UK court reveals how US threatened to stop intelligence sharing if court would reveal rendition evidence

In an extraordinary ruling, two British judges sitting on the case of Binyam Mohamed have revealed how the US government has “threatened” the British government with reprisals should the British reveal evidence that American agents were involved in his rendition and torture. Evidence of how Mohamed was tortured, and what MI5 knew about it, must remain secret because of serious threats the US has made against the UK, the high court ruled today. (Ruling here.)

The judges made clear they were deeply unhappy with their decision, but said they had no alternative as a result of a statement by David Miliband, the foreign secretary, that if the evidence was disclosed the US would stop sharing intelligence with Britain. That would directly threaten the UK’s national security, Miliband had told the court.

Yet, as Clive Stafford Smith points out:

“The judgment is canny. If the judges had ordered the material to be revealed, over the government’s objection, there would have been a protracted appeal and nobody would have learned anything for months or years. Instead, they have placed both the British government and the Obama administration in the immediate and uncomfortable position of having to confess whether they want to cover up evidence of torture.”

The judges end the decision with a plea to President Obama to reconsider President Bush’s remarkable policy of retribution against anyone who might reveal American crimes.

107. If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain.

However, the judges said lawyers for Miliband had told them the threat to withdraw cooperation remained in place under the new administration of President Barack Obama. Shami Chakrabarti, director of human rights group Liberty, said it was “alarming and surprising” that the new US administration maintained the threat against the Foreign Office.

No fewer than eight times, the judges refer to the American “threat” made against their closest ally, the British. Mohamed v. Secretary of State, at (para’s 62, 70, 73, 76, 76, 76, 77, 107). The British intelligence services have 42 documents that apparently demonstrate abuse of Binyam Mohamed a British resident.

The judges said today that they found it “difficult to conceive” the rationale for the US’s objections to releasing the information, which contained “no disclosure of sensitive intelligence matters” about how US officials treated detainees.

“Indeed, we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials … relevant to allegations of torture and cruel, inhumane or degrading treatment, politically embarrassing though it might be.”

David Davis, the Conservative MP and former shadow home secretary, said ministers must urgently respond to the allegations that Britain was complicit in torture, demanding a Commons statement from the government on the ruling, calling it “a matter of utmost national importance”. Davis said in The Guardian:

“The ruling implies that torture has taken place in the [Binyam] Mohamed case, that British agencies may have been complicit, and further, that the United States government has threatened our high court that if it releases this information the US government will withdraw its intelligence cooperation with the United Kingdom.

According to Reprieve:

“The US is under a legal duty to investigate the crime of torture, not to suppress evidence that it happened,” said Reprieve Director Clive Stafford Smith. “And the UK has a similar duty. For the Foreign Secretary to give in to these illegal demands by the Bush Administration is capitulation to blackmail, pure and simple. It is hardly Britain’s finest hour. As the judge’s say, it is up to President Obama to put his money where his mouth is. He must repudiate his predecessor’s reprehensible policy.”