Miliband forced to release secret files that prove MI5 colluded in torture of terror suspect Binyam Mohamed

Daily Mail
10.02.2010
By Daily Mail Reporter

The Government today suffered a humiliating defeat in its attempt to suppress secret evidence that shows MI5 knew about the torture of British resident Binyam Mohamed while in U.S. custody.

The devastating High Court ruling dramatically undermines ministers’ repeated claims that Britain has not colluded in the mistreatment of terror suspects.

Three Appeal Court judges dismissed a bid by Foreign Secretary David Miliband to block the publication of a summary of CIA evidence that the former Guantanamo Bay detainee suffered physical and psychological torture at the hands of U.S. interrogators.

The evidence, published for the first time today, reveals the treatment of Mr Mohamed ‘could readily be contended to be at the very least cruel, inhumane and degrading’.

Another paragraph stated that it was clear from reports that the 31-year-old was placed under ’significant mental stress and suffering’.

Today Mr Miliband faces calls for a public inquiry into the case after the judges warned it raised issues of ‘fundamental importance’ and ‘of democratic accountability and ultimately the rule of law itself’.

Mr Miliband had argued that releasing the material would harm national security.

But the Court of Appeal ruled that a seven-paragraph summary of what the CIA told  British intelligence officials about Mr Mohamed’s treatment in 2002 should be released.

High Court judges Lord Justice Thomas and Justice Lloyd Jones had ruled last month that the ’secret seven paragraphs’ should be made public - but the Government immediately appealed.

In an unprecedented attack on the judiciary, Foreign Secretary David Miliband branded the judges ‘irresponsible’.

Mr Miliband employed one of the country’s most skilful - and expensive - advocates to try and prevent the release of the information.

Jonathan Sumption QC is reported to earn up to £3 million a year and has been described by experts as one of the Bar’s most formidable operatives.

But after details of Mr Mohamed’s treatment were revealed in a separate court case in America and accepted as true by a U.S. judge, the Appeal Court ruled the summary would not threaten national security and could be published.

‘The Government fought the case to preserve this principle, and today’s judgment 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 U.S. 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.’

Mr Mohamed had been backed in his quest for public access to the censored information by the human rights campaign group Reprieve and by various news media organisations.

Lawyers for these groups argued that the secret seven paragraphs contained no information that was harmful to either British or U.S. security.

Although born in Ethiopia, Mr Mohamed moved to Britain in 1994 and is now a British resident.

He was picked up by American forces in Pakistan in 2002 on suspicion of involvement in terrorism and then ‘rendered’ to Morocco, and Afghanistan.

After allegedly being subjected to torture - including having his genitals cut with a razor - he was sent to Guantanamo Bay, from where he was released without charge earlier this year.

In their ruling last year, Lord Justice Thomas and Mr Justice Lloyd Jones said the evidence they saw shows ‘that the relationship of the United Kingdom Government to the United States authorities in connection with Binyam Mohamed was far beyond that of a bystander or witness to the alleged wrongdoing’.

At the hearing last December, lawyers for Mr Mohamed and the British and international media argued that disclosure of the secret material was in the public interest.

They accused the Government of seeking to suppress ‘embarrassing and shaming’ evidence of Britain’s involvement in torture.

They said sensitive admissions by the CIA to the British security service over the ill-treatment of Mr Mohamed raised the prospect of both UK and U.S. Governments being exposed to ’serious criminal liability for an international war crime’.

But lawyers acting for the Foreign Secretary had accused the judges of ‘charging in’ to a diplomatically sensitive area - jeopardising UK intelligence-sharing with the U.S.

Mr Sumption QC, appearing for Mr Miliband, said the current legal proceedings were unnecessary and had ‘essentially been taken over to serve a wider, and in some respects, political agenda’.

Today, Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger, and President of the Queen’s Bench Division Sir Anthony May - disagreed.

In the lengthy ruling, Lord Judge said he acknowledged the ‘centrality of confidentiality to intelligence-sharing arrangements and no inclination to under-estimate their importance to national security’.

But he added that the redacted paragraphs 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’.

He added: ‘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.’

Lord Judge said there was no secret about the treatment to which Mr Mohamed was subjected while in the control of the U.S. authorities.

He also notes the involvement of an MI5 officer only referred to a ‘Witness B’ in Mr Mohamed’s detainment and how he must have known he was being tortured by the Americans and others.

At an earlier hearing in the Divisional Court, Lord Judge notes, ‘Witness B saw himself as having a role to play in conjunction with the US authorities in inducing [Mr Mohamed] to co-operate by making it clear that the United Kingdom would not help unless [Mr Mohamed] cooperated.

‘We can well understand why, given the exigencies of the time Witness B put matters in such stark terms as he did.

‘It is clear that what he said to [Mr Mohamed] was, in effect, that the United Kingdom would not attempt to assist him unless [Mr Mohamed] persuaded him that he was cooperating fully with the US authorities.

Lord Judge added: ‘We are no longer dealing with the allegations of torture and ill-treatment; they have been established in the judgment of the court, publicly revealed by the judicial processes within the U.S. itself.’

In a damning verdict on Mr Miliband’s efforts to suppress the information, the second Court of Appeal judge Lord Neuberger wrote: ‘The ultimate decision whether to include the redacted paragraphs into the open version of the first judgment is a matter for judicial, not executive, determination.

‘It has been clear that the question whether a document should be exempted from disclosure in legal proceedings on the ground that disclosure would damage the public interest should ultimately be decided by the court.

Lord Neuberger pointed out that a U.S. court had accepted Mr Mohamed’s claims that he was tortured while being held by America’s secret service in Pakistan.

He added: ‘It is therefore now in the public domain, as a fact found by a U.S. court in proceedings in which the U.S. Government was a party, that he was mistreated, indeed tortured.

‘In the light of that, it appears to me that the whole basis for the Foreign Secretary’s
case for redaction… has fallen away.

In these circumstances, I am of the view that there is simply no longer any basis for the Foreign Secretary maintaining the case for excision of the redacted paragraphs.’

David Miliband this afternoon told the Commons that the Appeal Court ruling is leading to a ‘great deal of concern’ in the U.S.

The Foreign Secretary said he had fought to prevent the release of secret information on the former Guantanamo Bay detainee to defend the ‘fundamental’ principle that intelligence shared with the UK would be protected.

Mr Miliband said the treatment of Mr Mohamed went against British principles, but it was not carried out by the UK.

The Foreign Secretary said there had been allegations of ‘possible criminal wrongdoing by a British official’ and these were the subject of a police investigation.

He went on: ‘The most basic values of this country are at issue in the debate that will follow the court’s decision today.

‘Our position is clear - the UK firmly opposes torture and cruel, inhuman and degrading treatment or punishment.

‘This is not just about legal obligations, it is also about our values as a nation and about what we do, not just what we say.’

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