Last month the Court of Appeal for England and Wales gave judgment in the litigation involving former Guantánamo resident, Binyam Mohamed (pic).
In doing so it upheld the decision of the divisional court to lift the redaction of seven paragraphs that originally formed part of an open judgment delivered on August 21, 2008.
For much of the 18 months since the judgment was delivered these paragraphs have been the subject of litigation as to whether they should be made public.
Binyam Mohamed, who has British residency status, was detained at Guantánamo Bay for nearly seven years.
In 2008, the US government was preparing to bring charges against him in the Military Commissions, which potentially carried the death penalty.
In an attempt to obtain information and documents that would confirm his allegations that he had been tortured in 2002 while detained in Pakistan, Morocco and Jordan by or at the behest of US officials, Mohamed brought proceedings in the UK to obtain disclosure of documents in the possession of the UK government.
The litigation relied on the principle in Norwich Pharmacal v Customs and Excise Commissioners  AC 133.
The effect of that principle is that a party involved (even innocently) in wrongdoing against another by a third party can be forced to disclose information that would assist the injured party to seek redress against the major wrong doer.
The principle was upheld in the open judgment of August 21, 2008 although actual provision of documents was subject to the determination of specific claims of public interest immunity.
The litigation was successful in as much as the US authorities started making parts of the disputed documents available to Binyam Mohamed’s US lawyers.
The US dropped the charges against him without prejudice to bringing fresh charges.
Further charges were not forthcoming and on February 23 last year he was released and allowed to return to the UK.
Intelligence services have a wonderful strategic advantage when it comes to the release of information obtained overseas, specially if it relates to wrongdoing by the services themselves. It’s known as the “control principle”.
Where information is supplied by one agency to an agency of another country it is done on the basis that the supplying agency retains control over the release of that information.
Using this principle, the receiving agency can, whenever release is threatened, rely on public interest immunity exemptions.
The agency puts its hand on its heart and dolefully intones that, of course, it would love to release this material but, those unreasonable Americans (or Algerians, Chinese, Jordanians or whoever it might be) are threatening to stop providing intelligence to us if this becomes public. How then can we protect the safety of the public?
In the Binyam case this was done by a series of certificates issued by the Foreign Secretary which stated, notwithstanding the changed administration in the US, any release of the seven paragraphs would lead to the US and other governments reviewing their intelligence sharing arrangements with the UK.
The Court of Appeal bench that decided the redacted paragraphs should be made public comprised the felicitously named, Maltese born, Lord Igor Judge, Lord Chief Justice of England and Wales; the Master of the Rolls, Lord Neuberger (pic); and the President of the Queen’s Bench Division, Sir Anthony May,
By the time they handed down their decision the situation had become quite ridiculous.
The nature of the allegations about torture and mistreatment already were known from the balance of the first open judgment.
There was no secret that US intelligence agencies provided information from and about their interrogation processes to the UK agencies. President Obama had released legal opinions justifying CIA enhanced methods of interrogation including the specific approved methods and ordered them not be used again.
Even the grounds argued for continuing the redaction of the paragraphs revealed information about what the paragraphs contained.
Still the Foreign Secretary, David Miliband (pic), on behalf of the Security Service and the Secret Intelligence Service, held out. They were prepared to die in a ditch over the seven redacted paragraphs.
Habeas corpus proceedings by Guantánamo inmates have been proceeding in the United States. In about 80 percent of these hearings judges are finding that the US government has no (and never had any) proper basis for detaining the applicants.
Rather cheekily, the US government based its case against Farhi on statements made by Binyam Mohamed.
Mohamed and his lawyers provided evidence of the mistreatment that he had sustained and that the evidence relied on against Farhi Saeed Bin Mohamed was false and was induced by that mistreatment.
The evidence of mistreatment of Binyam was not challenged by the US government.
In the Court of Appeal decision, Lord Judge LCJ quoted the following paragraphs from Judge Kessler’s findings:
”[Mr. Binyam’s] trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The government does not dispute this evidence.
In this case, even though the identity of the individual interrogator changed (from nameless Pakistanis, to Moroccans, to Americans, and to special agent [the identity is redacted]), there is no doubt that throughout his ordeal Binyam Mohamed was being held at the behest of the United States … the court finds that [Binyam Mohamed’s] will was overborne by his lengthy prior torture, and therefore his confessions to special agent do not represent reliable evidence to detain [Farhi].”
Despite these vivid and express findings by Judge Kessler, the US and UK security agencies still sought to keep the redacted paragraphs under wraps.
The Court of Appeal was having nothing of it.
The appeal judges ordered, unanimously, that the Foreign Secretary’s appeal be dismissed and included the paragraphs as a schedule to their judgment for the whole world to read.
As so often happens in the case of documents the government has fought long and hard to keep secret, when they emerge into daylight one wonders what all the fuss was about.
Since the fuss has gone on for 18 months it might be worth knowing just what it was all about.
Here are the seven bitterly fought-over paragraphs:
“It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.
It was reported that at some stage during that further interview process by the United States authorities, [Binyam] had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.
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.
It was reported that the stress brought about by these deliberate tactics was increased by him being shackled during his interviews.
It was clear not only from the reports of the contents 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 significant mental stress and suffering.
We regret to have to conclude that the reports provided to the [Security Service] made clear to anyone reading them that [Binyam] was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.
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. Although it is not necessary for us to categorise the treatment reported, it could easily be contended to be at the least cruel, inhuman and degrading treatment of [Binyam] by the United States authorities.”
Despite receiving those reports, the UK agencies provided factual material that the US could and did use in their interrogations.
The UK also sent an agent who not only failed to assist Binyam Mohamed but spoke to him in a way that increased the pressure on him in his powerless position.
However, the censoring didn’t stop with the Court of Appeal’s findings last month.
It was subsequently discovered that Jonathan Sumption QC, for the British government, had written to the court after seeing a draft of the judgments, to persuade them to remove a paragraph that gave damning details of MI5’s complicity in the torture of Mohamed.
Sumption (seen here) argued that the paragraph would be, “likely to receive more public attention than any other parts of the judgments”.
The Master of the Rolls, Lord Neuberger, consulted with the Lord Chief Justice and decided to amend the relevant section “quite significantly”.
On February 27, following representations from the media, the appeal judges released the contested paragraph of Lord Neuberger’s judgment.
The Master of the Rolls questioned MI5 officials frankness and the reliability of their evidence.
The paragraph reads:
168. “Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that ‘they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training’ (paragraph 9 of the first judgment), indeed they ‘denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government’ (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.”
Claims against MI5 and MI6 by Binyam Mohamed and five others are expected to reach £30 million in compensation and legal costs.