UPDATE: Appeal judge watered down Binyam Mohamed torture ruling
The Guardian: Government persuaded Lord Neuberger to delete damning references to MI5 ‘culture’ of suppressing evidence
Binyam Mohamed torture evidence must be revealed, judges rule
The Guardian reports: “High court ruling compels British government to disclose what MI5 knew of refugee’s treatment in Guantánamo Bay.”
Three of Britain’s most senior judges have ordered the government to reveal evidence of MI5 complicity in the torture of British resident Binyam Mohamed – unanimously dismissing objections by David Miliband, the foreign secretary.
In a ruling that will cause deep anxiety among the security and intelligence agencies, they rejected Miliband’s claims, backed by the US government, that disclosure of a seven-paragraph summary of classified CIA information showing what British agents knew of Mohamed’s torture would threaten intelligence sharing between London and Washington, and therefore endanger Britain’s national security.
The judges – Sir Igor Judge, the lord chief justice; Lord Neuberger, the master of the rolls; and Sir Anthony May, president of the Queen’s Bench – shattered the convention that the courts should not question claims by the executive relating to national security.
In damning references to claims made by Miliband and his lawyers, and stressing the importance of the media in supporting the principle of open justice, they said the case raised issues of “fundamental importance”, of “democratic accountability and ultimately the rule of law itself”.
The disputed paragraphs have now been published by the Foreign Office.
The following is quoted from the first judgment of the Divisional Court in the Binyam Mohamed case on 21 August 2008. We have alerted the Court to a typographic error.
“The following seven paragraphs have been redacted
[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 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 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]”
Summary of the judgments given on 10 February 2010
The Queen on the application of Binyam Mohamed
– and –
The Secretary of State for Foreign and Commonwealth Affairs
- As the Lord Chief Justice explains, this appeal raises issues concerned with terrorism (paragraphs 10 to 13), torture (paragraphs 14 to 24), and open justice (paragraphs 37 to 42).
- The facts giving rise to this appeal are set out in paragraphs 25 to 33 of the judgment of the Lord Chief Justice, and are more fully set out in paragraphs 60 to 128 of the judgment of the Master of the Rolls, and paragraphs 210 to 259 of Sir Anthony May.
- The issue was whether, as the Foreign Secretary contended, seven short subparagraphs should be removed from the published version of a judgment, given by the High Court on 21 August 2008, on the ground that their publication would infringe the control principle (which is explained in paragraphs 43 to 47 of the judgment of the Lord Chief Justice).
- All three members of the Court of Appeal upheld the High Court’s decision, given on 16 October 2009, that the seven paragraphs should be published. The Lord Chief Justice’s reasons are in paragraphs 48 to 56; the Master of the Rolls’ reasons are summarised in paragraphs 136 to 141, and are given in more detail in paragraphs 142 to 203, and Sir Anthony May’s reasons are in paragraphs 265 to 295.
- In paragraphs 5, 6, and 51 the Lord Chief Justice deals with the suggestion made at the hearing that the High Court’s decision of 16 October 2009 was “irresponsible”, and the Master of the Rolls agrees with him at paragraph 205.
50. 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. It is clearly established that the publication of the redacted paragraphs will result in a review of these sharing arrangements. The review might or might not produce a change. There is a clear risk, and the Foreign Secretary believes, that any such review would culminate in new, and from the point of view of national security, disadvantageous arrangements. However that risk would be the inevitable concomitant of any occasion when the court decided to reject the claim to preserve confidentiality on public interest immunity grounds.
54. If it is not, the inevitable review would presumably reflect that the Foreign Secretary had done everything he lawfully could in the UK to prevent publication, as well as the considerations which led the court, exercising its independent jurisdiction, in large measure to uphold the confidentiality principle in the context of huge quantities of “secret” evidence in the closed judgment, and only after the most remarkably patient analysis of all the relevant considerations, to reject his PII applications. Presumably, too, the review would take into account the potential disadvantages to the battle against terrorism and the security of both countries if the intelligence sharing arrangements were reduced, and address the relationships between allies in a common cause, and with a common understanding of the possibility that it remained open to a court, whether in the UK or the USA, to refuse the PII application.
The appeal was advanced by Mr Jonathan Sumption QC on the basis that the Divisional Court’s decision was in many respects “unnecessary and profoundly damaging to the interests of this country”, and indeed that part of the reasoning of the Divisional Court was “irresponsible”.6.Like any other litigant, but no more than any other litigant, the Foreign Secretary, through counsel instructed on his behalf, was and remains entitled to advance robust submissions before this court, critical of the decision. The question for us is whether this appeal should be allowed. No advantage is achieved by bandying deprecatory epithets. Nevertheless at the very outset I shall record that even a cursory examination of the history of this litigation demonstrates the painstaking care with which the Divisional Court addressed the public interest arguments advanced by the Foreign Secretary. The approach of the Divisional Court to the questions requiring its decision represented an exemplary model of judicial patience. Even if at the end of the argument I had disagreed with the Divisional Court there can be no doubt that its judicial responsibilities were discharged with scrupulous regard to the many difficult questions to which the litigation gave rise and with a clear understanding of the potential significance of an order that the redacted paragraphs should be published.