Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice
10.11.08
The case of Binyam Mohamed just gets weirder and weirder. For the last six months, the British resident and Guantánamo prisoner, who was seized in Pakistan in April 2002, has been engaged in a transatlantic struggle to secure evidence relating to his “extraordinary rendition” and torture, by or on behalf of the CIA, which involved his disappearance from July 2002 until his arrival at the US prison at Bagram airbase in Afghanistan in May 2004. Since September 2004, Mohamed has been held at Guantánamo, and in conversation with his lawyers has explained that he was sent to Morocco, where he was tortured for 18 months, and then spent another four months in the CIA’s “Dark Prison” near Kabul.
In June, a judicial review was triggered after the Treasury Solicitors turned down a request from Mohamed’s lawyers to release documents in the British government’s possession regarding his illegal detention in Pakistan and his subsequent disappearance. The lawyers pointed out that Mohamed was about to be put forward for a trial by Military Commission at Guantánamo (the system of “terror trials” conceived by the US administration in November 2001, and derided by Lord Steyn as a “kangaroo court”), and stated that the information was essential to his defence for two reasons: firstly, because the US government had refused to provide any information whatsoever about his whereabouts from July 2002 to May 2004; and secondly, because Mohamed claimed that the charges against him — primarily in connection with an alleged plot to detonate a radioactive “dirty bomb” in a US city — had been extracted, during this period, through the use of torture.
The judicial review took place in July, and Lord Justice Thomas and Mr. Justice Lloyd Jones were clearly appalled by the behaviour of the British intelligence services. When they delivered a judgment at the end of August, they criticized the intelligence services for sending agents to interrogate Mohamed in May 2002, while he was being held illegally in Pakistan, and also for providing and receiving intelligence about him from July 2002 until February 2003, when they knew that he was being held incommunicado, and should not have been involved without receiving cast-iron assurances about his welfare. In the judgment, they stated explicitly that, “by seeking to interview BM [Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”
The judges also seized on an admission, made on behalf of the Foreign Secretary, David Miliband, that Mohamed had “established an arguable case” that, until his transfer to Guantánamo, “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States,” and ruled that, because the information obtained from Mohamed was “sought to be used as a confession in a trial where the charges … are very serious and may carry the death penalty,” and that it is “a long-standing principle of the common law that confessions obtained by torture or cruel, inhuman or degrading treatment cannot be used as evidence in any trial,” the British government was required to hand over the evidence — 42 documents in total — to his lawyers.
This was a remarkable result, but celebrations on the part of Mohamed’s lawyers and human rights groups were soon muted when the government responded to the only lifeline extended by the judges — that national security concerns might override the necessity for disclosure — by filing a Public Interest Immunity certificate which stated, in so many words, that the need to preserve the “special relationship” between the American and British intelligence services trumped the right of a man rendered to torture by one country — and with the complicity, to some extent at least, of the other — to have access to evidence that might help in his defence.
Read the full article here.
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