Trial and error
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5 March 2014
In the case of ex-Guantanámo prisoner Binyam Mohamed, the Government could learn a lot from the actions of the judges that it opposes, says Clare Algar
The Lawyer readers will have seen that there has been a further judgment in the ongoing case of Reprieve client and British resident, Binyam Mohamed.
Last Friday, Lord Thomas and Lord Justice Lloyd Jones stated that seven redacted paragraphs of their initial judgment should be made public. The paragraphs relate to CIA documents passed to MI5, relating to Binyam’s “treatment”. The judges said that the public interest in making the paragraphs public was “overwhelming”.
The paragraphs were initially redacted because the British government said that if the paragraphs were made public, British national security would be jeopardised, as the publication would cause the US to suspend its intelligence-sharing ties with the UK.
The intelligence-sharing relationship was first threatened by the CIA under the Bush administration and the Court asked the Foreign Secretary to go back to the Obama administration and ascertain whether the threat still existed.
On 30 April 2009, the CIA wrote a letter, which was produced in evidence which stated that “public disclosure could be reasonably be expected to cause serious damage to the UK’s national security. Specifically, disclosure of this information may result in a constriction of the UK - US relationship”. The Secretary of State, David Miliband, relied on this in stating that the paragraphs should not be disclosed by the Court.
In a very strong judgment, the judges rejected Mr Miliband’s position outright, saying “we cannot accept, looking at the matter objectively on all the evidence…and as a matter of reality, that there is a real risk that the US would reassess its intelligence relationship or reduce its intelligence sharing if we made the seven paragraphs public”. They said that the letter had been very carefully written and that ‘could’ did not mean ‘would’ – they concluded that the letter did not contain a threat.
The idea that Obama would really cut off security and intelligence co-operation, risking British people dying in terrorist attacks is fanciful. Indeed, we wrote to Hillary Clinton, asking her to confirm that she was seriously going to order CIA to cut off co-operation. She did not respond to us, I believe, because she is not really making that threat.
The judges want to publish the seven paragraphs. In response, Mr Miliband has said that he is “deeply disappointed” and that he will appeal the decision. If he does so, he will be saying that English Court has no right to decide what information is necessary to disclose in the public interest. If this is right, we will have become an American client state, and the rule of law will no longer exist.
Reprieve initially sought these documents to defend Binyam in his unfair military commission process, whilst he was still incarcerated in Guantanámo Bay. Binyam was released in February this year and all charges against him were dropped. The case is continuing now because the judges were so unsettled by what they saw in the litigation that they invited the press to intervene and make a disclosure application, so that the public could see these facts. Mr Miliband should stop trying to prevent this disclosure - torturers are war criminals, no matter how powerful. It is no part of the government’s role to engage in a cover up for them.
Clare Algar is the executive director of the charity Reprieve