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The Kidnapping & Torture of Binyam Mohamed

 

Background

Media Reports

Court Documents

Government Reports

Photo Credits

 

Background

 

“The CIA has been secretly pressuring the British Government to help it cover up its use of torture, documents filed in the High Court have revealed. The documents, to be discussed at a hearing this week, suggest that the UK authorities did everything they could to accede to the CIA’s wishes while at the same time trying to conceal the fact they were talking to the agency. It is the latest twist in the saga of Binyam Mohamed, 30, the Ethiopian UK resident released from Guantanamo Bay in February after seven years in US captivity. […] he told how he was captured in Pakistan, interrogated by the CIA, tortured, then sent to Morocco for further 'medieval' torture on a CIA ‘extraordinary rendition’ flight. After 18 months there, he was tortured again in the CIA’s ‘dark prison’ in Afghanistan. He alleged that UK officials from MI5 were ‘complicit’ in his ordeal. […]”

 

Excerpt of a Daily Mail article from July 25th, 2009.

Binyam Mohamed before and after Guantánamo

 

Related Lawsuit: Binyam Mohamed et al vs. Jeppesen Dataplan, Inc.

 

Recent Media Reports

 

May 4th, 2010 - Former Guantánamo Detainees Set for Payouts after Winning Secrecy Appeal

1 news article from the Guardian

 

March 15th, 2010 - MPs Step up Demands for Inquiry into MI5 Torture Claims

1 news article from the Guardian

 

February 27th, 2010 - Judges Release Criticism of MI5 Agents in Binyam Mohamed Case

1 news article from the Times

 

February 20th, 2010 - Tell Us the Truth About Torture, Watchdog Insists

1 news article from the Times

 

Media Reports File

 

 

Court Documents

 

Binyam Mohamed vs. Secretary of State for Foreign and Commonwealth Affairs

(Lord Chief Justice of England & Wales vs. Secretary of State for Foreign and Commonwealth Affairs)

 

Court of Appeal (Civil Division)/Royal Courts of Justice

Case No.: T1/2009/2331

 

U.K. High Court (Queen’s Bench Division) Divisional Court

Case No.: CO/4241/2008

 

Important Rulings:

 

February 26th, 2010 - Judgment of the Court

 

“[…] In these circumstances, the final version of paragraphs 168 to 170 in my judgment of 10th February 2010 is as follows:

 

“‘168. Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that ‘they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training’ (paragraph 9 of the first judgment), indeed they ‘denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government’ (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others.

 

“The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information. […]’”

 

February 10th, 2010 - Approved Judgment

 

“[…] 48. In agreement with the Master of the Rolls and the President of the Queen’s Bench Division, in my judgment, this appeal should be dismissed. By way of emphasis, and so as to disclose my own approach to the problem, I shall briefly highlight what seem to me to be the most important considerations. […]

 

“[…] 55. There is no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities. 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 USA itself. And this serves to highlight that the redacted paragraphs represent part of the Divisional Court’s reasoning, directed not to wrongdoing by the USA authorities but involvement in that wrongdoing by our own intelligence services, and the successful argument by Mr Mohamed that he was entitled to the relief he had sought against the Foreign Secretary. In the context of intelligence sharing arrangements, the decision to disclose evidence critical of the USA authorities by a court in the USA does not reflect identical considerations to its possible disclosure by a court in the UK. Nevertheless, there is at least one common theme. The former represents the proper working of the judicial processes in the USA, and although the latter would constitute a breach of the confidentiality arrangements, the breach would be consequent on the proper working of the judicial processes in this country.

 

“56. There is an attractive argument that Mr Mohamed has nothing further to gain from publication of the redacted paragraphs. That, however, is a consequence of his vindication through the operation of the litigation process and the prolonged delay consequent on the apparently endless arguments about the possible publication of the redacted paragraphs. The successful party is no less entitled to know the reasons for the court’s judgment than the unsuccessful parties. I have already noted the strange consequence that if the redaction is 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. There is a clear interest in Mr Mohamed knowing, and the community at large also knowing, not only that his allegations were vindicated, but also the full reasons (even if not the entirety of the evidence) which led the court to its conclusion. The redacted paragraphs are integral to the reasoning that Mr Mohamed’s entitlement to relief fell within the ambit of executive involvement in wrongdoing. […]”

 

November 19th, 2009 - Approved Judgment 6

 

“[…] 5. The Foreign Secretary stated in his further submissions of 20 October 2009 that he did not wish to address to this court any further submissions on the redaction issue beyond those set out in that document. He submitted that, if this court rejected those it should find against the Foreign Secretary, without requiring any further hearing, and stay the disclosure of the passages pending an appeal. In addition the Foreign Secretary stated that he did not intend to submit ‘any further evidence’ on the reasons justifying the redactions of the passages in question from the fifth judgment. The other parties objected to the Foreign Secretary’s stance.

 

“6. We agreed with the other parties. We were surprised that, having obtained interim relief, the Foreign Secretary was not prepared either to produce evidence or address argument to us to support his contention that the redacted passages might reveal the content of the seven paragraphs redacted from our first judgment and that placing them in the public domain would give rise to damage to national security. We considered that it was not open to the Foreign Secretary to withdraw from this issue or to reserve his submissions and evidence for the Court of Appeal on any appeal. Subject to considerations of confidentiality and national security, the other parties were entitled to be given the opportunity to respond to the Foreign Secretary's case, particularly in the light of our decision on the confidentiality club set out at paragraphs 18-24 which we made known to the parties on 26 October 2009. […]

 

“[…] 14. We therefore will finalise our fifth judgment with the four redacted passages restored to it. However, as the Foreign Secretary has made clear that he intends to appeal against our decision on the redactions from the fifth judgment, we will reissue our judgment for the public with only the passage to which he originally objected, but to which he does not now object, restored; the remaining four passages will remain redacted in the public version of the judgment to abide the decision of the Court of Appeal. […]”

 

October 16th, 2009 - Approved Judgment 5 (Revised Redacted Version)

 

“[…] 96. As we have set out at paragraphs 32 and 68 above, it was submitted that the Foreign Secretary had not acted with candour in his dealings with the court, that he had misled the court prior to the handing down of our fourth judgment and that he had subsequently failed to act in good faith.

 

“97. It was submitted that the procedural events which we have set out showed that the Foreign Secretary was reluctant to act openly in a manner both the public and the court would expect. The timing of the meeting at which Secretary of State Clinton made the significant statement on which the Foreign Secretary relies took place after we had decided to re-open our judgment and therefore in circumstances in which it could be inferred we were not satisfied that the CIA letter was sufficient.

 

“98. It was submitted that the Foreign Secretary and those advising him in the British Security Services have a clear conflict of interest in not wishing to put into the public domain matters for which the Security Services might receive criticism in relation to their knowledge of what was being done by the United States authorities. In the light of further allegations that have been raised in relation to other individuals whilst these proceedings have been pending, this was submitted to be a factor which is now of greater importance than when we handed down our first judgment.

 

“99. We are satisfied that in the period prior to the handing down of our fourth judgment, there was no intention to mislead the court. It would have been more prudent if, in the light of the letter from BM’s solicitors on 18 December 2008 […] a specific enquiry had been made of the Obama Administration prior to the handing down of our fourth judgment and we had been told of the actual position, but we cannot attribute what happened to a lack of good faith. […]”

 

February 4th, 2009 - Approved Judgment 4

 

“[…] 81. The Foreign Secretary has expressed the view in his certificate of 5 September 2008 that the balance of the public interest lies against disclosure. In reaching that view he took into account the allegations of mistreatment made by BM, the importance of underlining the UK’s abhorrence of torture and cruel, inhuman or degrading treatment. He accepted the importance of open public debate on these issues, but he considered that dialogue with the United States on such matters was best undertaken in confidence. Balancing those considerations against the real risk of serious damage to national security and his view that no further benefit would be secured for BM, he considered that the balance lay against disclosure.

 

“82. However, it is common ground that his view on where the balance of the public interest lies is not conclusive. Although the Foreign Secretary has expressed his view of the balancing, the rule of law requires that the determination of where the balance lies is ultimately for the decision of the court. We must do so, however, on the basis of his judgement on that part of the public interest that relates to national security issues. We must also attach considerable weight to his judgement of the balance of the public interest. […] Attaching weight to the view of the Foreign Secretary in this case is relevant, not only because we must act on the basis of his judgement as to the real risk to national security, but also because we should have regard to his actions, as set out in our previous judgments, where on behalf of the United Kingdom Government, both he and his Legal Adviser, Mr Bethlehem QC, have made so clear the United Kingdom’s position on the abhorrence of torture and cruel, inhuman or degrading treatment and have gone to considerable lengths to assist BM.

 

“83. But before we consider where the balance of the public interest lies, it is necessary to see if there are alternatives other than making the redacted paragraphs public which will protect the public interest in open justice, the rule of law, free speech and democratic accountability without damaging national security. […]”

 

October 22nd, 2008 - Approved Judgment 3

 

“[…] 54. We therefore accept the submission of the lJnited Kingdom Government that we should stay the matter for a defined period to allow the application to proceed before Judge Sullivan. We will hear the parties on the length of that period. In the light of his decision, the issue may become academic. If not we will have the benefit of understanding the position of the United States Government and the benefit of Judge Sullivan’s views when we proceed to determine he remaining issues in relation to the provision of the 42 documents. These issues include Miss Rose QC’s submission that the Government of the United States is deliberately seeking to avoid disclosure of the 42 documents.

 

“55. We must record that we have found the events set out in this judgment deeply disturbing. This matter must be brought to a just conclusion as soon as possible, given the delays and unexplained changes of course which have taken place on the part of the United States Government. […]”

 

August 29th, 2008 - Approved Judgment 2

 

August 21st, 2009 - Open Judgment

 

“[…] 2. The issue in this case is whether the defendant, the Secretary of State for Foreign and Commonwealth Affairs (the Foreign Secretary), must make available certain information and documents in confidence to lawyers acting for Binyan Mohamed (BM), who is not a British national, though he was resident in the United Kingdom. He was arrested in Pakistan on 10 April 2002 and has been held by the United States at Guantanamo Bay since September 2004. On 28 May 2008 he was charged with offences which may carry the death penalty. He faces an imminent decision on the reference of those charges for trial before a Military Commission established under the United States Military Commissions Act of 2006. He contends that the only evidence against him is confessions made by him at the United States base at Bagram in Afghanistan between May and September 2004 and further confessions prior to November 2004 which were made shortly after his transfer to Guantanamo Bay in September 2004. He claims that these were made after a two year period of incommunicado detention after his arrest in Pakistan, during which he was subject to cruel, inhuman or degrading treatment and torture at the hands of Pakistani and Moroccan authorities with the connivance of the United States Government and to similar treatment by the United States Government.

 

“3. It is accepted by the Foreign Secretary, as is set out at paragraph 47.ii) below, that it is possible that documents which the United Kingdom Government has recently found could be considered exculpatory or might otherwise be relevant in the context of proceedings before the Military Commissions. BM’s lawyers contend that the importance of the documents or the information contained in them is that they may provide essential support to BM’s account of what happened to him. The information or the documents should therefore be disclosed to them in confidence, as the United States Government has refused to provide any information whatsoever in relation to his detention between April 2002 and May 2004, not even his location during that period. The Foreign Secretary contends that he is under no duty to disclose the documents or the information contained in them and to do so would in any event cause significant damage to national security of the United Kingdom. He contends that there is no disadvantage to BM, as the documents will be made available during the proceedings under the United States Military Commissions Act of 2006. That forum will therefore provide the proper remedy for BM consistent with the interests of the United Kingdom’s national security. The efficacy of that process is challenged on behalf of BM. […]

 

“[…] 148. We therefore would, on the issues so far determined, order the provision of the information specifically relevant to BM. We hope that the precise ambit of the information and the form in which it is to be provided can be agreed between the Special Advocates and those representing the Foreign Secretary, as we have indicated at paragraph 138. If not we will hear the parties further.

 

“149. However, we do not propose to make an order until the Foreign Secretary has had the opportunity to consider whether in all the circumstances he will invoke public interest immunity in respect of the disclosure of the information which would otherwise follow from our decision. If he does issue a certificate, we will then hear argument from the parties on the certificate and the outstanding issue on considerations of national security which, as we have set out, are relevant to the exercise of our discretion. […]”

 

 

Government Reports

 

August 20th, 2009 - Effect of Binyam Mohamed Trial on Information Sharing with Britain

Press Release by the U.S. State Department

 

“[…] Question Taken at the August 19, 2009 Daily Press Briefing

 

“[…] Question: Does the release of the 7 paragraphs of information from the trial of Binyam Mohamed hinder our intelligence sharing with Britain?

 

“Answer: The United States and the UK government continue to share a commitment to protect sensitive national security information and preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens. Beyond that, the State Department does not comment on intelligence matters. […]”

 

August 4th, 2009 - Allegations of UK Complicity in Torture

Report by the U.K. House of Lords & House of Commons

 

"[...] 10. Binyam Mohamed is an Ethiopian national who was resident in the UK before being arrested in Pakistan as a terrorism suspect in 2002. He was transferred to Guantanamo Bay in 2004 before being released in February 2009.

 

“11. The US brought terrorism charges against Mr Mohamed in May 2008, as a result of which Mr Mohamed brought proceedings against the UK Government seeking disclosure of potentially exculpatory material. This led to a series of High Court judgments relating to the case, which is still continuing. In August 2008, the High Court found that the UK security services ‘facilitated interviews’ in Pakistan of Binyam Mohamed, the only remaining former British resident then being detained at Guantanamo Bay, while he was being detained unlawfully and without access to a lawyer, by providing information and questions.

 

“The High Court found that: by seeking to interview BM in the circumstances described and supplying information and questions for his interviews, the relationship of the United Kingdom Government to the United States authorities in connection with BM was far beyond that of a bystander or witness to the alleged wrongdoing.

 

“12. This judgment, and some of the evidence on which it was based, particularly the evidence of a security service agent, ‘Witness B’, led the Home Secretary in October 2008 to refer the question of possible criminal wrongdoing to the Attorney General. On 26 March 2009, she invited the Metropolitan Police to commence a criminal investigation. [...]"

 

February 5th, 2009 - Statement to the House of Commons on Binyam Mohamed

Statement by the U.K. Foreign & Commonwealth Office

 

“[…] The fundamentals of the case are as follows. Mr Binyam Mohamed, an Ethiopian national, formerly resident in the UK, was arrested in Pakistan in 2002. In 2004 he was transferred to Guantanamo Bay. Until August 2007 the Government had taken responsibility for the release and return of British nationals from Guantanamo Bay. In August 2007, my Rt Hon Friend the Home Secretary and I wrote to then US Secretary of State to seek Mr Mohamed’s release from Guantanamo Bay and his return to the United Kingdom, along with four other former UK residents. Over the last eighteen months, we have mounted what the Court has called a strenuous effort to acheive that objective. We have throughout kept Mr Mohamed’s family and lawyers informed of his situation and our efforts to resolve it.

 

“The United States brought terrorist charges in May of last year against Mr Mohamed before a Military Commission. Mr Mohamed subsequently brought proceedings against the British Government in an effort to secure the disclosure to his legal counsel of any material held by the British Government that might assist in the defence of his case before the Military Commission. Having looked through all the material we held across government, we provided through the appropriate legal and statutory mechanisms a great deal of both classified and unclassified UK information. Amongst the information we held, however, we also identified some highly classified US intelligence material. We took the view that the material was potentially exculpatory and ought to be disclosed to Mr Mohamed’s legal counsel. As this was sensitive US government material, we informed the relevant US authorities of our view. We also informed Mr Mohamed’s counsel. We have worked since then to ensure that all the material was indeed made available to Mr Mohamed’s legal counsel by the US Government through their own procedures. […]

 

“[…] At the heart of Mr Mohamed’s case have been allegations that he was tortured by foreign government officials in a number of locations. It is the longstanding policy of the Government that we never condone, authorise or cooperate in torture. I repeat that commitment today. We also take seriously all allegations of torture and investigate them fully. Allegations have been made in the course of these legal proceedings that the UK is in some way complicit in the alleged mistreatment of Mr Mohamed. Following the Court’s judgment of 22 October, on 23 October last year my Rt Hon friend the Home Secretary referred the question of possible criminal wrongdoing to the Attorney General. This is now being considered by the Attorney General. This is, as the Court acknowledged yesterday, the proper democratic and legal process. […]

 

“[…] As anyone who has read the judgments will appreciate, in circumstances in which Mr Mohamed’s access to the information relevant to his defence had been secured, the sole question for my consideration concerned the publication of classified material received from a foreign intelligence service, in this case the US. […]

 

“[…] Our intelligence relationship with the United States is vital to the national security of the United Kingdom. It is essential that the ability of the United States to communicate such material in confidence to the UK is protected; without such confidence they will simply not share that material with us. The same applies to our intelligence relationships with all those who share intelligence material with us. And what applies to them also applies to us. We share intelligence with a large number of countries. We do so to protect British citizens. And we do so on the basis that the material will not be put into the public domain against our wishes. To state the obvious, were our own classified information to be disclosed in this way, it could compromise our work, our sources and our security.

 

“It therefore was - and remains - my judgment that the disclosure of the intelligence documents at issue by order of our courts against the wishes of the US authorities would indeed cause real and significant damage to the national security and international relations of this country. For the record, the United States authorities did not threaten to ‘break off’ intelligence cooperation with the UK. What the United States said, and it appears in the open, public documents of this case, is that the disclosure of these documents by order of our Courts would be ‘likely to result in serious damage to US national security and could harm existing intelligence information-sharing between our two governments’. That’s a simple affirmation of the facts of intelligence cooperation. It is worth noting that last night, in response to the High Court’s judgment, the US National Security Council reaffirmed the longstanding US position concerning the importance of protecting sensitive national security information and preserving the long-standing intelligence-sharing relationship between our two countries. […]”

 

February 4th, 2009 - Binyam Mohammad High Court Judgement

Statement by the U.K. Foreign & Commonwealth Office

 

“[…] This case was originally brought on the question of whether Binyam Mohamed’s US legal defence team should have access to US material relating to his treatment in detention. The British Government pressed for that to happen. In October 2008, in part as a result of our representations, the US authorities decided to provide their material in full to his defence lawyers.

 

“We have sought the release of Binyam Mohamed from Guantanamo and his return to the UK. We continue to discuss this intensively with the US authorities.

 

“UK policy on torture is clear. We unreservedly condemn it. We never condone it. We always take allegations relating to it seriously. The issue of potential criminal liability has been raised earlier in this case. The Home Secretary has already referred the facts of the case to the Attorney General.

 

“Intelligence relationships, especially with the United States, are vital to Britain's national security. They are based on an assumption of trust. Matters regarded as secret by one government should be treated as secret by others. For it to be called into question would pose a serious and real risk to continuing close intelligence sharing with any government. As the Foreign Secretary expressly affirmed in his PII Certificate, it was ultimately a matter for the Court to balance the Foreign Secretary's appreciation of the risks to national security and the interests of publication of the material in question. They decided in favour of national security - in circumstances in which there was no longer any continuing issue of justice to the claimant, whose legal team now have sight of all the material in question. […]”

 

 

Photo Credits

 

Background

 

1) Binyam Mohamed in London - 2000 - unknown source/Associated Press;

2) Former British resident Binyam Mohamed, right, arrives at a military base near London. - February 23rd, 2009 - Lewis Whyld/Associated Press;

 

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