Three of Britain's most senior judges have ordered the government to reveal evidence of MI5 complicity in the torture of British resident Binyam Mohamed - unanimously dismissing objections by David Miliband, the foreign secretary.
a ruling that will cause deep anxiety among the security and
intelligence agencies, they rejected Miliband's claims, backed by the
US government, that disclosure of a seven-paragraph summary of
classified CIA information showing what British agents knew of
Mohamed's torture would threaten intelligence sharing between London
and Washington, and therefore endanger Britain's national security.
of the key paragraphs states that there "could readily be contended to
be at the very least cruel, inhuman and degrading treatment of Binyam Mohamed by the United States authorities".
judges - Sir Igor Judge, the lord chief justice; Lord Neuberger, the
master of the rolls; and Sir Anthony May, president of the Queen's
Bench - shattered the convention that the courts should not question
claims by the executive relating to national security.
references to claims made by Miliband and his lawyers, and stressing
the importance of the media in supporting the principle of open
justice, they said the case raised issues of "fundamental importance",
of "democratic accountability and ultimately the rule of law itself".
of the material Miliband wanted to suppress was "compelling", Judge
said, since they concerned the involvement of wrongdoing by agents of
the state in the "abhorrent practice of torture". The material helped
to "vindicate Mr Mohamed's assertion that UK authorities had been
involved in and facilitated the ill- treatment and torture to which he
was subjected while under the control of USA authorities".
The disputed paragraphs have now been published by the Foreign Office.
said in a statement: "The government accepts the decision of the court
of appeal that in the light of disclosures in the US court, it should
publish the seven paragraphs at issue in the case of Binyam Mohamed.
the heart of this case was the principle that if a country shares
intelligence with another, that country must agree before its
intelligence is released.
"This 'control principle' is essential to the intelligence relationship between Britain and the US.
"The government fought the case to preserve this principle, and today's judgment upholds 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 US court in another case.
disclosure, it is clear that the court of appeal would have overturned
the divisional court's decision to publish the material.
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."
Foreign Office spokesman said: "Under the terms of the embargo we were
permitted by the court to notify a small number of US officials in
advance of this judgment. We have done so.
"The foreign secretary
spoke last night to Hillary Clinton. He stressed to her that the court
had strongly supported the control principle and would have agreed with
HMG [her majesty's government] had it not been for the Kessler judgment
in the US court last December, which had effectively disclosed the
material in the seven paragraphs.
"The foreign secretary and the secretary of state reaffirmed the importance of the US-UK intelligence relationship."
Shami Chakrabarti, the director of Liberty, said the ruling and revelations made a public inquiry "inescapable".
"It has been clear for over a year that the Foreign Office has been more concerned with saving face than exposing torture.
embarrassing paragraphs reveal nothing of use to terrorists but they do
show something of the UK government's complicity with the most shameful
part of the war on terror.
"The government has gone to extraordinary lengths to cover up kidnap and torture. A full public inquiry is now inescapable."
to the appeal court's ruling was a recent case in a US court where the
judge noted that Mohamed's "trauma lasted for two long years. During
that time he was physically and psychologically tortured. His genitals
were mutilated ... All the while he was forced to inculpate himself and
others in various plots to imperil Americans."
The US court, which was hearing a case relating to another detainee at Guantánamo Bay, noted that Mohamed was told "that the British government knew of his situation and sanctioned his detention".
MI5 officer known only as Witness B is being investigated by the
Metropolitan police over his alleged role in questioning Mohamed
incommunicado in a Pakistan jail.
The whole basis of Miliband's
case had "fallen away" because of the US court case, said Neuberger,
who added: "It is a case which is now logically incoherent and
therefore irrational and is not based on any convincing evidence."
his ruling , May said: "In principle a real risk of serious damage to
national security, of whatever degree, should not automatically trump a
public interest in open justice which may concern a degree of
facilitation by UK officials of interrogation using unlawful techniques
which may amount to torture or cruel, inhuman or degrading treatment."
a stinging reference to claims by Jonathan Sumption QC, Miliband's
counsel, that high court judges in earlier rulings were "irresponsible"
in saying that CIA intelligence relating to ill treatment and torture
and Britain's knowledge of it should be disclosed, the lord chief
justice said: "No advantage is achieved by bandying deprecatory
Mohamed was detained in 2002 in Pakistan, where he was
questioned incommunicado by an MI5 officer. The US flew him to Morocco,
Afghanistan, and Guantánamo Bay, where he says he was tortured with the
knowledge of British agencies.
In the high court last year, Lord
Justice Thomas and Mr Justice Lloyd Jones ruled that it was clear from
the evidence "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".
Here are the seven paragraphs that were blanked out in earlier proceedings:
was reported that a new series of interviews was conducted by the
United States authorities prior to 17 May 2002 as part of a new
strategy designed by an expert interviewer.
v) It was
reported that at some stage during that further interview process by
the United States authorities, BM had been intentionally subjected to
continuous sleep deprivation. The effects of the sleep deprivation were
vi) It was reported that combined with
the sleep deprivation, threats and inducements were made to him. His
fears of being removed from United States custody and "disappearing"
were played upon.
vii) It was reported that the stress
brought about by these deliberate tactics was increased by him being
shackled in his interviews
viii) It was clear not only
from the reports of the content of the interviews but also from the
report that he was being kept under self-harm observation, that the
interviews were having a marked effect upon him and causing him
significant mental stress and suffering.
ix) We regret to
have to conclude that the reports provide to the SyS [security
services] made clear to anyone reading them that BM was being subjected
to the treatment that we have described and the effect upon him of that
x) The treatment reported, if had
been administered on behalf of the United Kingdom, would clearly have
been in breach of the undertakings given by the United Kingdom in 1972.
Although it is not necessary for us to categorise the treatment
reported, it could readily be contended to be at the very least cruel,
inhuman and degrading treatment by the United States authorities.