Will International Law help Binyam Mohamed?

John Jackson
10 February 2009

John Jackson (London, Mishcon de Reya): A careful comparison between the judgement of the Divisional Court in the Binyam Mohamed case and what David Miliband said in Parliament is revealing.

In Miliband's view, and I quote, ‘The question at issue was whether intelligence provided on a confidential basis by one state to another, in absolute trust that it will be kept secure, may be disclosed to the public by a foreign court- - ‘.

In the court's view the issue was how to balance the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.

It is important to understand that at no point did the court intend to disclose publicly the content of highly sensitive documents given to the court, very properly, by David Miliband's advisers and which, for a time, the US authorities did not want BM's lawyers to see. It only wished to include in its judgement a summary of reports by the US Government to our Security and Secret Intelligence Services on the circumstances of BM's incommunicado and unlawful detention in Pakistan and of the treatment afforded to him by or on behalf of the US Government.

The court wished to do that because the summary, which, it said, could not possibly be described as ‘highly sensitive classified US intelligence', was highly material to BM's allegation that he had been subjected to torture or cruel,inhuman or degrading treatment and to the commission of criminal offences. Under UK law a prosecution can be brought, with the consent of the Attorney General, against a person who aids and abets, or assists in concealing, grave breaches of the Geneva Conventions (such as torture or inhuman treatment) in the UK or, if that person is a UK national or resident, anywhere in the world.

Miliband,seemingly unaware that he was speaking of a situation in which torture was alleged,  made clear in Parliament that, for the purpose of his "issue', he drew no distinction between sensitive classified material and the paragraphs which the court wished to include in its judgement because ‘by their nature' they were ‘American paragraphs - American evidence.' He made clear also that he had no intention of ‘lobbying' the US on the matter: it was up to the US, un-pressured, to decide what should be done with ‘their' information. He would want the UKto be in the same position if it was British intelligence that had been made available to, say, a European court.

This last point is startling. The implication is that our Foreign Secretary thinks it right for the UK Government to be in a position, in circumstances similar to the BM case, to suppress information suggesting serious misbehaviour by UK officials in the course of intelligence gathering, despite the view of a court in another jurisdiction that the rule of law requires some degree of disclosure. 

Although our Foreign Secretary is suspected of covering something up, he is, in fact, saying with emphasis and clarity that there is an informal understanding between the UK and its intelligence allies on the ownership and control of intelligence information which he wishes to honour, partly because breach may produce loss of confidence and retaliation and partly because, one day, the boot may be on the other foot.

This is not the same as that which the court seems to have understood him to be saying when he issued his Immunity Certificates. And that has consequences.

Firstly,whatever justification there may be for the protection of information sources(which clearly does not apply in this case) such arrangements also contain a ‘We won't tell on each other' element. It is unclear to me what international law says about such arrangements between governments and, if it says anything, how far that can be applied in our domestic courts. At the very least what David Miliband is so anxious to defend has the potential to diminish the protections afforded to Binyam Mohamed and others in similar situations by the Geneva Convention.

Secondly,whatever ‘understandings' our Government (and its predecessors) may have entered into, without the clear and open approval of Parliament, is it right that the British public should be denied, perhaps permanently, knowledge of evidence (of whatsoever origin) which may indicate the possibility that a serious crime has been committed by agents of ‘its' Government? Particularly when the court which has seen that evidence has said that (absent the matters adduced by the Foreign Secretary) the suppression ofwrongdoing by officials would be inimical to the rule of law and the proper functioning of a democracy.

Doubtless those considerations were in the court's mind when it referred specifically to submissions by David Rose, a contributing editor of the magazine Vanity Fair. Rose told the court that, in his view, what the Foreign Secretary wished to suppress was of importance to the debate on the treatment of detainees,interrogation techniques and rendition, as well as raising issues of democratic accountability, for two particular reasons.

1)   There have been numerous statements by officials of the US Government in the period prior to 20th January 2009 that detainees have been humanely treated and such treatment has been in accordance with the spirit of the Geneva Conventions.
2) The UK Security Service has denied that it knew of any ill treatment of detainees interviewed by them whilst detained by or on behalf of the US Government.  

Thirdly,the existence of such an understanding implies an unhealthy and disturbing attitude, on the part of  governments party to it, to the position of the courts in relation to intelligence gathering and national security, to the sanctity of the rule of law and, as I have suggested above, to the importance of international law.

As the Divisional Court said in its judgement,it is common ground that the Foreign Secretary's view on where the balance of the public interest lies is not conclusive. The rule of law requires that the determination of where the balance lies is ultimately for the decision of the court, albeit on the basis of respect for the Foreign Secretary's judgement of that part of the public interest that relates to national security issues.

‘Commonground' means that the Foreign Secretary's advisers accept the position. This sits uncomfortably with the tone of Miliband's statements in Parliament. He plainly thinks his view should, at least in practice if not in theory, be decisive on the whole public interest question. "We decide' he said at one point in his angry exchanges with MPs. Indeed the ‘understanding' now disclosed makes little sense if that is not believed to be the case.

That would surprise our Divisional Court which at one point in its judgement said that (in its earlier deliberations) it did not consider (entertain the possibility) 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 or officials of another state where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.

The soundness of that supposition (which, as David Rose suggested to the court, might be sounder with a new US President in place) would have emerged if the court's decision had gone the other way and, despite the Foreign Secretary's Immunity Cerificate, it had published the paragraphs he wished suppressed. What would the US, and other parties to the understanding, have then said? It is still possible that we will find out. I hope so. David Miliband's frankness may have started him on a slippery slope.

We need to ask ourselves whether we are comfortable with our courts having to make ultimate decisions of this kind. This will certainly feature in the discussion of ‘Who decides, the politicians or the judges?' at the Convention on ModernLiberty to be held in Londonon 28th February.

In the US the question would have been different: the court would have considered how a proper interpretation of the US Constitution (the ‘highest' law in the US) required it to respond to the view of the executive arm of the State.

In principle that may be a better way of dealing with the matter. But it does not overcome the awkward fact that, in the modern world, great power over information accumulates in the hands, not of the State, but of government. To the credit of the UK Government it recognised what the rule of law demanded in BM's case and delivered up to the court sensitive documents that related to the ‘fair trial' question. That might not have happened in all democracies subject to the threat of terrorism. The finest constitution in the world is of little use if it is stymied by an unprincipled government convinced that it knows best and determined to avoid accountability by concealment.

This was brought home to me forcibly by a good American friend some two years ago. He emailed me ‘If you want a written constitution you can borrow ours. We are not allowed to use it any more.' That can happen when governments grapple withthe problem of how best to defend a nation's people from attack by a ruthless and resourceful enemy. For my part I agree with President Obama. If we let go of the ideals on which civilisation is based we lose all moral authority, we lose everything.

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