The British Government was dealt a stunning defeat yesterday by a Court of Appeal decision rejecting tenacious arguments of state secrecy. The court forced the publication of a seven-paragraph summary of the torture of Binyam Mohamed, a former Guantánamo prisoner held in CIA custody. British officials led by Foreign Secretary David Miliband had argued that the information, furnished by the CIA, had to be kept secret out of deference to American concerns. The argument was undermined when the gist of the information was published in a U.S. court opinion that also concluded that the prisoner had been tortured, and the British appeals court affirmed the “fundamental importance” of “democratic accountability and ultimately the rule of law itself.” It made clear its view that the conduct in question was clearly unlawful, “at the very least cruel, inhuman and degrading treatment by the United States authorities.” It also identified the specific torture techniques that were used on Binyam Mohamed, including sleep deprivation and measures designed to build anxiety. In a formalistic bow to the British Government, the Foreign and Commonwealth Office was permitted to publish the passage first so that it could assert publication was its own decision. The decision is a landmark defeat for the British government, marking a turn in judicial doctrine that had up to this point been extremely accommodating to government views about secrecy. Here is the suppressed passage of the court opinion:
It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 as part of a new strategy designed by an expert interviewer.
v) It was reported that at some stage during that further interview process by the United States authorities, BM [Binyam Mohamed] had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.
vi) 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.
vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews
viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the inter views were having a marked effect upon him and causing him significant mental stress and suffering.
ix) We regret to have to conclude that the reports provide to the SyS [British intelligence agency] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.
x) The treatment reported, if 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 readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities
The decision thus constitutes an indirect conclusion by the British High Court that the CIA illegally tortured a British protected person, and a conclusion that the techniques used, while approved by the U.S. Justice Department, were clearly unlawful, and potentially criminal. In response to direct pressure from the court, the Crown Prosecution Service has opened a criminal investigation into the matter.
Clive Stafford Smith, who represented Binyam Mohamed, noted that these observations were fairly innocuous. The far more brutal abuse of his client occurred in the torture-by-proxy system run by the CIA in Morocco, in which his genitals were slashed, among other things. Stafford Smith stated:
Our Government went to enormous lengths to prevent the British public from seeing this tiny fraction of Binyam’s story. They still refuse to admit that he was abused. Today’s decision is very welcome, but the paragraphs revealed are only the tip of the iceberg when it comes to British complicity in torture – much more is to come. Today’s judgment shows that our government’s attempts to hide shameful secrets behind ‘national security’ arguments are misguided and doomed to fail.
The British Court of Appeal also sharply attacked the nation’s intelligence service for disseminating false statements concerning the treatment of Mohamed. The Guardian reports:
the judges originally ruled that MI5 officers had “deliberately misled” the Intelligence and Security Committee, the body of MPs and peers supposed to oversee its work, on the question of coercive interrogations, and that this “culture of suppression” reflected its dealings with the committee, the foreign secretary and the court. Finally, the letter makes clear that the court ruled MI5’s culture of suppression “penetrates the service to such a degree” that it undermines any government assurance based upon information that comes from MI5 itself.
In another startling disclosure, it was learned that the Court was improperly pressured through ex parte contacts to modify its findings by Jonathan Sumption, a lawyer acting on behalf of Miliband. Sumption was subjected to bruising criticism from the court over his conduct. Sir Igor Judge, the Lord Chief Justice, responded to Sumption’s criticisms of the court rulings by stating that, “No advantage is achieved by bandying deprecatory epithets.” The court also released Sumption’s letter, which in turn disclosed the original ruling. The Guardian summarized:
In his letter, Sumption warned the judges that the criticism of MI5 would be seen by the public as statements by the court that the agency:
• Did not respect human rights.
• Had not renounced participation in “coercive interrogation” techniques.
• Deliberately misled MPs and peers on the intelligence and security committee, who are supposed to scrutinise its work.
• Had a “culture of suppression” in its dealings with Miliband and the court.
Sumption described Neuberger’s observations in his draft judgment as “an exceptionally damaging criticism of the good faith of the Security Service as a whole.”
Sumption argued that the court was attributing the attitudes and misconduct of one particular MI5 agent, described in court papers as “Witness B,” to the service as a whole. Sumption’s letter can be examined here.