Jenny Booth
Times Online
February 4, 2009
Two senior British judges today expressed their anger and surprise
that President Barack Obama’s government has put pressure on the UK
to suppress evidence of torture in US custody.
Lord Justice Thomas and Mr Justice Lloyd Jones said they had been
told that America had threatened to stop co-operating with Britain
on intelligence matters, putting British lives at risk, if evidence
was published suggesting that Binyam Mohammed, a British resident
held at the US prison camp at Guantanamo Bay, had been tortured into
confessing crimes.
The judges said that lawyers for the Foreign Office had assured them
that the threat still held good, even since Mr Obama came to power
and reversed many of the policies of his predecessor on the torture
and detention of terror suspects.
In a withering ruling that condemned America for a lack of principles,
the two judges said: “We did not consider that a democracy governed
by the rule of law would expect a court in another democracy to
suppress a summary of the evidence contained in reports by its own
officials … relevant to allegations of torture and cruel, inhumane,
or degrading treatment, politically embarrassing though it might be.
“We had no reason … to anticipate there would=2 0be made a threat
of the gravity of the kind made by the United States Government that
it would reconsider its intelligence sharing relationship, when all
the considerations in relation to open justice pointed to us providing
a limited but important summary of the reports.”
The ruling concerns the case of Mr Mohammed, an Ethiopian national
who came to Britain as a teenage refugee, who was arrested and taken
into US custody in Pakistan in 2002, and has been held at Guantanamo
Bay since September 2004 on suspicion of terrorism.
Mr Mohammed, 31, claims he was tortured and mistreated into falsely
confessing to being involved in an alleged dirty bomb plot – claims
that the US denies.
The charges against him have however been withdrawn and no new charges
were issued against him before Mr Obama issued an order on January 22
freezing all proceedings against Guantanamo detainees pending a review.
Mr Mohammed wants reports written by US intelligence officials,
which it is understood may back his claims of torture, to be published.
In an initial ruling on his claims last August, the two judges
tantalisingly revealed that MI5 had taken part in unlawfully
interrogating Mr Mohammed. They ruled that the UK Government was
under a duty to disclose evidence which it held about Mr Mohammed’s
treatment after his detention in Pakistan.
But because the US government objected, they edited out of their
ruling any det ails from reports written by American intelligence
officials supplied to the British courts by the US.
Various media organisations then mounted their own legal challenge
to have the US reports made public. Today the judges issued their
verdict, declining to publish the US reports, but lashing America
for bullying the British courts to conceal information that posed no
threat to America’s national security.
“Championing the rule of law, not suppressing it, is the cornerstone
of a democracy,” the judges wrote.
“The suppression of reports of wrongdoing by officials (in
circumstances which cannot in any way affect national security)
would be inimical to the rule of law and the proper functioning of
a democracy.”
The ruling was today raised on the floor of the House of Commons by
David Davis, the former Shadow Home Secretary who last year quit and
refought his parliamentary seat on the issue of protecting justice
and the rule of law.
Mr Davis said that the Americans had no right to interfere in the
British courts. He said the ruling implied that Mr Mohammed had been
tortured, and British agencies were complicit in that torture, and
that David Miliband, the Foreign Secretary, should now “come clean”
about what had been going on and the involvement of the British
intelligence agencies.
“All the rumours are that it actually does show some degree of
complicity by the UK and US governme nts,” he told the BBC News
“The question has come about that one of our agencies – MI5, MI6,
whoever – have known about torture being used against people like that
(Mohammed), has used information arising from torture, all of those
sorts of issues. We want the plain truth out of the Government.”
He urged Mr Miliband to go back to the new US administration to
ask it to lift its objections to the release of the material, and
he demanded a Commons statement from the Government on the ruling,
calling it “a matter of utmost national importance”.
Clive Stafford Smith, Mr Mohammed’s lawyer, said that by not disclosing
the evidence the UK was giving in to blackmail.
“The US is under a legal duty to investigate the crime of torture,
not to suppress evidence that it happened,” he said.
“And the UK has a similar duty. For the Foreign Secretary to give in
to these illegal demands by the Bush administration is capitulation
to blackmail, pure and simple.
“It is hardly Britain’s finest hour. As the judges say, it is up to
President Obama to put his money where his mouth is. He must repudiate
his predecessor’s reprehensible policy.”
Shami Chakrabarti, director of human rights group Liberty, called
for ministers to launch an inquiry into Britain’s alleged role in
rendition and torture.
She said it was 9 Calarming and surprising” that the new US
administration maintained the threat against the Foreign Office.
She said: “Despite best efforts to shine a light on the grubbiest
aspects of the ‘war on terror’, the Foreign Office has claimed that
the Obama administration maintained a previous US threat to reconsider
intelligence-sharing unless our judges kept this shameful skeleton
in the closet.
“We find this Foreign Office allegation about the new presidency
surprising and alarming and it must be substantiated without delay.”