Binyam has been imprisoned without trial for six years and four months -- first in Pakistan, then in Morocco, where he was tortured for 18 months on behalf of the US authorities, then for nine months in the “Dark Prison” near Kabul, a secret prison run by the CIA and at a US military prison in Bagram airbase, and finally, since September 2004, at Guantánamo.
The judicial review that took place last week came about after Binyam’s lawyers -- at Leigh Day & Co. and Reprieve ( http://www.reprieve.org.uk/), the legal action charity that represents 30 Guantánamo prisoners -- requested, in April, that the British government hand over any evidence in its possession regarding its knowledge of Binyam’s long ordeal, which might provide invaluable exculpatory evidence to assist Binyam in his anticipated trial ( http://www.indymedia.org.uk/en/2008/05/398635.html).
The lawyers were specifically seeking information relating to Binyam’s rendition from Pakistan to Morocco, which was known about in advance by British agents, who visited him in Pakistani custody and offered him a heavily-sugared cup of tea, telling him, “Where you’re going, you need a lot of sugar.” They were also concerned to establish the extent of British involvement in his subsequent torture in Morocco, where, as he told Clive Stafford Smith, Reprieve’s Director, during a visit at Guantánamo, his lowest point came not as the result of his frequent physical torture (which included having his genitals regularly cut with a razor blade), but when his captors asked him questions about his life in London, which could only have come from the British intelligence services, and he realized that he had been betrayed by the country in which he had sought asylum as a teenager.
The trigger for the judicial review was the cold-hearted response of the British government’s lawyers to the request filed by Binyam’s lawyers. The government’s legal advisers claimed 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 that “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 his British lawyers.
Approving an “expedited” judicial review at the start of June (meaning, it would appear, that he understood the urgency of the case), Mr. Justice Saunders explained, “If it is correct that in the course of an interrogation, in which material supplied by the Defendant [HM Government] was employed, the Claimant [Binyam Mohamed] was tortured, then it is arguable that there is an obligation to disclose material which may assist Claimant in establishing before the American Military Court that he was tortured. Whether the Court should exercise its discretion not to order disclosure can only be determined at a full hearing” ( http://www.indymedia.org.uk/en/2008/06/400383.html).
With that final caveat, it was by no means certain that the judicial review would go Binyam’s way, but on Monday the sparks began to fly almost immediately. Dinah Rose QC, Binyam’s counsel, wasted no time in telling Lord Justice Thomas and Mr. Justice Lloyd Jones, as the Guardian described it, that “the security and intelligence agencies were ‘mixed up in wrongdoing’ in cooperating with the US in the unlawful treatment” of Mr. Mohamed, and added that, in return for information provided by the British intelligence services to their US counterparts, the US “provided the UK with the fruits of his interrogation” ( http://www.guardian.co.uk/world/2008/jul/29/guantanamo.terrorism).
Rose explained to the judges that a British agent, identified only as “witness B,” made a “veiled threat” to Binyam, while he was in Pakistani custody, to encourage him to “cooperate with his interrogators when the officer saw him after he was first captured in Pakistan.” The implication, she noted, was “we won't help you unless you confess.” She added that MI5 then “repeatedly” supplied the US authorities with detailed information about Mr. Mohamed’s life in London for US officials to use in his interrogation, even though, as she pointed out, the British officials “did not press the US to tell them where Mohamed was being held after he was transferred from Pakistan, and in what conditions.”
Rose also declared that the government “must have known the treatment Mohamed was likely to face [in Pakistan], ‘given the history of the Pakistan authorities.’” This provoked a response from the government’s representatives, who, rather feebly, perhaps, in light of recent revelations ( http://www.guardian.co.uk/world/2008/apr/29/humanrights.uksecurity1) that the British government has colluded with the Pakistani authorities in anti-terror operations to a shocking extent, “did not dispute that Mohamed was held incommunicado for three months in Pakistan but did not accept the conditions in which he was held there were unlawful.”
After this promising start, Tuesday’s session was even more explosive. Although the hearing was only scheduled for two days, it was extended after the first half of the day was taken up in a closed court cross-examination of “witness B,” which observers interpreted as meaning that the judges were drilling mercilessly for the truth.
The second half of the day involved a similarly extraordinary scenario. This time the judges, having asked the government to vouch for the independence of Susan Crawford, the Military Commissions’ Convening Authority, who is responsible for overseeing the Commission process, brandished a letterhead which revealed that Ms. Crawford actually works for the US Department of Defense, and declared that, in light of this seemingly clear evidence of political interference in what is supposed to be an impartial trial system, they would be devoting time in their deliberations to examining whether or not the Military Commissions can be regarded as a fair process.
To everyone’s surprise, almost the whole of the rest of the week’s sessions were taken up with the continued closed court cross-examination of “witness B.” Considering that observers had indicated at the start of the judicial review that the cross-examination would probably only last for half an hour, the only rational conclusion that could be drawn was that the allegations of “wrongdoing” mentioned by Dinah Rose QC were being fully explored by the judges -- possibly in a criminal context -- and this undoubtedly explains why, on arriving at the court earlier in the week, “witness B” had brought his own lawyer with him.
Summing up on Friday, Ben Jaffey, another of Binyam’s lawyers, revisited the complaints made by Dinah Rose in light of the week’s developments. As the Guardian explained, Jaffey highlighted disturbing contradictions in MI5’s statements, telling the court that in his witness statement an MI5 officer had said that Britain's security and intelligence agencies “did not know” where Mr. Mohamed was after he was flown out of Pakistan in 2002, even though MI5 had explicitly told the Intelligence and Security Committee that it believed that he was in US custody. It was as a result of this statement, Jaffey said, that the committee concluded, in its report on Mr. Mohamed’s case last year, that it was “understandable” that MI5 did not seek assurances about his treatment. Jaffey added that the committee was “not given the full picture,” and delivered a final criticism of MI5, pointing out that, although the intelligence service had indicated at the time that he was in US custody, “it now conceded that he was in a ‘location unknown’” ( http://www.guardian.co.uk/world/2008/aug/02/humanrights.guantanamo).
Although the US authorities are still maintaining a wall of silence over Binyam’s treatment -- with the Associated Press reporting that, on Friday, the Pentagon “refused to say … whether Mohamed was ever taken to Morocco” -- the British judges are clearly unimpressed with a situation in which, even after six years, denials and evasion remain the norm. As the judicial review came to an end, Lord Justice Thomas said that Binyam’s case raised “many and very troublesome issues.”
The judges are expected to deliver their ruling in two weeks’ time.
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/).