Torture appeal lost by UK government

[David Guyatt]

http://news.bbc.co.uk/1/hi/uk/8507852.stm

Government loses torture appeal



The foreign secretary has lost an Appeal Court bid to stop the disclosure of secret information relating to the alleged torture of a UK resident.

Ethiopian-born Binyam Mohamed says UK authorities knew he was tortured at the behest of US authorities during seven years of captivity.

David Miliband had said releasing the material would harm national security.

Judges ruled redacted paragraphs, which say his treatment was "cruel, inhuman and degrading", should be released.

The judgement was delivered by the three most senior Court of Appeal judges in England and Wales.

Commenting on the case, the prime minister's spokesman said the government stood firmly against torture and cruel and inhumane treatment.

The key details are contained in a seven-paragraph summary of what the CIA told their British intelligence officials about Mr Mohamed's treatment in 2002.

“ We remain determined to uphold our very strong commitment against mistreatment of any kind ”
Foreign Secretary statement
Following the ruling, Mr Miliband issued a statement in which he said "the government accepts the decision of the Court of Appeal".

The redacted paragraphs have now been published on the Foreign Office website.

BBC home affairs reporter Dominic Casciani said the seven-paragraph summary released by the court provides details of what London learnt about Mr Mohamed's treatment in 2002, following his detention in Pakistan.

At the time he was being held by Pakistani interrogators at the behest of the US, who suspected him of having received firearms and explosives training from al-Qaeda in Afghanistan.

The summary says that Mr Mohamed was intentionally subjected to continuous sleep deprivation during his initial period of captivity.

Along with the sleep deprivation, it says the interrogators subjected him to threats and inducements, including playing on his fears that he would be passed on to another country.

ANALYSIS
Dominic Casciani, BBC home affairs reporter This battle was about the control principle - that the UK does not have permission to reveal any intelligence that the US passes on in confidence.
But that position in relation to Binyam Mohamed's treatment was fatally undermined by two factors.

Firstly, the courts held that the secret seven paragraphs related to potentially criminal ill-treatment, rather than critical matters of national security.

The Lord Chief Justice makes plain in his judgement that he might have thought differently if the material had been genuinely secret.

Secondly, the Obama White House has been busy declassifying material and memos that covered what was done in America's name after 9/11.

Lawyers in this case now have a new question: What were the rules in 2002 for British intelligence officers who discovered a terrorism suspect was being ill-treated elsewhere?

The prime minister says the revised rules will be published soon but the old ones will remain secret.

London learnt that the stress brought on by these deliberate tactics was increased by him being shackled during his interviews and that Mr Mohamed was eventually placed on suicide watch.

The judgement continued: "We regret to have to include that the reports provided to the Security Service 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 intentional treatment.

"The treatment reported, if it had been administered on behalf of the United Kingdom would clearly have been in breach of [a ban on torture].

"Although it is not necessary for us to categorise the treatment reported, it could be readily contented to be at the very least cruel, inhuman and degrading treatment of BM by the United States authorities."

Last year, the High Court ruled that the seven paragraphs should be published, with the judges saying that they did not believe the US would stop co-operating with British intelligence officials if the material was made public.

Lord Justice Thomas and Mr Justice Lloyd Jones ruled that the risk to national security was "not a serious one" and there was "overwhelming" public interest in disclosing the material.

However, the summary was kept secret to allow the foreign secretary to appeal.

BINYAM MOHAMED
Detained in Pakistan in 2002, questioned there by MI5 officer
Transferred to Morocco, claims he was tortured in US custody and asked questions supplied by MI5
Later interned in Guantanamo Bay and eventually released in 2009
Mr Miliband had said that the court had no authority to disclose US secrets that had been handed over to the British under a long-standing principle within the intelligence community that information can be shared, but never disclosed without permission.

In his statement, Mr Miliband said this principle was "at the heart of this case", adding: "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 judgement upholds it."

The statement concluded: "We remain determined to uphold our very strong commitment against mistreatment of any kind."

Mr Mohamed, a 31-year-old Ethiopian granted refugee status in Britain in 1994, was arrested in Pakistan in 2002 over a visa irregularity and was handed over to US officials. He was secretly flown to Morocco in 2002.

There, he says he was tortured while interrogators asked him questions about his life in London.

He says these questions could only have come only from British intelligence officers.

Mr Mohamed was sent to the Guantanamo Bay detention facility, run by the US in Cuba, in 2004.

He was held there until his release without charges in February 2009, when he returned to the UK.

Redacted paragraphs

The following is quoted from the first judgment of the Divisional Court in the Binyam Mohamed case on 21 August 2008. We have alerted the Court to a typographic error.

"The following seven paragraphs have been redacted
[It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 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 carefully observed.

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 inter views 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 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 intentional treatment.

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]"