The British media are awash in stories today about how the Cheney-Bush administration threatened to end intelligence cooperation if the UK government revealed evidence that a British resident, Ethiopian-born Binyam Mohammed, was tortured at the Guantánamo detention center in Cuba. Two leading High Court judges in the long-running high-profile case are also saying they'd been told by the Foreign Office that the threat still applies under the Obama administration.
The Times reported that the judges had been told by Foreign Secretary David Miliband that if they released documents sought by Mohammed's lawyers in the case:
... the evidence could lead to America "revaluating" its intelligence sharing with the "real risk that it would reduce the intelligence provided".
The judges added: "It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the United States government might carry out that threat and this would seriously prejudice the national security of the United Kingdom."
Today's ruling discloses that the secret documents at the centre of the case - seven paragraphs amounting to 25 lines - "give rise to an arguable case of torture or cruel, inhuman or degrading treatment" against Mohamed.
It is also said that a British intelligence official may have been present when Mohamed alleges he was tortured.
But the story, as variously reported in Times, Guardian, Telegraph, the BBC and Channel 4, is brimful of contradictions regarding the threat. And there seems to be a considerable amount of back-pedaling.
The key question yet to be answered is whether the British Foreign Office has been using the threat as a cudgel against the High Court to protect itself from unpleasant revelations regarding UK complicity in torture.
The latest reports have Foreign Secretary David Miliband backing off a bit:
"There has been no threat from the United States to 'break off' intelligence co-operation," he said. "Intelligence co-operation depends on confidentiality. We share our secrets with other countries and they share their secrets with us. The founding principle for us and for them is that we can trust the confidentiality of that relationship.
"In this case, the United States made it clear, in documents that have been published, that there would inevitably be serious and lasting harm if that fundamental principle was breached."
Mr Miliband said that there was no indication that the US position had changed under President Obama. He said suggestions that British agencies may have been "complicit" in the alleged torture of Mohamed had already been referred by the Government to the Attorney General, Baroness Scotland.
Hmmmmm. No threat ever? Or no threat from the Obama administration?
Because the BBC noted:
The BBC's Jonathan Beale in Washington said a former Bush administration official who dealt with Guantanamo Bay confirmed that US intelligence agencies did tell the UK that they opposed the release of certain US intelligence without their consent.
The official added that this was standard practice, just as M16 and M15 would oppose the release of UK intelligence in the US without their consent.
Civil liberties campaigners described the judges' remarks on the case as "astounding".
Shami Chakrabarti, director of Liberty, said the Bush administration had tried "to bully" the British courts and President Obama must make it clear he would not do the same.
Indeed he should. But the President ought at least to actually get a chance to answer the question, eh?
Because Miliband's comment that there has been "no indication" that the position has changed since Obama came into office is a good deal less solid than what the High Court judges said in their statement that they were told by Miliband's lawyers:
"We have however been informed by Counsel for the Foreign Secretary that the position has not changed. Our current understanding is therefore that the position remains the same even after the making of Executive Orders by President Obama on 22 January 2009..."
The judges also stated they were disappointed 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 ... where the evidence was relevant to allegations of torture..."
Moreover, by talking to the British Embassy in Washington, the UK Channel 4 has learned that nobody has apparently asked the Obama administration if the threat still stands.
The obvious question to ask going forward is whether the Foreign Office sought to cow the judges into withholding documents they believe are crucial to Mohammed's case by telling them of a threat that may no longer be a threat.
The Ethiopian-born Mohammed is suing in the UK High Court to obtain documents from the Foreign Office that his lawyers say will prove he was tortured. The same judges making their lament today ruled last August that the documents should be released.
Mohammed obtained asylum in Britain in 1994, went to Afghanistan in mid-2001, crossed over into Pakistan after the September 11 attacks that year and was taken into custody, allegedly when he tried to fly from Karachi to London on a forged passport.
He says he was taken to a "ghost prison" in Morocco via the U.S. program of extraordinary rendition, tortured there, and then taken in 2004 to Guantánamo, where he was humiliated and tortured, including having his penis cut with a scalpel. In 2005, he was charged as an accomplice to Jose Padilla in a conspiracy to build dirty bombs for use against high-rise apartment buildings in the United States.
There was an attempt to try him by presidential military commission before the Supreme Court's Hamdan decision ruled such commissions outside the Constitution. In 2007, Foreign Secretary Miliband requested that he and four other detainees at Guantánamo be freed. Mohammed was charged in 2008 under the congressionally passed Military Commissions Act, but the charges were dropped last October, along with those of four other detainees whose names had been given up by Abu Zubaydah, a detainee the CIA has admitted waterboarding.
The BBC reported today:
The judges said they wanted the full details of the alleged torture to be published in the interests of safeguarding the rule of law, free speech and democratic accountability.
But they had been persuaded that it was not in the public interest to publish those details as the US government could then "inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains".
These details were a summary of a report by the US government to the British security services about the detention and treatment of the individual concerned which amounted to 25 lines.
And the Telegraph elaborated:
They said they had to find a balance between national security on the one hand and the public interest in open justice, safeguarding the rule of law, free speech and democratic accountability.
"In the circumstances now prevailing, the balance is served by maintaining the redaction of the paragraphs from our first judgment," they said.
"In short, whatever views may be held as to the continuing threat made by the US Government to prevent a short summary of the treatment of Mohamed being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the UK to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day-to-day life."
Finding a balance between national security and the liberties of a free society is, obviously, something that all democracies must wrestle with. Over the past seven years, however, the Cheney-Bush administration has pressed forward those national security claims by taking the United States many steps down the path that dictators everywhere prefer to trod. And we continue to discover just how far they were willing to go to undertake and conceal their crimes. In the past two weeks, the Obama administration has initated some welcome backtracking. The Mohammed case offers the opportunity to do so again. That opportunity should be seized without delay.
[Update]: While I was writing, Asinus Asinum Fricat published UK Complicit in Gitmo Torture, which covers some of the same territory, but with a different angle. Other Diarists have also tackled this today: here, here and here.