throughout the habeas process. These doubts have contributing significantly to the 32 out of 41 rulings that have resulted in the judges concluding that the government failed, by a preponderance of evidence, to establish that the prisoners in questions were involved with either al-Qaeda or the Taliban.
In the case of Farhi Saeed bin Mohammed, one of the dubious witnesses identified by Judge Kessler was Binyam Mohamed. As she described it, Mohamed’s statements, placing bin Mohammed at a training camp in Afghanistan,
cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner [bin Mohammed] argues that while Binyam Mohamed was detained in locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit to a host of allegations. When he arrived at Guantánamo Bay, Binyam Mohamed implicated Petitioner in training activities … However, after being released from Guantánamo Bay, he signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantánamo Bay, thereby disavowing the statements he made at Guantánamo Bay about training with Petitioner.
Judge Kessler also made some important points about torture, refuting the government’s claims that Mohamed had made statements voluntarily at Guantánamo, and concluding that the effects of the torture he endured from 2002 to 2004 had not dissipated by the time of the later statements. This is undoubtedly an important precedent for future cases, but with specific reference to Binyam’s court case in the UK, the significance of Judge Kessler’s ruling relates to the government’s refusal – or inability – to challenge the assertions made about Binyam Mohamed’s torture.
In response to bin Mohammed’s claims about Binyam Mohamed’s statements, Judge Kessler noted, “The Government does not challenge Petitioner’s evidence of Binyam Mohamed’s abuse,” and at another point, after running through the whole horrendous story of Mohamed’s abuse in Pakistan, Morocco and the “Dark Prison,” as recounted in statements to his lawyer, Clive Stafford Smith, she noted that “The Government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment.”
Further evidence of a British cover-up
It is somewhat ironic that information that the British government tried so hard to suppress was actually disclosed in greater detail in a judicial ruling in a US court, which made its protestations worthless, but this is not the last piece of shocking evidence to emerge from the Court of Appeal ruling.
Just hours after the ruling was announced, the Guardian reported that one of the judges, Lord Neuberger, the Master of the Rolls, had included in the ruling a statement regarding the behavior of the British security services that was so critical that Jonathan Sumption QC, representing the government, had written to the court, warning that the paragraph in question was “likely to receive more public attention than any other parts of the judgments.”
As referred to in Sumption’s letter, which came to light following intervention by lawyers and media organizations including the Guardian, Lord Neuberger’s statements included assertions that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, which is supposed to be able to scrutinize its activities, and had a “culture of suppression” in its dealings with Miliband and the court.
With reference to the MI5 officer known as Witness B, who interrogated Binyam Mohamed in Pakistan in May 2002 (and is now the subject of a police investigation), Neuberger apparently indicated that he did not believe that he was acting alone and that he believed that his conduct was “characteristic of the service as a whole,” and also noted that MI5’s culture of suppression “penetrates the service to such a degree” that, as the Guardian explained, “it undermines any government assurance based upon information that comes from MI5 itself.”
At the government’s request, Lord Neuberger dropped his comments from the final ruling, without advising any of the other parties involved in the case. However, after Sumption’s letter was disclosed, Lord Neuberger conceded that it was “over-hasty” to withdraw it without allowing other voices to be heard, and provided objectors with a deadline of 4 pm on Friday to make representations, to enable him to decide whether to reinstate his judgment.
Throughout this whole tawdry saga, Binyam Mohamed was not present, but it must come as some relief to him, after his long ordeal, to realize that, one year after his release, his torture by US agents in April 2002 will cause questions to be raised regarding the authorization of prolonged sleep deprivation and threats to make him “disappear,” and that the British security services face questions about their entire way of operating, in the wake of the 9/11 attacks, when the UK zealously embraced its role as America’s closest foreign ally.