Foreign Secretary David Miliband yesterday lost an Appeal Court bid to stop the disclosure of secret information relating to the torture of UK resident Binyam Mohamed.
The Court of Appeal ordered the publication of seven paragraphs of a High Court judgement summarising the UK authorities’ knowledge of Binyam Mohamed’s torture whilst in US custody.
It emerged yesterday that in a highly irregular manoeuvre to influence the Court after its draft judgement had been issued to the parties, Counsel for the Foreign Office sent a letter to one of the judges demanding a particular paragraph of his judgement to be deleted.
The judgement was changed by the Master of the Rolls Lord Neuberger to keep the damning paragraph secret.
Following protest from Binyam’s lawyers and the media, Neuberger is set to look at the matter and whether the paragraph should be reinstated next week.
In yesterday’s judgement, Neuberger said that Miliband’s case was ‘logically insupportable and therefore irrational’.
The Lord Chief Justice, Lord Judge said that the UK government’s case 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’.
He continued: ‘Such a case engages concepts of democratic accountability and, ultimately, the rule of law itself.’
The court judgement said: ‘We regret to have to include that the reports provided to the Security Service 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.
‘The treatment reported, if it had been administered on behalf of the United Kingdom, would clearly have been in breach of (a ban on torture).
‘Although it is not necessary for us to categorise the treatment reported, it could be readily contended to be at the very least cruel, inhuman and degrading treatment of BM by the United States authorities.’
The 7 contested paragraphs in full read:
(IV) It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 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 during 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 interviews 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 provided 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 of BM by the United States authorities.
Following the judgement, Shami Chakrabarti, Director of Liberty, said: ‘These embarrassing paragraphs reveal nothing of use to terrorists but they do show something of the UK government’s complicity with the most shameful part of the War on Terror.
‘The government has gone to extraordinary lengths to cover up kidnap and torture. A full public inquiry is now inescapable.’
Ethiopian-born Binyam Mohamed has consistently insisted that the UK intelligence services and government knew he was tortured at the behest of the CIA during seven years of captivity.
Following yesterday’s court ruling, Miliband issued a statement in which he said ‘the government accepts the decision of the Court of Appeal’.
He added: ‘At the heart of this case was the principle that if a country shares intelligence with another, that country must agree before its intelligence is released.
‘This “control principle” is essential to the intelligence relationship between Britain and the US.
‘The government fought the case to preserve this principle, and today’s judgement upholds it.
‘It agreed that the control principle is integral to intelligence sharing.
‘The court has today ordered the publication of the seven paragraphs because in its view their substance had been put into the public domain by a decision of a US court in another case.
‘Without that disclosure, it is clear that the Court of Appeal would have overturned the Divisional Court’s decision to publish the material.
‘The government has made sustained and successful efforts to ensure Mr Mohamed’s legal counsel had full access to the material in question.
‘We remain determined to uphold our very strong commitment against mistreatment of any kind.’
The redacted paragraphs have now been published on the Foreign Office website.