A sensational clash over MI5s involvement in torture has erupted between the government and top judges in the case of the former Guantanamo detainee Binyam Mohamed, a British resident. The court had been asked to lift a bar on details of a Divisional Court ruling that Mohamed had suffered brutal and degrading treatment at the hands of Pakistani and American interrogators with MI5 complicity for over two years. In fact the appeal judges decided that a disclosure ruling was unnecessary. Judge CJ said: We are no longer dealing with the allegations of torture and ill-treatment; they have been established in the judgement of the court, publicly revealed by the judicial processes within the USA itself.” An American court had found that Mohamed had suffered two years of torture, had been deprived of sleep and food, held in stress positions, forced to listen to other prisoners screaming while locked in a pitch black cell and had his genitals mutilated.
After the ruling, the Foreign Office published the seven previously redacted paragraphs of the earlier Divisional Court ruling. Although revealing at least brutal and degrading treatment, civil rights lawyers neverthess dubbed this a tactical retreat. For the story was only hotting up.
It has since emerged that the foreign offices lawyer wrote to the appeal court last Friday protesting that paragraph 168 of their draft judgment made “exceptionally damaging criticism” of the security services, (MI5) and requesting that the remarks be removed.
“If the observations in the draft judgment appear in the final version, the publicity likely to be given to them would be highly prejudicial to any criminal proceedings that might subsequently be brought.,”
These proceedings refer to police inquiries into the role of an MI5 officer connected to the interrogation which the US judge in the first hearing unambiguously called torture. Lord Neuberger who had drafted the judgment assumed that as the law requires, Mohammeds counsel knew about the FCO barrister’s letter. But this wasnt so. It turns out that the judge had excised the criticism of MI5 before a copy of the FCOs lawyer has been received and Mohameds lawyer had a chance to argue against deletion. Greatly embarrassed, the three appeal judges will give Mohameds lawyers until Friday to appeal for the redacted criticism of MI5 to be restored. We know the gist of the judges criticism of MI5s role because Mohameds lawyers have released their copy of the letter which quoted the paragraph at issue. Channel 4 News quoted it at length.
1. that the Security Service does not operate within a culture of respect for human rights or abjures participation in coercive interrogation techniques
2. an MI5 witnesss evidence was characteristic of the service on this point.
3. That MI5 deliberately misled ( the Commons) intelligence and security committee
4. (the behaviour) reflects a culture of suppression.. that penetrates the service to such a degree as to undermine any UK government assurance based on MI5s information and advice
In a highly combative interview on Channel 4 News, presenter Jon Snow accused the foreign secretary David Miliband of breaking the law in failing to ensure that Mohammeds lawyers had not seen the letter asking for the judicial comments on MI5 to be removed, in time to challenge it. The reason, he put it to Miliband, was to cover up MI5 involvement in benefiting from torture and not as he claimed, to protect the integrity of the highly prized US-UK intelligence relationship.
This searing judgment whether fully disclosed or not, raises tension between the judiciary and government over anti terrorism and human rights to a new pitch.