John Jackson (London, Mishcon de Reya): The case of Binyam Mohamed (BM) is the latest in a long line of disputes concerning terrorists, alleged terrorists and their treatment to come before the courts. The judgement published on Wednesday - the last (maybe not) in a series of judgements in this case - is extremely interesting and addresses what the Divisional Court (with two judges sitting) believes to be ‘a novel issue which requires balancing the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.'. Were it not contained in 33 closely argued pages,I would recommend the judgement as ‘required reading' to all participants in the forthcoming Convention on Modern Liberty. It discusses many issues relevant to the Convention and will certainly feature in the session addressing the question ‘Who decides, the politicians or thejudges?'. Lord Bingham, a member of the panel opening that session, is quoted extensively in the BM judgement.
Briefly, the facts giving rise to the case and recited in the judgement are these:-
1. BM, an Ethiopian national, originally (and still for legal purposes) a UK resident and for some time past a prisoner in Guantanamo Bay, was arrested in Pakistan in 2002.
2. He was held incommunicado,initially in Pakistan and then at secret and undisclosed locations, until 2004.
3. In the course of 2004, BM made confessions to US officials as to his involvement in Al-Qaida and terrorism.
4. BM later alleged that those confessions were made as a result of torture or cruel, inhuman or degrading treatment to which he had been subjected whilst being interrogated by US officials or others acting on their behalf between 2002 and 2004. During this period he was subjected to extraordinary rendition to Morocco where,he also alleged, torture was continued in an extreme form.
5. In 2008, BM's lawyers commenced proceedings against the UK Foreign Secretary seeking information to assist in the defence of charges brought against him in the US and to be considered, subject to approval by a judicial Convening Authority, by a Military Commission.
In the course of the initial hearing the UK court heard evidence in private and in camera from an officer in the UK Security Service (SyS) and concluded that the SyS had facilitated interviews of BM on behalf of the US government in the knowledge of what had been reported tothem in relation to his detention and treatment in Pakistan in 2002 and thereafter when they knew he was still being held incommunicado. The court concluded further that the provision to BMs lawyers, in confidence, of information held by the UK Government, and in particular of 42 documents classified as secret, was essential if BM was to have his case fairly considered in the US. Since the court considered that the US authorities would not make the documents available in a timely way, it ordered disclosure of the 42 secret documents subject to exercise of the court's discretion and claims (by Government) to public interest immunity.
Subsequent to that judgement, and in the light of some concessions by the US authorities - they would agree to release of the 42 documents at trial by a Military Commission if such trial was approved by the Convening Authority (which, together with BM's lawyers, was not to see the documents) - the UK Foreign Secretary provided a Public Interest Immunity Certificate, supported by a Sensitive Schedule provided in camera, in which he expressed the view that the 42 documents should not be disclosed to BMs lawyers as disclosure would harm seriously the intelligence arrangements between the UK and the US. The court then said in a second judgement that the Foreign Secretary's certificate did not address the question of torture sufficiently to enable it to decide whether, contrary to the wishes of the US authorities, the 42 documents should be disclosed to BM's lawyers so that they could be used in submissionsto the Convening Authority. The significance of this was that the Convening Authority had already refused approval of trial by a Military Commission in another case because the Authority believed that evidence to be relied on had been obtained by torture.
After further proceedings in the US over some months the position was reached in which the Convening Authority had disapproved the application of the US authorities for trial of BM by a Military Commission (but in a way which left those authorities the freedom to ‘try again' with newly formulated charges). And BM's lawyers were substantially in a position to use the 42 documents before the Convening Authority if and when the US authorities did ‘try again'.
By the 22nd January, the date on which President Obama required his Secretary for Defense to ensure that no new charges should be sworn pending a review of the position of those detained at Guantamano Bay, BM had not been recharged.
The only issue then remaining for the UK court was whether to reinstate seven short paragraphs, removed from its judgements, which summarised reports by the US Government to the SyS and the Secret Intelligence Service concerning BM's detention and treatment. This summary, which the court believed was ‘highly material' to BM's allegations of his treatment and the commission of criminal offences, had been removed, pending further argument, at the request of the Foreign Secretary who had issued a further Immunity Certificate which set out his reasons why those paragraphs should not be restored and made public.
The matter had already been argued by BM's lawyers and those representing the Foreign Secretary and the court invited representations by the British media on the issue. The interest of the media may have been heightened by the marked increase in cases from which they were excluded and by the knowledge that BM and 11 others were suing the UK Government in relation, amongst other matters, to events considered by the court in the course of the BM case.
The Court proceeded on the basis (accepted by the Foreign Secretary) that the summary in the removed paragraphs gave rise to an arguable case of torture or cruel, inhuman or degrading treatment but that there was insufficient evidence to enable it to conclude that what was reported did inflict that degree of intense and cruel suffering to constitute torture.
The court accepted that the Immunity Certificate had been issued by the Foreign Secretary in good faith and that, in his judgement, there was a risk that if the paragraphs were made public the US Government might carry out a threat to re-evaluate its intelligence sharing arrangements with the UK and reduce the intelligence provided, to the serious prejudice of the UK's national security.
The court accepted also that BM had a legitimate interest in having evidence of what he believed to be serious injustice and wrongdoing made public. But it rejected the argument by his lawyers that there was an absolute bar to keeping the paragraphs out of the public domain (by an Immunity Certificate) because to do so, they said, would be to conceal evidence of serious criminality by the State which the rule of law required to be investigated and publicly adjudicated. This rejection by the court was on the grounds that it was not the UK as a state that was alleged to have facilitated serious criminality but the UK Government - the Executive branch of the State. It must be open, said the court, to find a way to compel the Executive to act in accordance with the rule of law, or to punish its officials for any wrongdoing or hold it democratically accountable if it is possible to achieve this without endangering the wider interests of the State where those wider interests may be damaged by disclosure.
The matter, said the court, had to be resolved by a balancing test which required the court to consider four questions:-
1) Is there a public interest in bringing the paragraphs into the public domain?
2) Will disclosure bring about a real risk of serious harm to an important public interest?
3) Can the real risk of serious harm to that interest be avoided or reduced by other methods or more limited disclosure?
4) If the alternatives are insufficient, where does the balance of the public interest lie?
The court answered the first two questions firmly, the third question with hesitation and postponed the answer to the fourth until it reached the end of its deliberations.
Having regard to the requirements of the rule of law, the need for free speech, democratic accountability and the vital role of the media to the proper functioning of democracy, the answer to question 1)was clearly ‘Yes'.
With regard to question 2), there was no basis on which the judgement of the Foreign Secretary as to the danger to national security could properly be questioned by the court and considerable weight should be attached to his judgement of the public interest.
On question 3), whilst the court could see the benefit in the most troubling aspects of the allegations being considered by the Intelligence and Security Committee (made up of MPs appointed by the Prime Minister and which reports to him; he may remove ‘sensitive' material prejudicial to the functioning of the security services before passing on the any of its reports to Parliament) and by the Attorney General, with a view tothe possibility of prosecution, it observed that neither option would result in the content of the paragraphs becoming public knowledge. This observation sits rather oddly with the view expressed later by the court that those options provide other constitutional means by which the rule of law, free speech anddemocratic accountability can be safeguarded, given what has already been placed in the public domain and ‘what has resulted in consequence of these proceedingsto date'.
That answer to question 3) foreshadows the courts final conclusions that the balance is best preserved by maintaining the removal of the paragraphs and that it would not be in the public interest to expose the United Kingdom to what the Foreign Secretary considers to be the real risk of the loss of intelligence ‘so vital to the safety of our day to daylife'.
In reaching those conclusions the court has denied the public three consequences which would, in its own words, have followed the publication of the paragraphs:-
1)An end to uninformed speculation as to what was in fact reported by the US Government in 2002 to have happened to one detainee whilst in incommunicado detention.
2)The facilitation, on the basis that what is summarised in the paragraphs are US Government reports, of debate on whether the treatment accorded to detainees was humane and accorded with the spirit of the Geneva Conventions and
3)The ability to address the issue of the information provided to the UK as to techniques employed by the US Government in 2002 and what was actually known about such techniques by officials of the SyS at the time.
In the light of those observations, one wonders whether the decision of the court is above criticism. Perhaps the court wonders too. The last paragraph of its judgement makes strange reading, ‘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.
There is a strange twist to the tail of this saga. The Foreign Secretary has, apparently, said that the judges were mistaken and that at no time did US authorities make the threats set out in the judgement. This is said to have been confirmed by very senior US spokespeople. If the judges were mistaken what, precisely, was the basis of the Foreign Secretary's Immunity Certificate? And, come to think of it, why is he the Minister concerned with intelligence sharing? This is beginning to look like the proverbial can of worms.