News In Focus
11 February 2010
Release of "torture" intelligence in public interest, judges rule
Britain's Foreign Secretary has lost his appeal against a judicial ruling that intelligence information relating to allegations of torture of a UK resident by United States authorities should be published.
David Miliband had attempted to prevent the release of the information relating to Binyam Mohamed because of a "fundamental" principle that intelligence shared with the UK should be protected. In a statement to the House of Commons following the ruling, he said the decision was causing a "great deal of concern" in the USA.
However the three senior Court of Appeal judges – the Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger, and President of the Queen's Bench Division Sir Anthony May – ruled that the case did not involve secret material damaging to the national interest.
Mr Mohamed was arrested in Pakistan in April 2002 on suspicion of plotting and fighting for the Taleban. He alleges that he was tortured by the Pakistani authorities before being handed over to US agents, flown to Morocco on a "rendition" flight and subjected to further torture. In September 2004 he was taken to Guantanamo Bay where he remained for another four years. He was then charged, but the charges were dropped as the procedure involved was condemned as unconstitutional by the US Supreme Court.
He is now attempting to prove that British authorities helped facilitate his detention and knew of his treatment in Pakistan.
His legal team had argued that disclosure of the material was in the public interest and that the British Government was seeking to suppress "embarrassing and shaming" evidence of British involvement in torture.
"Cruel, inhuman and degrading treatment"
The paragraphs, published on the Foreign Office website following the ruling, state "it was reported" that Mr Mohamed was subjected to continuous sleep deprivation, together with threats and inducements; that he was shackled during interviews; that the interviews were causing him significant mental stress and suffering; that the treatment would have been in breach of undertakings given by the UK if carried out in this country; and that "it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities".
In his judgment the Lord Chief Justice said: "Nothing in this judgment should be seen as devaluing the confidentiality principle, and the understanding on which intelligence information is shared between this country and the USA."
Lord Judge commented that the seven redacted paragraphs in question would not reveal information which would be of interest to a terrorist or criminal or provide "any potential material of value to a terrorist or a criminal", adding: "Indeed, it seems right to emphasise that the publication of the redacted paragraphs would not and could not, of itself, do the slightest damage to the public interest."
He pointed out that there was no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities, which had been established by judicial processes within the USA itself.
If redaction of the paragraphs was maintained, Mr Mohamed "will know less about the reasons for the court's decision than the intelligence services which, even if innocently, were involved in or facilitated the wrongdoing of which he was the victim".
"Compelling" arguments
Lord Judge said that while, if they contained genuinely secret material, the disclosure of which would of itself damage the national interest, his conclusion might be different, "In my view, the arguments in favour of publication of the redacted paragraphs are compelling."
Unless the control principle was to be treated as if it were absolute, "it is hard to conceive of a clearer case for its disapplication than a judgment in which its application would partially conceal the full reasons why the court concluded that those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture.
"Such a case engages concepts of democratic accountability and, ultimately, the rule of law itself."
Lord Neuberger said he had been persuaded to refuse the appeal having read the opinion of a US judge in a case by another Guantanamo Bay detainee in which Mr Mohamed had given evidence. "The effect of that opinion is that, in proceedings in which one of the parties was the US Government, a US judge has found as a fact in an open judgment that Mr Mohamed's evidence as to the mistreatment he suffered at the behest of US officials in Pakistan (and indeed in Morocco and Afghanistan) was true. It is therefore now in the public domain, as a fact found by a US court in proceedings in which the US Government was a party, that he was mistreated, indeed tortured, in the ways in which he has described".
He added: "Whatever may have been the position before the opinion was published, details of Mr Mohamed's mistreatment, and their effect on him, as have been publicly recorded by Judge Kessler, and cannot be said any longer to be in any way confidential information, or information which is somehow in the control of the US Government."
Sir Anthony May agreed that "the decision of the US District Court shifts the already fine balance in this case against the exclusion of the seven subparagraphs".
A White House spokesman expressed "deep disappointment" at the ruling and said it would "complicate" intelligence sharing with the UK.
However media and civil liberties groups called the decision a "resounding victory" for freedom of speech.
Click here to view the Court of Appeal judgment.