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Court
attacks US refusal to disclose torture evidence
• Information is vital to UK resident's case
• British judges say claims are unprecedented
*
Richard Norton-Taylor
* The Guardian,
* Thursday October 23 2008
The
high court yesterday condemned as "deeply disturbing" a
refusal by the US to disclose evidence that could prove a British resident
held at Guantánamo Bay was tortured before confessing to terrorism
offences.
The
court said there was "no rational basis" for the American failure
to reveal the contents of documents essential to the defence of Binyam
Mohamed, who faces the death penalty.
In
a particularly damning passage, Lord Justice Thomas and Mr Justice Lloyd
Jones said claims by Mohamed's lawyers that the US was refusing to release
the papers because "torturers do not readily
hand over evidence of their conduct" could not be dismissed
and required an answer.
The
judges said they were unaware of any precedent for such serious allegations
against "the government of a foreign friendly state and our oldest
and closest ally" as those made in this case.
The
US had not provided any explanation for its conduct,
though it had had "ample time" to do so, the judges said.
Thomas
and Lloyd said the documents provided the "only independent evidence"
capable of helping Mohamed and his defence. Suppressing the material "would
be to deny him the opportunity of timely justice in respect of the charges
against him", which was a principle dating back to "at least
the time of Magna Carta and which is a basic part of our common law and
of democratic values".
They
said David Miliband, the foreign secretary, conceded there was an "arguable
case" that Mohamed had been subjected to torture and inhuman treatment.
Yet Miliband also wanted to suppress relevant
documents, not because they would reveal any intelligence operations
but because the US claimed that if they were disclosed serious harm would
be done to "intelligence sharing" between the UK and the US.
The
judges said it was clear Britain had "facilitated" Mohamed's
interrogation when he was unlawfully detained in Pakistan before being
secretly rendered to Morocco, Afghanistan, and then to Guantánamo.
The US was using confessions made after two
years of unlawful "incommunicado detention" on charges where
the death penalty might be sought, the judges said yesterday.
They
noted that a military prosecutor at the US base had recently resigned
in protest against the treatment of prisoners, including the use of a
"frequent flyer programme".
The judges described this as a "euphemism for a sleep deprivation
programme". They added: "This is a practice which the United
Kingdom expressly prohibits."
Charges
against Mohamed- including that he was involved in a dirty bomb plot -
have been dropped, allegedly to prevent the US from revealing torture
evidence. The US authorities now planned to charge him with other offences,
the judges noted yesterday.
The
judges took the extraordinary step of inviting the media to challenge
previous decisions to hold many of the case's hearings in camera. "Although
the argument took place in closed session," they said, "the
issue is one of considerable importance in the context of open justice
[and] to the rule of law."
They
suspended proceedings pending a case in the US courts, where defence lawyers
are also trying to force disclosure. That federal court, the British judges
said yesterday, might be given explanations about US conduct "denied
to this court".
Clive
Stafford Smith, the director of the charity Reprieve, described Mohamed's
treatment by the US as a "litany of misconduct".
"First
they tortured him, then they held him for more than six years without
trial, now they want to cover up evidence that could set him free,"
he said. "What is the point of a 'special relationship' if the UK
government cannot secure basic justice for Mr Mohamed?"
Richard
Stein, one of Mohamed's lawyers, said: "The grave concerns expressed
by the court about the dealings of the Americans in this case are not
surprising, given the torture Mr Mohamed has suffered. This underlines
the British government's duty to do more than gently nudge its ally across
the Atlantic when it comes to criminal acts taken against a British resident."
Mohamed,
30, an Ethiopian national and British resident, was held in Pakistan in
2002, when he was questioned by an MI5 officer. He
was later secretly rendered to Morocco, where he says he was tortured
by having his penis cut with a razor blade. The US subsequently
flew him to Afghanistan and he was transferred to Guantánamo Bay
in September 2004.
Backstory
Attempts
to get the UK courts and parliament to take notice of the case of Binyam
Mohamed began more than three years ago. Clive Stafford Smith, director
of the charity Reprieve, told the Guardian about a hunger strike by Guantánamo
Bay prisoners, including Mohamed, who was rendered to the US base in Cuba.
Mohamed's case was taken up by the all-party parliamentary group on extraordinary
rendition, chaired by Andrew Tyrie MP
UK
citizens and residents held at Guantánamo were released between
2005 and 2007, but Mohamed was kept. This summer, the high court heard
about the way the US and British governments tried to stop the release
of evidence about his case. Defence lawyers argued that MI5 misled MPs
about his treatment. In August, in an interim judgment, the high court
ruled that MI5 had participated in Mohamed's unlawful interrogation.
FROM: http://www.guardian.co.uk/world/2008/oct/23/guantanamo-bay-human-rights
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