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The
War Profiteers - War Crimes, Kidnappings & Torture |
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The Kidnapping & Torture of Binyam
Mohamed |
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“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 |
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Related
Lawsuit: Binyam
Mohamed et al vs. Jeppesen Dataplan, Inc. |
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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 |
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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. […]” |
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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. […]” |
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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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