They insist, moreover, that his case is an urgent priority, because he is about to be charged before a Military Commission in Guantánamo -- the much-criticized system of trials for “terror suspects” that was conceived by the US administration in November 2001 -- and they desperately need the exculpatory evidence in the possession of the British government to assist in his defence, and to prove his innocence.
A refugee from Ethiopia, who arrived in the UK in 1994 and was later granted indefinite leave to remain, Binyam Mohamed was working as a cleaner in an Islamic Centre in west London in 2001, and attempting to recover from a drug problem, when he decided to travel to Afghanistan to see what the Taliban regime was like, and, he hoped, to steer clear of drugs because of the Taliban’s reputation as fierce opponents of drug use.
He came to the attention of both the American and British intelligence services in April 2002, when he was seized by the Pakistani authorities as he tried to board a flight to London. Although he had a valid airline ticket, his passport had been stolen, and, rather foolishly, he had borrowed a British friend’s passport instead.
In the heightened tension in Pakistan at the time -- just days after Abu Zubaydah, an alleged senior al-Qaeda operative, was captured in Faisalabad -- Binyam was immediately regarded with enormous suspicion by the American agents who visited him in the Pakistan prison in which he was held.
Although he later reported to his lawyer -- Clive Stafford Smith of the legal action charity Reprieve ( http://www.reprieve.org.uk/), which represents 35 prisoners in Guantánamo -- that the British checked out his story, and confirmed that he was a “nobody,” the Americans were not convinced, and decided to send him to Morocco, where he could be interrogated by professional torturers who were not bothered about international treaties preventing the use of torture, and who were equally unconcerned about whether evidence of their activities would ever surface.
Speaking of his time in Morocco, where he was held for 18 months, Binyam told Stafford Smith that he was subjected to horrendous torture, which, included, but was not limited to having his penis cut with a razor on a regular basis. In spite of this, the regular beatings and other torture that he did not even want to talk about, Binyam said that his lowest moment of all came when his torturers produced evidence of his life in London, which could only have come from the British intelligence services, and he realized that he had been abandoned and betrayed by his adopted homeland.
After Morocco, Binyam was transferred to Afghanistan, where he endured further torture in the “Dark Prison,” a secret “black site” near Kabul, run by the CIA, which was a grim recreation of a medieval dungeon, but with the addition of non-stop music and noise, blasted into the pitch-dark cells at an ear-piercing volume.
Moved from here to the main US prison at Bagram airbase, where at least two prisoners were murdered by US forces, Binyam was finally put on a plane to Guantánamo in September 2004, two and a half years after his ordeal began.
In Guantánamo, he was put forward for a Military Commission in November 2005, and made one memorable appearance before the military court, when he held up a hand-written placard declaring that the Commissions were in fact “Con-Missions,” but in June 2006 the judge in his case was spared further embarrassment when the entire system was ruled unconstitutional by the Supreme Court.
Revived later that year by a barely sentient Congress, the trials have since struggled to establish their legitimacy, and have yet to proceed beyond arraignment and pre-trial proceedings, with the exception of the case of the Australian David Hicks, who accepted a plea bargain last March in order to return home to serve a desultory nine-month sentence.
In recent months, however, the administration, which boldly states that it intends to try between 60 and 80 of the remaining 273 prisoners, has stepped up the rate at which new prisoners are being charged. In an attempt to save Binyam from a second dose of the Commissions, his lawyers at Reprieve, together with solicitors from Leigh Day & Co., decided that the most constructive and innovative way to secure Binyam’s release was to put pressure on the British government.
The letter to the UK government
Armed with evidence from flight logs, which confirmed that CIA planes had flown from Pakistan to Morocco in July 2002, and from Morocco to Afghanistan in January 2004, as Binyam said they had, and with numerous accounts of British complicity in his interrogations, and knowledge of his rendition to torture, the lawyers submitted a list of requests to David Miliband, the Foreign Secretary, at the end of March.
The extensive list of items requested included any evidence relating to UK knowledge of Binyam’s forthcoming rendition while he was held in Pakistan from April to July 2002, including “the identity of the US agents involved, so that they can be traced and interviewed or subpoenaed,” and any evidence relating to Binyam’s claim that representatives of the British intelligence services told him in Pakistan that they knew that he was a “nobody,” which, the lawyers stated, led them to “assume that the UK intelligence services and police have carried out investigations in to Mr. Mohamed’s activities whilst in the UK.” “We believe,” they added, “that such evidence will show that he does not represent a terrorist threat,” and that as such “it forms a necessary part of his defence.”
The lawyers also asked “to interview and take statements from the UK agents who (it is conceded) spoke to Mr. Mohamed whilst he was detained in Pakistan,” and who, Binyam stated, “informed him that he was going to be rendered to an Arab country for torture.” In December 2005, Jack Straw, who was the Foreign Secretary at the time, did indeed admit, in testimony to the Foreign Affairs Select Committee, that UK Security Service officers visited Binyam while he was in Pakistani custody, and Binyam’s recollections of that encounter were noted by Clive Stafford Smith during a meeting at Guantánamo:
“They gave me a cup of tea with a lot of sugar in it. I initially only took one. ‘No, you need a lot more. Where you’re going, you need a lot of sugar.’ I didn’t know exactly what he meant by this, but I figured he meant some poor country in Arabia. One of them did tell me I was going to get tortured by the Arabs.”
As Binyam’s lawyers pointed out, “Such evidence will be central to the defence of Mr. Mohamed because any evidence obtained as a result of torture is inadmissible.”
The lawyers also requested “information about Mr. Mohamed’s life in the United Kingdom that could only have come from UK intelligence agencies or other government sources,” which, as Binyam pointed out, caused him particular distress in Morocco, when it was used by his torturers. According to Stafford Smith, this information included “personal details about his life in the UK, such as details of his education, the name of his kick-boxing trainer and his friendships in London, which he had never mentioned during interrogations, and that could only have originated from collusion in the process by the UK security or secret intelligence services.”
In addition, the lawyers requested any evidence about rendition flights that stopped on the British territory of Diego Garcia ( http://www.indymedia.org.uk/en/2007/10/384112.html) in the Indian Ocean, which is leased to the United States. After five years of denials, the British government finally admitted in February that two flights had indeed stopped at Diego Garcia ( http://www.indymedia.org.uk/en/2008/02/392068.html), and Binyam’s lawyers requested information about these flights, pointing out that one of the flights had “subsequently stopped in Morocco at the time that Mr. Mohamed was there,” and that it was, therefore, “almost certainly (a) taking another prisoner to Morocco for torture; or (b) taking US personnel there who were involved in Mr. Mohamed’s interrogation process.”
The lawyers also requested any evidence relating to Binyam’s time in the “Dark Prison” in Kabul, where, they noted, “it seems highly probable that the UK government has details of the conditions that prevailed there,” because various British residents -- including Bisher al-Rawi and Jamil El-Banna, who returned to the UK from Guantánamo last year -- were also held there, and any evidence relating to Binyam’s time in Bagram, where other British prisoners were also held.
The lawyers’ final request was for access to Binyam’s medical records from Guantánamo. They noted that these were “relevant to the question of torture, and Mr. Mohamed’s current physical and mental condition,” and added that, although the Guantánamo authorities have given the UK government access to Binyam’s records, they have refused to provide them to Stafford Smith. “The UK should provide a copy now,” they wrote, “or provide whatever information or documents they have recording the contents of the medical records.”
The lawsuit filed on Tuesday by Reprieve and Leigh Day & Co. was triggered when lawyers for the government responded to the letter described above by refusing to hand over any of the evidence requested by Binyam’s lawyers, claiming that “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted,” and adding, “it is HM Government’s position that … evidence held by the UK government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by Binyam’s lawyers.
The government lawyers proceeded to claim that Binyam’s lawyers did not “provide any evidence” to support their assertion that “such alleged information or assistance ‘was subsequently used in the torture of [Mr. Mohamed],’” to which Reprieve and Leigh Day responded by pointing out that Binyam’s allegation that UK sources provided information to his torturers in Morocco was “found credible” by the Intelligence and Security Committee (IRC), a committee established in the UK Intelligence Services Act 1994, and empowered to examine the expenditure, administration and policies of MI5, MI6 and GCHQ. Binyam’s lawyers pointed out that the government had ignored the conclusion of the IRC’s Rendition Report in 2007, when the committee had explicitly stated, “There is a reasonable probability that intelligence passed to the Americans was used in [Binyam Mohamed]’s subsequent [Moroccan] interrogation.”
They also cited the particular passage from Binyam’s statement to Clive Stafford Smith, in which he spoke about the interrogation in Morocco that contained information that could only have come from the British intelligence services:
“Today I was questioned about my links with Britain. The interrogator told me, ‘We have been working with the British, and we have photos of people given to us by MI5. Do you know these?’ I realized that the British were sending questions to the Moroccans. I was at first surprised that the Brits were siding with the Americans. I sought asylum in Britain rather than America because it’s known as the one country that has laws that it follows. To say that I was disappointed at this moment would be an understatement.”
It remains to be seen, of course, if this novel approach taken by Binyam’s lawyers will bear fruit, but it seems plausible, as it is hardly in the interests of the British government to run the risk of further embarrassing disclosures. The lawsuit may, therefore, put pressure on the politicians to step up their efforts to secure Binyam’s return to Britain -- to face charges in the UK, if any can be found that will stick to the “nobody” from west London -- rather than to allow him to be tried in a much-criticized system in Guantánamo that threatens to embarrass both the British and the American governments.
Andy is the author of “The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison” ( http://www.andyworthington.co.uk/the-guantanamo-files/).