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Britain’s High Court issued a decision on Friday directing that classified information shared by the CIA with British intelligence services concerning the torture and mistreatment of a former Guantánamo prisoner be made public. The case involves a 31-year-old Ethiopian, Binyam Mohamed, who was seized and held in the CIA’s extraordinary renditions program in Pakistan and Morocco before his transfer to the prison at Guantánamo. He was charged with conspiracy, with the charges apparently resting on statements by Abu Zubaydah, a prisoner now acknowledged to have been tortured by U.S. government officials. In October 2008, the Bush Administration withdrew the charges against Binyam Mohamed and started the process leading to his repatriation to Britain.
In British court proceedings, Binyam Mohamed described his gruesome torture following his seizure by the CIA and movement within its renditions system. He recounted how his penis was slashed with a scalpel by torturers in Morocco, and he noted the presence of British and American intelligence personnel throughout the process. In defending the process, the British Government was forced to acknowledge that it held intelligence reports from the American CIA that corroborated Binyam Mohamed’s accounts of torture. However, Foreign Secretary David Miliband strenuously objected to disclosure of this information, pointing to the “special relationship” between U.S. and U.K. intelligence services and Britain’s commitment not to disclose classified information secured from American counterparts without their permission. Miliband pointed to communications with the U.S. State Department noting that disclosure of the information would harm U.S. relations with British intelligence.
In their decision on Friday, however, two senior judges of the High Court rejected Miliband’s position, concluding that the public interest in the rule of law required full vetting of the evidence of torture, and that this outweighed any interest in keeping the CIA’s secrets.
The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law, Championing the rule of law, not subordinating it, is the cornerstone of democracy.
In rendering their decision, the High Court carefully reviewed the actual statements made by American officials, including Secretary of State Hillary Clinton, to their British counterparts, and concluded that the suggestion that the relationship would actually be damaged by disclosure was doubtful. They also noted and relied upon a statement made by Morton Halperin, a former senior Defense and State Department official, who expressed the view that disclosure would have no meaningful consequences.
The High Court appears to have correctly inferred that the Obama Administration was at best divided on the question. In fact, key figures in the Obama Administration advocated disclosing the information about Binyam Mohamed. A State Department source, speaking on condition of anonymity, advised me that the State Department had recommended that the dispute be resolved by declassifying and disseminating the CIA reports on Binyam Mohamed that were the subject of the British litigation. The CIA “rigidly refused,” according to the source, insisting that the step would establish a “bad precedent” with respect to dealings with British intelligence. The White House allowed the CIA to make the ultimate decision on the matter, while expressing reservations about the wisdom of the approach it was adopting, according to the source.
What is the basis for the CIA’s concerns? It’s probably the case that the disclosure through litigation of material shared between the intelligence partners would set a bad precedent for the “special relationship.” However, key CIA decision-makers have a more immediate concern. The information will implicate CIA officials in conduct that the High Court itself appears prepared to label as criminal mischief, at a time when a special prosecutor appointed by Attorney General Eric Holder is completing a preliminary review of allegations of criminal wrongdoing connected with the renditions program. The CIA is intensely eager to squelch the criminal probe, and leading CIA figures who were implicated in the renditions program, such as Stephen R. Kappes and Michael J. Sulick, have a great deal at stake. A criminal investigation into the treatment of Binyam Mohamed has also been launched in Britain.
Foreign Secretary Miliband has announced that he will take an appeal from the decision and will seek a stay of disclosure of the information pending appeal.
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."