Court of Appeals Ruling, February 10, 2010 (MS Word document)
Foreign & Commonwealth Office
Binyam Mohamed case10 Feb 2010
The Foreign Secretary said the Government accepts the decision of the Court of Appeal and has published the seven paragraphs at issue in the case of Binyam Mohamed.
Foreign Secretary, David Miliband, said:
'The Government accepts the decision of the Court of Appeal that, in the light of disclosures in the US court, it should publish the seven paragraphs at issue in the case of Binyam Mohamed. We have published the paragraphs below.
At the heart of this case was the principle that if a country shares intelligence with another, that country must agree before its intelligence is released. 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. It agreed that the control principle is integral to intelligence sharing. The court has today ordered the publication of the seven paragraphs because in its view their substance had been put into the public domain by a decision of a US court in another case. Without that disclosure, it is clear that the Court of Appeal would have overturned the Divisional Court’s decision to publish the material.
The Government has made sustained and successful efforts to ensure Mr Mohamed's legal counsel had full access to the material in question. We remain determined to uphold our very strong commitment against mistreatment of any kind.'
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]"
Source: UK Foreign & Commonwealth Office
Statement to the House of Commons on Binyam Mohamed10 Feb 2010
Foreign Secretary David Miliband made a statement to the House of Commons on 10 February on the case of Binyam Mohamed.
David Miliband updated the House of Commons on the case of Binyam Mohamed following the Court of Appeal judgement on 10 February:
With your permission, Mr Speaker, I’d like to make a statement to the House on the case of Mr Binyam Mohamed, following the judgement handed down this morning in the Court of Appeal.
Mr Speaker, the Court of Appeal has ruled that in the light of disclosures by a United States Court in December 2009, which I shall describe below, the seven paragraphs which had been redacted from the original judgement of the Divisional Court in this country of the 21st of August 2008 should be published. The seven paragraphs contain summaries of American intelligence relating to Mr Mohamed’s case held in UK files. I accept the Court’s ruling which concludes a very complex and in various ways apparently unique case, and have made the relevant paragraphs available this morning on the Foreign Office website.
Mr Speaker, the judgement is significant not just in respect of the seven paragraphs, but also for important principles which are at the very heart of both our national security and our democracy.
The facts are as follows Mr Speaker, Mr Mohamed, an Ethiopian national, formerly resident in the UK, was detained in Pakistan in 2002. In 2004 he was transferred to Guantanamo Bay. In August 2007, my Right Honorable Friend the then Home Secretary and I wrote to then US Secretary of State to seek Mr Mohamed’s release from Guantanamo Bay and his return to the United Kingdom, along with four other UK residents.
Mr Mohamed was released from Guantanamo a year and a half later, in February of last year.
Mr Speaker, in May 2008 Mr Mohamed brought proceedings against the British Government in an effort to secure disclosure to his legal counsel of any material held by the British Government that might assist in the defence of his case before a US Military Commission. The question at issue in our appeal against the judgement of the Divisional Court was not this disclosure, which we supported and secured. It was instead whether the intelligence provided, on a confidential basis, by one state to another, in absolute trust that it will be kept secure, should be disclosed in to the public domain in the interests of open justice; or whether instead the breach of trust would be so grave as to endanger intelligence sharing relationships and therefore affect national security.
As I have said in this House on a number of occasions, in this case it was US intelligence and an English court. But it could just as easily be British intelligence in a foreign court. As I have also said to the House, often, at issue in this case was not the content of the seven paragraphs, but the principle of their disclosure by an English Court against US wishes.
Mr Speaker I am grateful for the consideration the Court of Appeal gave to the control principle. This principle, which states that intelligence belonging to another country should not be released without its agreement, underpins the flow of intelligence between the US and the UK. This unique intelligence sharing relationship is vital to national security in both our countries.
Crucially Mr Speaker, the Court has uphold the, upheld the control principle today. The judgement describes that principle as integral to intelligence sharing. It specifically vindicates the careful assessment that releasing the seven paragraphs without the consent of the United States would have damaged the public interest. It also specifically makes clear that, and I quote, ‘this litigation has endorsed the application of public interest immunity and the maintenance of confidentiality over secret information’.
This is important for the future of intelligence sharing with the US and with others. However, on the 17th of December last year we received notice of a US court ruling in the case of another Guantanamo detainee, Farhi Saaed Bin Mohammed, which made a finding of fact in respect of Binyam Mohamed’s allegations of mistreatment. That judgement does not set out the content of the seven paragraphs per se but it does include references to the treatment of Mr, Mr Mohamed covered in the seven paragraphs.
We brought this to the attention of the Court of Appeal and Mr Mohamed’s counsel immediately. The Court of Appeal today ordered the publication of the seven paragraphs because in its view their contents were placed in to the public domain by a United States District Court. Without that disclosure, it is clear that the Court of Appeal would have upheld our appeal and overturned the fifth judgement of the Divisional Court.
The Court of Appeal was also clear that the judiciary should only overturn the view of the executive on matters of national security in the most exceptional circumstances. It states, and I quote, that ‘it is integral to intelligence sharing that intelligence material provided by one country to another remains confidential to the country which provided it and that it will never be disclosed, directly or indirectly by the receiving country, without the permission of the provider of the information. This understanding is rigidly applied to the relationship between the UK and USA’ unquote.
Mr Speaker, I spoke last night to Secretary Clinton about this case. It has been followed carefully at the highest levels in the US system with a great deal of concern. Recent events have shown the importance of the US-UK intelligence relationship in the fight against terrorism; equally the determination of the US authorities to protect the confidentiality of their intelligence has been absolute throughout this case. We will work carefully with the US in the weeks ahead to discuss the judgement and its implications in the light of our shared goals and commitments.
Mr Speaker, mistreatment of prisoners, not to say torture, violates the most basic principles of this country, never mind our national and international legal obligations. There is a fundamental commitment on the part of myself responsible for the Security and Intelligence Service, and my Right Honourable Friend the Home Secretary responsible for the Security Service, and the Heads and staff of these Agencies, to uphold the highest standards of conduct not just for ourselves but with the countries with whom we cooperate. A wide range of allegations have been made during the course of this case. Today some of the facts can be publicised, in some cases for the first time.
First, the paragraphs released today describe information received by our intelligence agencies concerning the conditions of Mr Mohamed’s detention by the United States in Pakistan in April 2002. They note specifically that he was subject to sleep deprivation, that he was subject to threats and inducements and that he was held shackled and that the treatment, were it conducted by the United Kingdom, would be contrary to undertakings first given to this House in 1972. To repeat, it was not conducted by the UK.
Second, now that they are in the public domain, it will also be evident that the paragraphs do not contain information on Mr Mohamed’s most serious claims of mistreatment – notably in respect of alleged genital mutilation – during his detention until his release from Guantanamo last year. We, the United Kingdom, have no information to corroborate those allegations. These matters have been raised quite properly by Mr Mohamed in his civil claim for damages and will be addressed there.
Third, during the course of these proceedings allegations of possible criminal wrongdoing by a British official were made. The Home Secretary referred these allegations to the Attorney General for her consideration, and they are now the subject of a Police investigation.
Mr Speaker, the vote, the most basic values of this country are at issue in the debate that will follow the Court’s decision today. Our position is clear. The UK firmly opposes torture and cruel, inhuman and degrading treatment or punishment. This is not just about legal obligations. It is also about our values as a nation, and about what we do, not just what we say. We have taken a leading role to eradicate torture internationally, both through organisations such as the UN and by assisting other countries. Where possible wrongdoing is found it is fully investigated.
Mr Speaker, I also want to place on record that we are lucky to have the best intelligence Agencies in the world. Their staff are second to none in their commitment and in their public service. They are respected across the world and the work that they do to keep Britain safe deserves all our admiration and gratitude, but there is a further and fundamental myth that needs to be addressed - it is that the security services operate without independent oversight.
Mr Speaker, Ministers and Agency Heads have the first responsibility for the conduct of their organisations. The Intelligence and Scrutiny Committee, Security Committee provide parliamentary scrutiny for the Agency activities. Independent judicial oversight is provided by the Commissioners who by law must be given access to whatever documents and information they need. Both report annually to the Prime Minister and to Parliament.
Then there are the Courts, whose role is to protect the rights of individuals and provide recourse to justice when they think they have been infringed. This they have done and continue to do in this case. This judgement today is not evidence that the system is broken; rather, it is evidence that the system is working, and that the full force of the law is available when citizens believe they have just cause. The six judgements in this case show, plus a closed judgement, show a seriousness of purpose in our legal system that is a vital part of our system of accountability.
Mr Speaker, we have fought this case, and brought the appeal, to defend a principle we believe is fundamental to our national security – that intelligence shared with us will be protected by us. No one likes to lose a case. But the force of this judgement is that it firmly recognises that principle and it, and that in doing so the court is fulfilling its vital constitutional role, protecting this country and upholding the law.
Source: UK Foreign & Commonwealth Office
February 10, 2010The protection of confidential information is essential to strong, effective security and intelligence cooperation among allies. The decision by a United Kingdom court to release classified information provided by the United States is not helpful, and we deeply regret it.
Statement by the Office of the Director of National Intelligence
Regarding United Kingdom Court Decision
The United States and the United Kingdom have a long history of close cooperation that relies on mutual respect for the handling of classified information. This court decision creates additional challenges, but our two countries will remain united in our efforts to fight against violent extremist groups.