LONDON - The high court yesterday condemned
as "deeply disturbing" a refusal by the US to disclose evidence that
could prove a British resident held at Guantánamo Bay was tortured
before confessing to terrorism offences.
The court said there was
"no rational basis" for the American failure to reveal the contents of
documents essential to the defence of Binyam Mohamed, who faces the
In a particularly damning passage, Lord Justice
Thomas and Mr Justice Lloyd Jones said claims by Mohamed's lawyers that
the US was refusing to release the papers because "torturers do not
readily hand over evidence of their conduct" could not be dismissed and
required an answer.
The judges said they were unaware of any
precedent for such serious allegations against "the government of a
foreign friendly state and our oldest and closest ally" as those made
in this case.
The US had not provided any explanation for its conduct, though it had had "ample time" to do so, the judges said.
and Lloyd said the documents provided the "only independent evidence"
capable of helping Mohamed and his defence. Suppressing the material
"would be to deny him the opportunity of timely justice in respect of
the charges against him", which was a principle dating back to "at
least the time of Magna Carta and which is a basic part of our common
law and of democratic values".
They said David Miliband, the
foreign secretary, conceded there was an "arguable case" that Mohamed
had been subjected to torture and inhuman treatment. Yet Miliband also
wanted to suppress relevant documents, not because they would reveal
any intelligence operations but because the US claimed that if they
were disclosed serious harm would be done to "intelligence sharing"
between the UK and the US.
The judges said it was clear Britain
had "facilitated" Mohamed's interrogation when he was unlawfully
detained in Pakistan before being secretly rendered to Morocco,
Afghanistan, and then to Guantánamo. The US was using confessions made
after two years of unlawful "incommunicado detention" on charges where
the death penalty might be sought, the judges said yesterday.
noted that a military prosecutor at the US base had recently resigned
in protest against the treatment of prisoners, including the use of a
"frequent flyer programme". The judges described this as a "euphemism
for a sleep deprivation programme". They added: "This is a practice
which the United Kingdom expressly prohibits."
Mohamed- including that he was involved in a dirty bomb plot - have
been dropped, allegedly to prevent the US from revealing torture
evidence. The US authorities now planned to charge him with other
offences, the judges noted yesterday.
The judges took the
extraordinary step of inviting the media to challenge previous
decisions to hold many of the case's hearings in camera. "Although the
argument took place in closed session," they said, "the issue is one of
considerable importance in the context of open justice [and] to the
rule of law."
They suspended proceedings pending a case in the US
courts, where defence lawyers are also trying to force disclosure. That
federal court, the British judges said yesterday, might be given
explanations about US conduct "denied to this court".
Stafford Smith, the director of the charity Reprieve, described
Mohamed's treatment by the US as a "litany of misconduct".
they tortured him, then they held him for more than six years without
trial, now they want to cover up evidence that could set him free," he
said. "What is the point of a 'special relationship' if the UK
government cannot secure basic justice for Mr Mohamed?"
Stein, one of Mohamed's lawyers, said: "The grave concerns expressed by
the court about the dealings of the Americans in this case are not
surprising, given the torture Mr Mohamed has suffered. This underlines
the British government's duty to do more than gently nudge its ally
across the Atlantic when it comes to criminal acts taken against a
Mohamed, 30, an Ethiopian national and British
resident, was held in Pakistan in 2002, when he was questioned by an
MI5 officer. He was later secretly rendered to Morocco, where he says
he was tortured by having his penis cut with a razor blade. The US
subsequently flew him to Afghanistan and he was transferred to
Guantánamo Bay in September 2004.
Attempts to get the UK courts and parliament to take notice of the case of Binyam Mohamed began more than three years ago. Clive Stafford Smith, director of the charity Reprieve, told the Guardian about a hunger strike by Guantánamo Bay prisoners,
including Mohamed, who was rendered to the US base in Cuba. Mohamed's
case was taken up by the all-party parliamentary group on extraordinary
rendition, chaired by Andrew Tyrie MP
UK citizens and residents held at Guantánamo were released between
2005 and 2007, but Mohamed was kept. This summer, the high court heard
about the way the US and British governments tried to stop the release
of evidence about his case. Defence lawyers argued that MI5 misled MPs about his treatment. In August, in an interim judgment, the high court ruled that MI5 had participated in Mohamed's unlawful interrogation.