British Foreign Secretary: Clinton Threatened to Cut-Off Intelligence-Sharing if Torture Evidence is Disclosed

I've written several times before
about the amazing quest of Binyam Mohamed -- a British resident
released from Guantanamo in February, 2009 after seven years in
captivity -- to compel public disclosure of information in the
possession of the British Government proving he was tortured while in

I've written several times before
about the amazing quest of Binyam Mohamed -- a British resident
released from Guantanamo in February, 2009 after seven years in
captivity -- to compel public disclosure of information in the
possession of the British Government proving he was tortured while in
U.S. custody. At the center of Mohamed's efforts lie the claims of
high British government officials that the Obama administration has
repeatedly threatened to cut off intelligence-sharing programs with the
U.K. if the British High Court discloses information which British
intelligence officials learned from the CIA about how Mohamed was
tortured. New statements from the British Foreign Secretary yesterday
-- claiming that Hillary Clinton personally re-iterated those threats
in a May meeting -- highlight how extreme is this joint
American/British effort to cover-up proof of Mohamed's torture.

In August 2008, the British High Court ruled in Mohamed's favor, concluding in a 75-page ruling
(.pdf) that there was credible evidence in Britain's possession that
Mohamed was brutally tortured and was therefore entitled to disclosure
of that evidence under long-standing principles of British common law,
international law (as established by the Nuremberg Trials and the war
crimes trials of Yugoslav leaders, among others), and Britain's treaty
obligations (under the Convention Against Torture). But as part of
that ruling, the Court redacted from its public decision seven
paragraphs which detailed the facts of Mohamed's torture -- facts which
British intelligence agents learned from the CIA -- based on
the British Government's representations that both the Bush
and Obama administrations had threatened to cut off
intelligence-sharing with Britain if those facts were disclosed, even
as part of a court proceeding.

The British government's
claims about these threats led the British High Court to conclude that
it could not disclose those facts in good conscience because the U.S.
was, in essence, threatening to put the lives of British citizens at
risk by terminating intelligence-sharing over terrorist threats. When re-affirming its decision (.pdf) to withhold that information in light of American threats, the Court pointedly wrote:

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 or officials of
another State where the evidence was relevant to allegations of torture
or cruel, inhuman or degrading treatment, politically embarrassing
though it might be.

Ever since this controversy
became public, there have been disputes over exactly what threats
the Bush and Obama administrations were really issuing. Were the
threats real; were they contrived and issued at the request of
the British government in order to give them a pretextual weapon to
bully the British High Court to keep the torture facts concealed; or
was it some combination of both? What has been clear from the start is
that the British Government, at its highest levels, insists that it was
threatened this way by both the Bush and Obama administrations.

In May, The Washington Times' Eli Lake reported
that an extraordinary letter sent to the British by the Obama
administration proved that "the Obama administration [said] it may
curtail Anglo-American intelligence sharing if the British High Court
discloses new details of the treatment of a former Guantanamo
detainee." That same day, I obtained the court documents filed by the British Government (.pdf) which purported to include that letter sent by the Obama administration, and I wrote about that letter here.

letter explicitly threatened that the U.S. would cut off
intelligence-sharing with the British in the event of disclosure of
these torture facts by the British court. The letter expressly warned
that such action "could reasonably be expected to cause serious damage
to the United Kingdom's national security" and "it is almost
certain that the United Kingdom's ability to identify and arrest
suspected terrorists and to disrupt terrorist plots would be severely
." In other words: if you let your courts describe
how we tortured Mohamed -- even if your laws, your treaty obligations
and decades-old international law compel such disclosure -- we may
purposely leave your citizens vulnerable to future terrorist attacks by
withholding information we obtain about terrorist plots aimed at your

New facts emerged yesterday about the threats issued by
the Obama administration. Back in February, the British
Foreign Minster, David Miliband, denied that he was explicitly threatened by the Bush administration. But now, The Guardian reports
that -- at least according to Miliband -- threats were issued by
the Obama administration not only in the form of that previously
disclosed letter, but also personally by Hillary Clinton in a May
meeting with him and other British officials:

Clinton, the US secretary of state, personally intervened to suppress
evidence of CIA collusion in the torture of a British resident, the
high court heard today
. . . . David Miliband, the foreign
secretary, has repeatedly told the court that the US would stop sharing
intelligence with the UK if the CIA material was published. . . Today,
it heard how Miliband met Clinton in Washington on 12 May this year.

a written statement proposing a gagging order, Miliband told the court
that she "indicated" that the disclosure of CIA evidence "would affect
intelligence sharing". Pressed repeatedly by the judges on the claim
yesterday, Karen Steyn, Miliband's counsel, insisted that Clinton
was indeed saying that if the seven-paragraph summary of CIA material
was disclosed, the US would "reassess" its intelligence relationship
with the UK, a move that "would put lives at risk".

the truth here is about these threats, it is undeniably clear that
the U.S. and British Governments are working in collusion to keep
concealed the evidence of Mohamed's torture. In February, the Obama
administration issued a public statement praising
the British Government for convincing its High Court to keep these
facts concealed and said that this concealment would "preserve the
long-standing intelligence sharing relationship that enables both
countries to protect their citizens" -- certainly an implied threat
that the opposite would happen in the event of disclosure. And in the
U.S., the Obama administration has engaged in its own extraordinary
efforts to deny Mohamed a day in court, invoking the "state secrets" privilege to argue that the torture program which victimized him must be kept secret, and then after the Obama DOJ lost in the Ninth Circuit, trying to get that decision reversed by the full Circuit court.

could possibly justify this full-scale joint effort by the Obama
administration and the British government to cover-up evidence of
Mohamed's torture? In April, when I interviewed one of Mohamed's
lawyers, Clive Stafford Smith, he pointed out:

up evidence of torture is a criminal offense for which you can go to
prison here in Britain, and I imagine in the US but I'm not quite sure
about that. And the idea that the British government would conspire
with the US or be threatened by the US to do this is again an
independent violation of the law.

It's one thing
to try to impede prosecutions of those responsible for torture by
invoking the inspiring mantra that we Must Look to the Future, Not the
Past. It's another thing entirely to actively cover-up evidence of
that torture and block the victims from their day in court. There is
now a very active controversy over exactly what role the Obama
administration and British government is each playing in the issuance
of these extraordinary threats. But there is no doubt that both
governments are actively attempting to keep this evidence concealed.

In February, Andrew Sullivan wrote about the Mohamed case: "with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them." In May, Sullivan wrote:

but surely, Obama is owning the cover-up of his predecessors' war
crimes. But covering up war crimes, refusing to prosecute them,
promoting those associated with them, and suppressing evidence of them are themselves violations of Geneva and the UN Convention. So Cheney begins to successfully coopt his successor.

Also in May, The Washington Post's Dan Froomkin -- in a column entitled "President Obama Joins the Cover-Up"
-- wrote: "The president who came into office promising to restore our
international reputation and return responsibility to government now
seems to be buying into the belief that covering up our sins is better
than coming clean."

This has gone well beyond a passive failure to apply the rule of law (and comply with our treaty obligations)
by prosecuting. Instead, these are now active efforts to cover-up war
crimes. The British Foreign Secretary insists that Obama's Secretary
of State personally threatened that the U.S. would conceal information
about terrorist plots from the British if the facts of Mohamed's
torture were disclosed, while the Obama administration actively seeks
to block American courts from examining the same evidence. Can anyone
justify that?

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