The story of the seven paragraphs reveals just how far the ‘war on terror’ has corrupted and distorted ministers’ perception of the public interest.
On 10 February 2010, the Court of Appeal overruled the Foreign Secretary’s attempt to keep secret seven paragraphs summarising the British authorities’ awareness of a UK-resident Muslim’s subjection to cruel and degrading treatment while being held incommunicado in US custody, at a time when British intelligence officers were involved in his questioning. What the saga reveals is the depth of complicity of the US and UK authorities in using ‘public interest immunity’ to cover up anything likely to embarrass either government.
The story started in 2008, when Binyam Mohamed, then incarcerated in Guantanamo and facing terrorism charges for which he faced a real risk of execution if convicted, applied to the British courts for documents sent by the US intelligence agencies to their British counterparts, which he claimed would reveal that his confessions were made following severe torture while in US custody. He also alleged that British intelligence agents provided questions and information to the US interrogators, so becoming complicit in his ill-treatment which took place in Pakistan in 2002. He needed the confidential intelligence reports to assist him in defending himself against the terrorism allegations, since the use in evidence of confessions made as a result of torture is outlawed by the UN Convention Against Torture.
The High Court upheld his request, and in its judgment summarised in seven paragraphs the material which corroborated his allegations. Immediately, the Foreign Secretary appealed against the judgment and simultaneously issued a public interest immunity certificate claiming that publication of these seven paragraphs would lead to a real risk of serious harm to the national security of the UK. While the appeal was pending, the offending paragraphs were kept secret.
The Foreign Secretary’s argument was in a sense quite simple: The US agencies gave us this material about how they treated Mohamed in confidence, as part of our intelligence-sharing, they said. If we allow it to be made public, they won’t share vital intelligence with us and we’ll be more vulnerable to terrorist attack.
The court’s response was equally simple: Why should Binyam Mohamed and the community at large be denied the benefit of knowing that his allegations had been vindicated by official US documents? And why should he know less about the court’s decision than the intelligence services which were involved in facilitating the wrongdoing of which he was a victim? The mutual protection of allies’ secrets did not automatically take precedence over principles of open justice, and it was for the courts, not the government, to judge the legitimacy of any claim for confidentiality by reference to the material for which secrecy was sought.
Their publication by the Court of Appeal completely vindicates Mohamed. The paragraphs demonstrate that his allegations of ill-treatment in US custody are supported by official documents, denial of access to which would have prevented him from proving the ill-treatment in the US court. The Court accepted that this in turn would have meant a real risk of conviction and execution as a terrorist.
Meanwhile, in November 2009, the US court obtained the relevant material, and having looked at it, accepted Mohamed’s allegations as true. The US court said this: ‘[Mr Mohamed’s] trauma lasted for 2 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 … even though the identity of the individual interrogator changed (from nameless Pakistanis, to Moroccans, to Americans) … there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States …The court finds that [Mr Mohamed’s] will was overborne by his lengthy prior torture, and therefore his confessions … do not represent reliable evidence to detain petitioner’.
The US court also held that the evidence it saw ‘vindicated 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’.
The Foreign Secretary’s conduct in issuing the public interest immunity certificate to keep the evidence secret demonstrates that preventing embarrassment was more of a priority than allowing a man to defend himself. The courts’ judgments show clearly that British intelligence agents knew of Mohamed’s continuing ill-treatment (including sleep deprivation, intimidation and physical restraint), and of his suicidal state, when they told him that they would not help him unless he co-operated fully with his US interrogators – and they supplied those interrogators with information and questions.
Two months earlier, in early December 2009, David Hanson MP, minister of state for security, counter-terrorism and policing, was to be seen wriggling and squirming as he tried to avoid answering questions set by the Joint Committee on Human Rights on the definition of ‘complicity’ in just this context. The uncorrected transcript of Hanson’s questioning by the Committee is important for the failure of the minister to clarify what is off limits when it comes to intelligence co-operation with torturing states. The Committee asked Hanson whether asking a foreign government known to use torture to detain and question an individual amounted to complicity in torture. He declined to answer the question. They asked whether providing information to such a government which enabled them to apprehend an individual was complicity; or whether giving questions to a foreign intelligence service to put to a detainee who has been, is being or is likely to be tortured amounted to complicity; or having intelligence personnel present at an interview with a detainee in a place where he is being or might have been tortured. In no case did Hanson give an answer to the question.
Human rights committee snubbed
Worse, the director of MI5, who is on record as advocating the use of intelligence obtained under torture if necessary to protect the public from terrorist attack, declined to attend the Committee to be questioned, while at the same time accepting an invitation from the Society of Newspaper Editors to speak and answer questions about the terrorist threat. Both the Foreign Secretary and the Home Secretary also declined to appear before the Joint Committee.
Read the Uncorrected Oral Evidence given by Rt Hon David Hanson MP here