Top judge: Binyam Mohamed case shows MI5 to be devious, dishonest and complicit in torture

Legal defeat plunges Security Service into crisis over torture evidence, and it is revealed that judge removed damning verdict after Foreign Office QC's plea

* Richard Norton-Taylor and Ian Cobain
* guardian.co.uk, Wednesday 10 February 2010 21.40 GMT


MI5 faced an unprecedented and damaging crisis tonight after one of the country's most senior judges found that the Security Service had failed to respect human rights, deliberately misled parliament, and had a "culture of suppression" that undermined government assurances about its conduct.

The condemnation, by Lord Neuberger, the master of the rolls, was drafted shortly before the foreign secretary, David Miliband, lost his long legal battle to suppress a seven-paragraph court document showing that MI5 officers were involved in the ill-treatment of a British resident, Binyam Mohamed.

Amid mounting calls for an independent inquiry into the affair, three of the country's most senior judges – Lord Judge, the lord chief justice, Sir Anthony May, president of the Queen's Bench Division, and Lord Neuberger – disclosed evidence of MI5's complicity in Mohamed's torture and unlawful interrogation by the US.

So severe were Neuberger's criticisms of MI5 that the government's leading lawyer in the case, Jonathan Sumption QC, privately wrote to the court asking him to reconsider his draft judgment before it was handed down.

The judges agreed but Sumption's letter, which refers to Neuberger's original comments, was made public after lawyers for Mohamed and media organisations, including the Guardian, intervened.

They argued that Neuberger had privately agreed with Sumption to remove his fierce criticisms without giving then the chance to contest the move.

In his letter, Sumption warned the judges that the criticism of MI5 would be seen by the public as statements by the court that the agency:

• Did not respect human rights.

• Had not renounced participation in "coercive interrogation" techniques.

• Deliberately misled MPs and peers on the intelligence and security committee, who are supposed to scrutinise its work.

• Had a "culture of suppression" in its dealings with Miliband and the court.

Sumption described Neuberger's observations in his draft judgment as "an exceptionally damaging criticism of the good faith of the Security Service as a whole".

His letter also refers to the MI5 officer known as Witness B, who is understood to have interrogated Binyam Mohamed in Pakistan in 2002. Witness B gave evidence in the hearings and is now at the centre of a Scotland Yard investigation. Sumption's letter implies that Neuberger did not believe that Witness B was acting alone and that the judge believed that Witness B's conduct was "characteristic of the service as a whole".

The court's final ruling forced the Foreign Office to publish a seven-paragraph summary of 42 classified CIA documents that were handed to MI5 before Witness B travelled to Pakistan to interrogate Mohamed. These show that MI5 was aware that Mohamed was being continuously deprived of sleep, threatened with rendition and subjected to previous interrogations that were causing him "significant mental stress and suffering". If administered in the UK, the summary says, it would clearly be in breach of undertakings about interrogation techniques made by the British government in 1972.

The three judges referred to a recent case in a US court where the judge found Mohamed's claims about how he was tortured to be truthful. This vindicated his assertion that "UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of the USA authorities".

There were renewed calls tonightfor an inquiry into MI5's involvement in torture overseas and into government policies after the 9/11 attacks.

Miliband told MPs that the ruling was leading to a "great deal of concern" in the US. In a statement to the Commons he said he had fought to prevent the release of the information to defend the "fundamental" principle that intelligence shared with the UK would be protected.

The Foreign Office claimed tonightthat the criticisms in the draft judgment had been "unsubstantiated", and denied that Sumption's approach to the court had been intended to suppress criticism of MI5. Nevertheless, the court is to convene tomorrow to reconsider whether to publish all or parts of the 21-line paragraph from the draft judgment in which the criticisms appear.

The editor of the Guardian, Alan Rusbridger, wrote to the court after the Sumption letter came to light on Monday night. He said today: "It is good news that – after a challenge from the Guardian and other news organisations – the courts have finally ordered the government to reveal evidence of MI5 complicity in torture. This is a watershed in open justice in an area in which it is notoriously difficult to shine a light. But it was extremely disturbing that the government's lawyers made a successful last-ditch attempt to get the master of the rolls to rewrite his judgment."

Top judge: Binyam Mohamed case shows MI5 to be devious, dishonest and complicit in torture | World news | The Guardian


---


Milband was at his most excruciatingly ludicrous on Newsnight last night, still peddling the line that the truth should have been suppressed to protect our good name; i.e. that we are at risk of piercing the illusion of obedience to the law. He also mendaciously claimed that the FO had gone to great lengths to get BM released, despite this being demonstrably untrue, and claimed that there was "deep concern" in the US about matters coming to light here, despite the fact tht they did come to light becuase they had been discussed in a US court case.

Binyam Mohamed: a shameful cover-up

The court of appeal has highlighted the way our leaders have placed the suppression of torture revelations above citizens' welfare


o Clive Stafford Smith
o guardian.co.uk, Wednesday 10 February 2010 17.14 GMT

In a scathing judgment running to 84 pages, the court of appeal has slapped the government down in the case of Binyam Mohamed. As many will recall, Mohamed was seized by the Pakistanis in April 2002, turned over to the Americans for a $5,000 bounty, abused for three months, rendered to Morocco, tortured with razor blades to the genitals, rendered on to the "Dark Prison" in Kabul, tortured some more, and then held for five years without charge or trial in Bagram air force base and Guantánamo Bay. The verdict of the court – comprised of three of the country's most senior judges – underlines the shameful way in which, in this case and beyond, our political leaders have placed their desire to suppress embarrassing revelations above the welfare of citizens.
Clive Stafford Smith: 'The government is still trying to suppress evidence' Link to this audio

With Mohamed's torture established as a judicial fact, the judges queried what reason there could be to cover up the now-notorious "seven paragraphs"? This summary was removed from the original opinion when the government cried national security. The material is important – it adds direct evidence that the Americans wrote down their torture tactics, and that a British agent knew Mohamed was being abused before he flew to Pakistan to join the interrogation – but represents only a few crumbs of the overall criminal enterprise.

Yet two years into the litigation, the foreign secretary, David Miliband, still argued that a court would be "irresponsible" to reveal the material – strong language when aimed by the diplomatic service at the judicial branch.

"No advantage is achieved by bandying deprecatory epithets," the judges replied, before passing out a few polite insults themselves. The foreign secretary's intransigence was "irrational" and lacking in "commonsense". With the original high court judges, that makes five independent members of the judiciary against one US-dependent politician.

So what is truly at stake? At its most significant level, the decision focused on a legacy of the "war on terror" that is more bitter even than abusing prisoners: the conflation of national security with political embarrassment. The fact of torture is horrific; but the concerted effort of British and American officials to cover up the torturers' crimes is far more insidious. How can we learn from history, and avoid repeating mistakes, if we do not know what that history is?

This is a high-profile example of a national disease. Because we fear for our safety and cherish our privacy, politicians argue that we will lose both if we do not sacrifice our right to free speech, our "right to know". We should, in other words, simply trust them.

This is the path that British politicians have been treading all too frequently. Nobody would have known that three Labour MPs committed expense fraud, or that scores of others spent money on the ethical equivalent of a duck pond, if we were only allowed to see the redacted version of the MPs expenses. The claim in that case was "privacy".

The seven paragraphs should rate little more than a footnote in the full story, yet that is a tale that remains untold. The court tells us that a "vast body" of government reports about Mohamed's abuse remain secret. I was in Washington last week reviewing a similarly "vast body" of evidence indicating British complicity in the abuse of another Guantánamo prisoner, Shaker Aamer. Not a word of that has been revealed, again on grounds of national security.

Since I am not as temperate as a judge, I would not characterise the arguments made by Miliband as "irrational": after beginning with the term "foolish," I fear I would descend to epithets unfit to publish here . Suppressing any evidence of government criminality on grounds of national security sets a very dangerous precedent. As the saying goes, those who would sacrifice their freedoms to ensure their safety deserve neither – and can expect to lose both.

Binyam Mohamed: a shameful cover-up | Clive Stafford Smith | Comment is free | The Guardian

"UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of the USA authorities".

am i right in thinking that the only thing standing between the UK and a breach of the geneva conventions now is the definition of "enemy combatants" vs "prisoners of war"?

__________________
The New Topical: current affairs, current events, politics, political, culture, cultural, ethics & economics discussion debate forum.

Well, that and the fact that we're mostly pretty bored of Iraq and terror and everything. I put it down to reduced attention spans in the digital age. Communists kept us amused for half a century, but we just haven't got that level of patience these days.

__________________
Standard disclaimer: the disgusting statements contained in this post are the views of the poster, and unless specified do not represent the views of the moderators or the site's owners.

The "enemy combatant" status is a joke anyway, essentially a US legal fiction. And in this case, it is no longer even being claimed that he was seized in battle, rather then being sold to the Americans, so even the fiction would not apply to him.

From the Guaardian

Binyam Mohamed storm widens as Johnson defends MI5 over torture

Home secretary blasts Lib Dems and media after Guardian revealed how government suppressed scathing court ruling

Richard Norton-Taylor and Ian Cobain
guardian.co.uk
Friday 12 February 2010 19.50 GMT


The political storm over allegations of MI5 complicity in torture escalated tonight after Alan Johnson, the home secretary, accused the media of publishing "groundless accusations" and commentators of spreading "ludicrous lies" about the Security Service.

As defence lawyers prepared to challenge the government's success in suppressing severe criticism of MI5 officers made by one of Britain's most senior judges, the Liberal Democrat leader, Nick Clegg, pointed the finger at the "very top of government" saying senior ministers had probably known about claims of Britain's involvement in torture but failed to take action to stop it.

The home secretary's intervention came as Kim Howells, the chairman of the parliamentary Intelligence and Security Committee (ISC), came out in support of Jonathan Evans, the director general of MI5, dismissing any suggestion that he had been misled by the Security Service. He said he had seen no evidence that MI5 had colluded in torture.

That is at the centre of this week's appeal court ruling, which disclosed CIA-based intelligence showing that MI5 knew that British resident Binyam Mohamed had been subjected to treatment "at the very least cruel, inhuman, and degrading".

The appeal court, presided over by the Lord Chief Justice Lord Judge, also referred to a recent US court case where the judge vindicated Mohamed's claims that "UK authorities" had been "involved in and facilitated the ill-treatment and torture" to which he was subjected while under the control of the US.

But it was a passage written into the draft judgment by Lord Neuberger, the Master of the Rolls, referring to MI5 officers having "deliberately misled" parliament and sharing a "culture of suppression" which prompted Jonathan Sumption QC to demand its removal. The phrases are contained in Sumption's letter which has been released.

Evans contested the allegations in an article in today's Daily Telegraph. But in a carefully-worded passage wrote: "We did not practise mistreatment or torture and do not do so now, nor do we collude in torture or encourage others to torture on our behalf." Johnson repeated these words in a BBC interview, adding: "People can make their arguments and their assertions, but that shouldn't be taken by some commentators in the media as true simply because someone has said it's true."

The home secretary accused the former Tory shadow home secretary David Davis of spreading a "gross and offensive misrepresentation of the truth" and called on his party's leadership to distance itself from the remarks.

In a BBC interview on Thursday, Davis said there were 15 other cases which suggested a culture of collusion or complicity in torture by MI5 and MI6. He said the alleged mistreatment of Binyam Mohamed – who says his genitals were repeatedly cut, and he was hung by his wrists and beaten until he was sick – "seems like something the Gestapo got up to".

Clegg demanded to know if ministers were told the US had changed its rules on torture after the 9/11 attacks. Either the government knew, or the Security Service was engaged in a cover-up, he claimed. He said: "We must know who in Britain knew the US had changed the rules on torture, when they knew and what action they took. We can only conclude that the Security Services either kept the information to themselves, or they informed ministers who failed to act immediately. "Both of these would suggest at best a cover-up and at worst collusion in torture. Knowledge of Britain's potential complicity in torture looks likely to have gone to the very top of government," he said.

Responding to court evidence that MI5 had withheld documents from the ISC, Howells said Evans had contacted him on Thursday to assure him that MI5 had not withheld from the committee documents relating to Mohamed's treatment by the US authorities. In a joint statement with the senior Tory on the ISC, Michael Mates, Howells said: "The director general has confirmed to us this evening that no document concerning Binyam Mohamed and his treatment by the US authorities has been withheld from us." Any claim that the intelligence services were colluding in torture was "a calumny and a slur and it should not be made".

These pesky media outfits! What are they thinking? Can't they learn from their American brethren to never question their government?

From the Independent

Ministers and agencies in defence of the indefensible

The case of Binyam Mohamed has exposed divisions and distrust

Saturday, 13 February 2010


It is, as the head of MI5, Jonathan Evans, noted at the start of his article in yesterday's Daily Telegraph, a rare departure for the intelligence services to comment in public on their activities. It must be even more rare, perhaps unique, for such an article to appear on the same day as a joint open letter on the same subject signed by the Foreign and Home Secretaries and published in this newspaper.

This united front suggests two things. It suggests, first, a shared concern that no one be able to drive a wedge between the Government and the intelligence agencies. It suggests, second, a deep sense of vulnerability on the part of the intelligence services – a vulnerability that, as they would have it, could impair British security.

The immediate impetus for both the article and the open letter was the judgment handed down by the Court of Appeal earlier in the week that found in favour of publishing parts of a document that the Government had wanted to keep confidential. The particular paragraphs related to the mistreatment of the British resident, Binyam Mohamed, in Pakistan. And it showed that British officials knew that what he was being subjected to, while stopping short, strictly speaking, of torture, breached undertakings that Britain had signed up to.

But the court judgment itself was probably not the only, or even the main, reason why MI5 and the Government so quickly and forcefully voiced their disquiet. What seems to have most concerned them was a section that was dropped from the final version of the ruling following an intervention by a government lawyer, but subsequently saw the light of day. That paragraph accused the intelligence services of perpetuating a general "culture of suppression" and suggested that MI5 might have misled the parliamentary Intelligence and Security Committee, which is responsible for its oversight.

Such charges were dynamite. Any admission of divisions between the security services and the Government could threaten the integrity of efforts to combat terrorism, while the charge of misleading Parliament would suggest that the intelligence services were essentially out of control. Neither could be allowed to stand.

At a state level, it was clearly important, even paramount, for MI5 and the Government to defend themselves. But the fact is that the observations to which they took exception were left out of the court's final judgment. What is more, at a more basic level, they are a distraction from the immediate matter in hand. Which is this: what did ministers and the intelligence services know about the treatment of Mr Mohamed, and when did they know it? And if, as it now appears, they knew at the time that his treatment contravened specific British undertakings, why did they do nothing about it?

David Miliband has said, and repeated in his letter, that the only reason for wanting to keep this information secret was that it had been obtained under the intelligence-sharing agreement with the United States. In other words, it was not the Government's to share. But the court's ruling was that Mr Mohamed's rights trumped this particular defence of national security, which it saw a pretext for keeping uncomfortable information under wraps. It is a supreme irony that one redacted paragraph – from a judgment that allowed publication of seven redacted paragraphs – revealed something even more sensitive than they did: the depth of distrust in our security services that this aspect of the US "war on terror" has left in its wake.

From the Guardian

A green light for torture

It's no good scapegoating a functionary. The villain is the person who sat at the desk setting the rules

Clive Stafford Smith
guardian.co.uk
Monday 15 February 2010 22.00 GMT


As senior government politicians watch the scandal surrounding Britain's complicity in torture spiralling out of their control, one revelation leads inexorably towards the next.

Last week, Jonathan Evans, the director general of MI5, sallied forth from his secret chamber to do battle on the pages of the Daily Telegraph. It was false, he said, that agents in his organisation "collude in torture". It was probably inevitable that this rare apparition – a spook on the front pages – swivelled attention to Evans himself. Was he protesting rather loudly?

The key moment in the whole torture scandal came on 10 January 2002, when an anonymous agent in the field "reported back to London his 'observations on the circumstances of the handling of [a] detainee by the US military before the beginning of [his own] interview'." The officer – perhaps it was witness B, the agent who has become infamous for his interrogation of Binyam Mohamed – obviously had qualms about his responsibility in the face of prisoner abuse.

Overnight, London replied: "You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given that they [the prisoners] are not within our custody or control, the law does not require you to intervene to prevent this." In other words, see no evil, hear no evil.

"An allegation has been made," Evans wrote in the Telegraph, "that one of my officers might have committed a criminal offence." This is not strictly the case. I have always had some sympathy with the field agent involved. The villain of the piece was not the functionary, but the person who sat at the desk setting the rules.

And that policymaker does appear to be a villain. It is not permissible to act the ostrich in the face of medieval mistreatment of prisoners. The Convention Against Torture is explicit that it is a crime to commit "an act … which constitutes complicity … in torture". The courts have long since concluded that British officers were, indeed, deeply enmeshed in the abuse.

The London supervisor was also obliged by the CAT to "ensure that education and information regarding the prohibition against torture are fully included in the training of … persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment".

That education could not – as a matter of either law or morality – include such a blind-eye directive. So who was that policymaker?

These recent revelations lead to Evans himself as the most likely candidate. I do not mean that anyone should prejudge him – he has the right to put his side, rather than merely assert that the focus is on his agent. Perhaps he will say that the policy was proposed or approved by his political overseers.

Meanwhile, though, the circumstantial evidence is rather strong. According to his biography on the MI5 website, 10 days before 11 September 2001, Jonathan Evans "was appointed to the security service's management board as director of international counter terrorism". In other words, he was in charge of witness B. If he did not issue the policy directive himself, then, he had to be closely involved in its promulgation.

The investigation into torture has never been about finding a lowly scapegoat to take the blame. We must identify those who set the rules. Once this has been done, we must understand why they strayed so far from our principles, and establish regulations to avoid this in future.