It is a strange thing that the citizens of Australia, the United Kingdom and the United States go about pretending that their governments have not been involved in practices that have more similarity to the Inquisition as conducted by Thomas of Torquemada in Spain than to the rule of law, our common inheritance from the common law and the great political battles in England of the 17th century.
Recently, litigation in the High Court of Justice in London has forced acknowledgement of UK involvement in rendition activities by the United States government.
It has also brought about promises from the United States administration that may go some way to allow one Guantánamo detainee, Binyam Mohamed (pic), a small chance to obtain justice.
Binyam is an Ethopian national but also a British resident.
In judgments handed down on August 21, 2008 and a week or so later on August 29, Binyam Mohamed has come closer to obtaining access to documents relating to his treatment in Morocco when he was held incommunicado and tortured.
Despite part of the judgments remaining closed and secret, the reasons that have been published, despite their restrained judicial language, go a long way to confirming Binyam’s claims and the worst fears held about United States’ actions and the UK’s involvement in “coercion”.
The Norwich Pharmacal doctrine
The attempt by Binyam’s lawyers to obtain access to documents in the United Kingdom to assist their conduct of an anticipated trial in the Military Commissions of Guantánamo Bay was based on an obscure doctrine used in equity cases chasing money trails through the thickets of Swiss bank accounts.
This is the Norwich Pharmacal doctrine.
In short, it allows information to be obtained from a person who has been “mixed up, no matter how innocently” in the wrong doing of another.
The information will often be crucial to allow the applicant to bring an action against the main wrong-doer.
The arguable case of torture
The court was spared having to make any finding on one important subject.
The Foreign Secretary accepted that there was an arguable case that Binyam had been rendered and tortured.
After Binyam was subjected to torture and cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the United States authorities.
While in Morocco, Binyam was held incommunicado and tortured by or on behalf of US authorities. His period in Morocco was approximately 18 months from July 2002 to January 2004.
He was again unlawfully rendered by the United States to Afghanistan where he was held incommunicado and further tortured or subject to cruel, inhuman or degrading treatment by or on behalf of the US authorities in the “Dark Prison”.
The interrogation in Pakistan, according to Binyam, was by US officials.
He was hung by a leather strap by his wrist so he could just stand. He was allowed to go to the toilet only twice a day. He was given food only every second day. He was threatened with being taken to Jordan where his treatment would be much worse. A British agent visited him and also warned that he would be taken to a place where the treatment would be much worse.
The torture in Morocco was carried out by people wearing masks.
It included severe beatings, sleep deprivation and cutting of his penis with a scalpel.
One of the interrogators, a Canadian woman, is alleged by Binyam’s lawyers to be a CIA agent.
These matters were not in dispute for the purpose of the case.
The United Kingdom involved
Among the findings that led the court to conclude that the United Kingdom government was mixed-up in the wrongdoing by the US officials, so as to make out the requirements of Norwich Pharmacal, were the following:
- The UK officials were aware that Binyam had been held incommunicado and had been refused a lawyer in Pakistan during which time he had been interrogated by US officials.
- In May 2002, the UK officials had become aware of the nature of the treatment of Binyam in Pakistan. The court saves the detail of this treatment for its closed judgment.
- Despite this knowledge, a UK agent travelled to Karachi in Pakistan and put pressure on Binyam by saying that he could only help him if he cooperated with US officials.
- After September, 2002, the UK officials knew that Binyam had been rendered to an unknown facility in a foreign country at the behest of the US and was being held incommunicado, without access to a lawyer and the US were receiving information from that process.
- Despite this knowledge of illegal conduct by the US (and the likelihood of mistreatment of Binyam), the UK officials continued to assist the interrogation by supplying information and potential questions.
The Foreign Secretary accepted that he held material that was potentially exculpatory of Binyam in respect of the allegations likely to be made against him by the Convening Authority under the US Military Commissions Act.
The charges likely to be brought against him may carry the death penalty.
The court found that the information contained in the material was essential if Binyam’s case is to be fairly considered by the Convening Authority and if he “is to have a fair trial of the very serious charges he faces, given the confessions made at Bagram and Guantánamo Bay after May 2004”.
The decision on Pharmacal
The Divisional Court found that relief should be granted. Lord Justice Thomas (pic) for the court said:
“Relief under Norwich Pharmacal principles is an exceptional remedy and its application to the present circumstances is unprecedented. We have carefully weighed all the circumstances and considered whether we should extend the relief to the claim made in this case. We have concluded, subject to issues of public interest immunity … that we will … order the provision of the … information.”
Public interest immunity
Despite the ruling of the court, the Foreign Secretary desperately sought to avoid disclosing the information, despite the fact that it provides support for Binyam’s claims that he had been rendered to and tortured in Morocco by the United States government.
The putative reason was that disclosure might harm the security cooperation between the United States (the torturing nation) and the United Kingdom.
At the same time, the carrot was being held out that the information might, at some stage, in some form, be made available as part of the disclosure processes in the Military Commissions.
A second Hearing – the State Department scrambles
By the time the court resumed on August 27, the United States authorities were scrambling.
On August 21 John Bellinger (pic), the legal adviser to the US State Department, wrote to UK authorities saying that the documents would be made available (with names of officials and locations of intelligence facilities redacted) to Susan Crawford, the Pentagon official who is the Convening Authority, if she asked for it.
Bellinger also said that the documents (also in a redacted form) would be provided to Binyam’s military counsel at the discovery stage of the Military Commission trial.
Shortly before the court sat on August 27, another missive from the State Department’s lawyer became available.
As if by magic, the legal adviser to the Convening Authority had requested and received the documents.
These would be supplied to Susan Crawford, with the legal advice whether or not to refer Binyam to a commission, and would be automatically (subject to a protective order due to their classified nature) available to the defence at the Military Commission process.
Despite what the court called a welcome and significant change on the part of the US government, Lord Justice Thomas held that the inability to have the documents for the purpose of making submissions to the Convening Authority about whether to refer the charges was the last remaining respect in which the changed position of the US authorities failed to satisfy the relief being sought by Binyam.
A relevant consideration: “torture ain’t nice”
The court, therefore, went on to consider the Foreign Secretary’s claim for public interest immunity concerning the documents.
It was held that the balancing exercise in the Foreign Secretary’s certificate failed to take into account an important consideration:
“The abhorrence and condemnation accorded torture and cruel, inhuman or degrading treatment.”
While the Foreign Secretary argued that it had been taken into account (just not mentioned) the court was having none of it.
It set aside the certificate but gave the Foreign Secretary a week to come back with a certificate that actually mentioned the “the abhorrence and condemnation accorded torture and cruel, inhuman or degrading treatment”.
The seven days given to the Foreign Secretary have clearly passed.
There have been no further reports as to the Foreign Secretary’s new public interest immunity certificate. Perhaps Bellinger has put pen to paper with an improved offer: “We can give you the documents now, after all.”
What is certain is that the abomination that is Guantánamo Bay continues despite nearly six years since its first inmates arrived.
Other secret prisons, no doubt, continue around the world.
The sanitation of strong sunlight can do no harm. Thankfully, the judgements of Lord Justice Thomas and Justice Lloyd Jones have provided a few more rays upon the ugly practice of rendition.
Stephen Keim SC