Editors Blog
Rule of law wins in the end
11 Feb 10
Public interest trumps government relations in Mohamed case
"Such a case engages concepts of democratic accountability and, ultimately, the rule of law itself."
So declared the Lord Chief Justice, Lord Judge, yesterday in refusing Foreign Secretary David Miliband's appeal against the ruling that former Guantanamo Bay detainee Binyam Mohamed should be allowed to see an intelligence report supporting his allegations that he had been tortured by Pakistani and US authorities before being sent to the detention camp. (See our news report here.)
Having read (as just about everyone else in the country probably has by now) the seven paragraphs that were the subject of all the fuss – they all concern the treatment of Mr Mohamed personally in the hands of the Americans – I have to say I am both glad that they are out in the open and surprised that they should have been thought to give rise to issues of national security.
Clearly Mr Miliband took his stand on the "fundamental" rule that no disclosure of any information received from foreign government intelligence sources should take place, lest it imperil such information sharing for the future. And two at least of the judges might have backed him but for the fact that there was in the public domain a judgment from a US judge, in proceedings contested by the US Government, holding as credible evidence given by Mr Mohamed himself.
One never knows in these cases to what extent governments are simply seeking to cover their own embarrassment and to what extent the dire warnings being uttered about future co-operation will be borne out in practice. Even on this decision, it can be predicted that overruling a ministerial certificate is something that the courts will agree to only in exceptional cases.
However, for the moment supporters of the rule of law can be glad that another little prop has been removed from the two governments' ability to hide behind supposed considerations of national security in covering up the shameful treatment of Taleban suspects that took place after the 11 September attacks, treatment that, particularly in the case of the USA, seriously and perhaps fatally undermined the claim to be the international community's defenders of freedom against oppression.
As Lord Judge emphasised, "the publication of the redacted paragraphs would not and could not, of itself, do the slightest damage to the public interest". And the confidentiality principle had been upheld in the context of "huge" quantities of evidence heard in earlier proceedings. So let us hope that both governments will keep this decision in perspective, while at the same time taking to heart the lessons, for their peoples' sakes as individuals and collectively, for the better observance of basic human rights.