British Court uncovers MI5 torture complicity
The court of appeal declassified documents and released them to the public in the judgement of a case brought by Binyam Mohamed
The documents which the British Government claimed would be detrimental to national security if they were released unredacted in fact made clear the extreme torture that Binyam Mohamed was subjected to by the US and the complicity of the British government at the time.
This case clearly shows that the government is willing to lie and hide behind the protection of “national security” when facing possibly embarrassing revelations. “National security” has become one of the main justifications behind the regime of secret evidence which has been introduced in Britain in the past few years.
The organisation Cageprisoners responded to the judgement by calling for the unequivocal ban on the use of secret evidence as a total contravention of the internationally recognised standards of due process.
Cageprisoners Spokesperson Asim Qureshi said: “This has clearly shown the deception that the British government will employ to cover up its own wrong-doing. What must be done now is that every case where the government has evoked “national security” for the purpose of keeping information secret must be examined at length. We would be foolish to believe this lie to be an isolated incident.”
Cageprisoners also released a report concerning British complicity in torture which detailed the case of Binyam Mohamed. It can be read here:
The British Government was so worried that the shocking involvement of MI5 in unlawful imprisonment and torture will be exposed to the world that the government’s lawyer, Jonathan Sumption QC, sought to limit the damage by writing to the court of appeal on Monday protesting about the wording of the draft copy of the judgment as result of which the appeal judges agreed to redact paragraph, 168, which was critical of MI5, but agreed to publish Jonathan Sumption’s letter which is reproduced below.
8 February 2010
Dear Sirs,
Case No.: TI/2009/2331/QBACF: R (Binyam Mohammed) v. Secretary of State for Foreign and Commonwealth Affairs
Judgment is due to be delivered in this case on Wednesday 10 February 2010. The Court will be receiving a separate letter about typing corrections and other obvious errors. The purpose of this present letter is to deal with an important matter of substance, which I would invite the Court to consider before handing down their judgment in final form. I would be grateful if you would lay it before them.
At paragraph 168 of his Judgment, the Master of the Rolls makes some observations about the previous ‘form’ of SyS. I assume from the context that he is referring to the Security Service, although in paragraph 64 the Master of the Rolls defines SyS as including the Secret Intelligence Service as well, and a reader less familiar with the context might assume that he was referring to both.
The Master of the Rolls’s observations, to whichever service they relate, are likely to receive more public attention than any other part of the judgments. They will be read as statements by the Court (i) that the Security Service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques; (ii) that this was in particular true of Witness B whose conduct was in this respect characteristic of the service as a whole (’it appears likely that there were others’); (iii) that officials of the Service deliberately misled the Intelligence and Security Committee on this point; (iv) that this reflects a culture of suppression in its dealings with the Committee, the Foreign Secretary and indirectly the Court, which penetrates the service to such a degree as to undermine any UK government assurances based on the Service’s information and advice; and (v) that the Service has an interest in suppressing information which is shared, not by the Foreign Secretary himself (whose good faith is accepted), but by the Foreign Office for which he is responsible.
The first point that I would make about this is that the conduct of Witness B, was referred by the Attorney-General to the Crown Prosecution Service and is currently under investigation by the police. If the observations in the draft Judgment appear in the final version, the publicity likely to be given to them would be highly prejudicial to any criminal proceedings that might subsequently be brought, as well as to the current civil proceedings brought against the United Kingdom Government by Binyam Mohammed among others.
More generally, the Master of the Rolls’ observations, which go well beyond anything found by the Divisional Court, constitute an exceptionally damaging criticism of the good faith of the Security Service as a whole. In particular, the suggestion that the Court should distrust any UK government assurance based on the Service’s advice and information will unquestionably be cited in other cases and, if applied more widely, would mark an unprecedented breakdown in relations between the Courts and the executive in the area of public interest immunity. The statements of ministers in this area, although embodying their own judgements, are often necessarily based on the information and advice of the Security Service. I am bound to suggest, which I do with genuine and not just forensic. respect, that such grave criticisms of a public service and those who work in it should be made only if the issue is fairly raised in advance and the Court has an exact knowledge of the relevant circumstances. To categorise a problem as systemic is rarely a straightforward matter. In this case, it would be necessary at the very least to examine the methods and procedures of the Security Service in relation to the interviewing of detainees as well as the giving of information and advice to ministers; the basis on which the statement to the Intelligence and Security Committee was made, and what further information was provided to them, in particular about the treatment of detainees; what (if any) other instances there are of the Service’s knowledge of ill-treatment of detainees interviewed by them, how information of this kind is stored, on what occasions it is retrieved, how widely it is disseminated within the Service and what the Service’s response was. The Court has not been in a position to do any of this. It simply does not have the material. Even if it had, ordinary considerations of natural justice would suggest that those responsible for the management of the Security Service should have had a proper opportunity to respond. No submission as extreme as this was made during the hearing, let alone supported by evidence. The Service has received no notice whatever of the Court’s intention to make such sweeping criticisms.
As to the statement that the Foreign Office has an interest in suppressing
information, in its present form this reads like an accusation of bad faith against those Foreign Office officials who have advised the Foreign Secretary. It may be that this was not intended. Certainly I am not aware of any material before the Court whic suggests that such an interest exists, or that any Foreign Office official has allowed it to influence advice given in the public interest to the Foreign Secretary, in this or any other case.
I respectfully invite the Court to reconsider whether paragraph 168 is necessary to its decision, and whether it really does justice to those involved.
Yours faithfully,
Jonathan SUMPTION Q.C.
cc. Nicola Smith, Treasury Solicitor
Dinah Rose QC