Wednesday, 4 February 2009

Why is David Davis protesting now?

Binyan Mohamed is an Ethiopian national who in 2000 was given exceptional leave to remain in the UK for 4 years. He worked in London as a cleaner, and studied electronics and electrical engineering. In 2001 he travelled via Pakistan to Afghanistan. There seems no dispute that he posed a real terrorist risk, though the charge that he was conspiring to construct a radioactive dirty bomb has never been tried in court. He was arrested in Pakistan in 2002 and began 6 years of captivity, until 2004 in secret US detention centres and since 2004 at Guantanamo.

Last August his lawyers applied to the British courts for disclosure of information allegedly held by the Security Service and Secret Intelligence Service (1) about his whereabouts between 2002 and 2004 and (2) about the treatment he received in custody.

His lawyers allege that he was tortured in Karachi (hung by his wrists with leather thongs, food and toilet deprivation, beaten, threatened with a gun). They allege he was flown in July 2002 in a CIA Gulfstream aircraft to a secret detention centre in Morocco, where he was tortured further (beatings, sleep deprivation, his penis cut with a scalpel). They allege that in 2004 the US transferred him to the 'Prison of Drakness' in Kabul where he underwent further torture (kept in a 'black hole', sleep deprived, starved, beaten, hung up, blasted with sound). He was then transferred to Bagram for a few months, and then finally to Guantanamo.

Whilst being held, he was visited and interviewed by officers from the Security Service. Two officers gave secret evidence in court which was treated with great suspicion by the judges. There is no suggestion that SyS or SIS officers participated in physical acts of torture or brutality, but it seems that threats were made by them to BM when they interviewed him. The reticence of the officers to provide truthful evidence was in part because of the risk of incriminating themselves in torture as 'consenting condoners'. The judges said:
In the closing submissions made on behalf of the Foreign Secretary, it was accepted that it was not necessary for BM to establish that the actions of the Foreign Secretary were causative of the wrongdoing. We consider that that acceptance was plainly correct for the reasons we shall set out. It is sufficient that the SyS or SIS became involved in the wrongdoing (even if innocently) by facilitating that wrongdoing.
The SyS and SIS had 'facilitated' that wrongdoing by providing to the US intelligence services intelligence they had gathered about BM's life in the UK, his contacts and known associates, information that the US then used in their interrogations of him, at which SyS and SIS officers were not present.

BM's lawyers, you will remember, were asking the British court for the disclosure of evidence that the UK government had to support their allegations and provide a defence for BM when he faced a possible capital charge under US law. The UK government eventually presented a Public Interest Immunity certificate to the court stating that such disclosure would not be in the public interest.

The government was (in part anyway) influenced by an implied threat from the US to the court that disclosure would imperil future intelligence sharing between the US and UK. The reasons the Foreign Secretary gave for his position were summarised by the judge as follows:
i) National security considerations weighed more heavily in the case of relations with the United States than with any other country, The advice the Foreign Secretary had received was that disclosure of the documents by the order of the Court or otherwise by the United Kingdom authorities would seriously harm the existing intelligence sharing arrangements between the United Kingdom and the United States and thereby cause considerable damage to the national security of the United Kingdom, The US administration had made this clear through senior officials, both orally and in writing.
ii) The intelligence relationship between the United States and the United Kingdom was vital to the national security of the United Kingdom. It was essential that the ability of the United States to communicate in confidence with the United Kingdom was protected. Without that confidence the United States Government would not share information in an open manner as was currently the case.
iii) Disclosure by order of the United Kingdom courts would introduce new and, in the mind of the United States Government, uncertain dimensions to a set of practices that currently rested upon certainty.
iv) Apart from the damage to the relations between the United States and the United Kingdom Governments, the international relations of the United Kingdom more generally would be damaged as would liaison relationships with third parties.
OK, that's a summary of the general facts of the case.

The judges were clearly unhappy that the US threat, which Obama's officials confirmed, prevented them ordering the disclosure of what the UK knew about BM's rendition and torture. As the Telegraph is reporting, they said:

"In the light of the long history of the common law and democracy which we share with the United States it was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported, as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters.

"Indeed we 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 ... relevant to allegations of torture and cruel, inhumane, or degrading treatment, politically embarrassing though it might be.

"We had no reason ... to anticipate there would be made a threat of the gravity of the kind made by the United States Government that it would reconsider its intelligence sharing relationship, when all the considerations in relation to open justice pointed to us providing a limited but important summary of the reports."

David Davis is clearly angry. The BBC's report says that Nick Robinson said the claims were "extraordinarily serious".

I'm afraid I don't have a great deal of sympathy for Binyan Mohamed. We gave him shelter, provided for his wellbeing, gave him a secure place in a tolerant and decent nation and he repaid it by going off to learn how to slaughter us. Allegedly. On the face of it, he deserves everything he's got.

But I don't like being bullied by the US any more than anyone else does. And their facilities in the UK are too precious for them to lose, so I think the threat is an empty one - although it's remarkably convenient for the Foreign Secretary. My money's on Miliband being behind the whole thing rather than the septics. And perhaps that's why David Davis is protesting now.

7 comments:

Blue Eyes said...

So whether someone should be allowed a fair trial and humane treatment depends on what crime they are alleged to have committed?

If prosecutors had the evidence then he should have been tried in a proper court, if not he should have been released [and possibly monitored].

This idea that "terrorism" is so heinous that it required the suspense of due process is a dangerous one. If he had, genuinely, been planning or making a dirty bomb there would be more than enough evidence to convict in a proper court.

The Penguin said...

Who is paying for Binyan Mohamed's lawyers?

The Penguin.

Raedwald said...

I think the decision not to prosecute was taken on grounds that the loss to the intelligence services by open disclosure of evidence in court would be greater than the need to put BM out of action, especially now that he's suffering from severe mental problems and doesn't pose much of a risk any more.

The evidence that's been disclosed leaves little doubt he was involved with al-quaeda.

But I can't disagree with what you say - just that I can't get indignant about this bloke.

Guthrum said...

The one and only duty of the Government is the Defence of the Realm. The man was a threat to this country, SIS officers did not torture him. If the Americans are prepared to torture in the name of the American People that is down to them.

The Americans are bullys at times and lacking in finesse, but in this case the Public Interest Certificate was justified.

Time to move on

Blue Eyes said...

R - in which case why not just let him go instead of totally undermining our legal principles in order to get one over on one odious man?

The Great Simpleton said...

I agree with BE on the suspense of due process.

The one question that bothers me is why have we treat him as someone with full citizen status and allow him access to our courts in the first place? As I understand it he was given residential status and not citizenship because his home country is a mess. By leaving here and going to live elsewhere he should no longer be able to benefit from our hospitality. let his lawyers complain to the courts of the country of his birth or where he was arrested.

Mr Ecks said...

So what if he is a danger to this country? So were german officers during WW2, a much bigger danger than the Al Q nitwit crew(--if they exist as an organised force outside the deceitful lies of government-goon agencies). That did not mean that we took any we captured and tortured them for information. The Nazis didn't even do that to ordinary POWs for Gods sake.