Binyam Mohamed

Analysis of the main points of the case

Queen on the Application of Binyam Mohamed

v.

Secretary of State for Foreign and Commonwealth Affairs

(August 21, 2008)

Open Judgment at: http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_full210808.pdf

Summary of Open Judgment at:

http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_summary210808.pdf

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Note: This analysis is provided by Reprieve, and should not be considered an official report. However, the following are the main points made in the judgment:

1. The Foreign Secretary (David Miliband) is being given time to reconsider his position.

The ultimate effect of the judgment is to give David Miliband a week (until the next hearing, set for Wednesday, August 27, 2008) to consider what evidence he is going to provide to Binyam Mohamed’s defence. Previously the UK government took the following position in letters to us:

• “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted” and
• “it is HM Government’s position that … evidence held by the UK Government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by his British lawyers.

This position is untenable. The judgment gives him time now to reconsider his position, and hopefully agree with counsel as to what should be made available to the defence, before the second hearing. Indeed, “we were told that the Foreign Secretary would in any event wish to reconsider the position in the light of any findings we made….” (UK Judgment at 104)

If the Foreign Secretary cannot agree with the Special Advocates as to what should be revealed, the various factors militating towards disclosure “will have to be considered at the next hearing before any final [disclosure] order is made.” (UK Judgment at 89)

With respect to the materials that have been kept secret to date, “the Foreign Secretary would need to make a decision on each piece of information or each document or redacted document if the court thought it should be disclosed under the Norwich Pharmacal principles. The Special Advocates contended that no claim of Public Interest Immunity could like in respect of information which pointed to the commission of serious criminal offences, particularly those contrary to the rules of jus cogens in international law. We formed the view that the better courts was to hear that argument in the context of all the issues on public interest immunity.” (UK Judgment at 89)

If it comes to this, “we will, in the unique circumstances of this case, order the provision of the specific information broadly described as Type A in a form to be agreed or decided by us.” (UK Judgment at 99) This refers to the discussion on pages 86-87 and would include any evidence at all relating to Binyam Mohamed’s renditions, as well as to the personnel on board the flights; any evidence relating to Binyam Mohamed’s treatment, including the denial of UK access to him, all evidence related to the SyS visit to interview him, information provided to the US that would tend to prove that Binyam Mohamed was “a nobody, only a cleaner from London”, any other information about him, and any evidence that the UK has failed to provide Binyam Mohamed with the assistance that he should have been provided. (UK Judgment at 86-87) At this point, the judges will not order disclosure of broader information about what the UK knew generally about US renditions, or the treatment of other prisoners in the locations where Binyam Mohamed was held. (UK Judgment at 87-88)

2. Binyam Mohamed clearly was tortured, and the UK materials are crucial to prove this

Importantly, the Court concludes that the US rejection of Binyam Mohamed’s torture as “not credible” is, itself, “untenable”:

“The unreasoned dismissal by the United States Government of [Binyam Mohamed]’s allegations [that he was rendered and tortured] as ‘not credible’ as recorded in the letter of 22 July 2008 is untenable, as it was made after consideration of almost all the material provided to us.”

(UK Judgment at 97)

3. The scope of Binyam’s torture across two continents

The Court canvasses the allegations of torture that are at stake here. It should be noted that all of this evidence is effectively unrebutted, and the US has only even sought to respond to the allegation that a razor blade was taken to his genitalia.[1]

1. Torture in Pakistan:

It is “common ground that BM was detained unlawfully and incommunicado in Pakistan, he was denied access to a lawyer and his detention was not reviewed by a court or tribunal.” (UK Judgment at 42)

The judgment relates, “he was hung by a leather strap around his wrists so he could only just stand” (UK Judgment at 20) – this was a torture known as strappado by the Spanish Inquisition.

He was only allowed to the toilet twice a day, and given food every second day. (UK Judgment at 20)

He was told he would be rendered for torture in Jordan. (UK Judgment at 20)

The Pakistanis beat him and held a gun to his head (UK Judgment at 21) and he thought he was going to die.

2. Torture in Morocco

It is unrebutted that he was taken to Morocco by a CIA rendition plane on 22 July 2002. (UK Judgment at 28)

The court does not go into all the details of his torture, but mentions the following facts--

• He was “severely beaten” (UK Judgment at 28)

• He was “subjected to sleep deprivation” (UK Judgment at 28)

• “[H]is penis and private parts were cut with a scalpel.” (UK Judgment at 29)

The Court holds as follows:

“It was accepted on behalf of the Foreign Secretary that BM had established an arguable case that:

i) After being subject to cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the United States authorities.

ii) Whilst in Morocco he was subject to unlawful incommunicado detention and torture during his interrogation there by or on behalf of the United States authorities.

iii) He was unlawfully rendered by the United States authorities from Morocco to Afghanistan on 21 or 22 January 2004.

iv) He was detained unlawfully and incommunicado at the ‘Dark Prison’ near Kabul and thereafter at the United States Air Force base at Bagram.

v) He was tortured or subject to cruel, inhuman or degrading treatment by or on behalf of the United States authorities in the ‘Dark Prison’.”

(UK Judgment at 43)

As for why this was done, Binyam Mohamed: “was told that the United States wanted a story from him and he was to testify against others in relation to matters such as the dirty bomb.” (UK Judgment at 28)

He was questioned about material that apparently came from the UK. (UK Judgment at 29)

3. Torture in Afghanistan

He was rendered to Afghanistan on 21 or 22 January 2004. (UK Judgment at 29)

In the “Prison of Darkness” he “was deprived of sleep, blasted with sound, starved and then beaten and hung up. During this period he alleges that he was interrogated by the CIA and threatened with further torture if he did not provide the story that the United States wanted.” (UK Judgment at 29)

He was then “subjected to further mistreatment” in Bagram. (UK Judgment at 30)

4. The UK was clearly complicit in wrongdoing

The court concludes that the UK was legally complicit in the wrongdoing, sufficient to create a legal obligation to help right the wrong. The essential facts are as follows:

Nobody disputes that Mr. Mohamed was illegally held in Pakistan by the US, and that the UK nonetheless benefited from the illegality by interrogating him there. (UK Judgment at 19) The UK knew about Pakistan’s “poor human rights record.” (UK Judgment at 19) Yet the UK exploited this, apparently lodged no complaint, and did nothing to bring it to anyone’s attention to do anything about it.

Indeed, the UK told Binyam Mohamed they would help him only if he did what the US wanted (“cooperating” with them). Witness B asked what he could do to help Mr. Mohamed. (UK Judgment at 21) “It is clear that what [Witness B] said to [Binyam Mohamed] was, in effect, that the United Kingdom would not attempt to assist him unless BM persuaded him that he was cooperating fully.” (UK Judgment at 56)

Then the UK realized that he had been rendered somewhere else and did nothing to prevent it – indeed, continued to exploit it by sending questions to be asked of him. “It is clear that they [the UK authorities] must have appreciated that he was not in a regular United States facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the United States had direct access to information being obtained from him.” (UK Judgment at 56)

“The SyS was supplying information as well as questions which they knew were to be used in interviews of BM from the time of his arrest whilst he was being held incommunicado and without access to a lawyer or review by a court or tribunal.” (UK Judgment at 56)

“The conduct of the SyS facilitated interviews by or on behalf of the United States when BM was being detained by the United States” including when he had been rendered to another country. (UK Judgment at 57)

The UK then received information from the US that was clearly the fruit of his abuse. The UK received a report from the US in September 2002 (UK Judgment at 26) that apparently came from the torture chambers of Morocco.

The UK received another report in February 2003 (UK Judgment at 27) that must have been derived from Morocco, as he had been there for 7 months by then.

Thus, the Court concludes, the action of the UK “in connection with BM was far beyond that of a bystander or witness to the alleged wrongdoing.” (UK Judgment at 58)

Witness B initially wanted to assert his right to remain silent. There were “questions [that] would touch on commission of offences under the criminal law given the very wide scope of the International Criminal Courts Act 2001.” (UK Judgment at 49) These involved accessory to war crimes, and “assisting an offender or concealing the commission of an offence.” (UK Judgment at 49-50) War crimes includes “torture or inhuman treatment” as well as “wilfully causing great suffering, or serious injury to body or health.” (UK Judgment at 50) The Court would not hold this against him, but it does appear clear from the judgment that UK officials are exposed to criminal liability under the ICC Act.

5. What the UK knew and when

The UK tried to downplay what it knew and when. However, they clearly knew about rendition by the time Bisher al Rawi and Jamil el Banna were picked up in the Gambia and rendered to the Dark prison in Kabul. (UK Judgment at 22)

They realized that their “intelligence was coming from a detention facility which was outside and away from Guantánamo.” (UK Judgment at 23)

Here, Reprieve will shortly issue a report on what was public knowledge at what date, to demonstrate that the UK had to have known much more than they are saying.

6. Helpful materials in UK hands

There is elaborate reference in the judgment to the various things in UK hands that could help Binyam Mohamed. It must be remembered that the US authorities will not even agree that they rendered Mr. Mohamed, so the defence must expect to have to prove everything short of the sun rising in the East each day.

“It is in effect an acceptance by the Foreign Secretary that he has in his possession material that is potentially exculpatory or otherwise relevant to the proceedings before the United States Military Commission.” (UK Judgment at 34)

Indeed, the British materials assist Binyam Mohamed in proving his case in various ways, identified by the Court as “not only necessary but essential if [Binyam Mohamed] is to be able to put forward a defence to the very serious charges he faces, given the confessions made by him at Bagram…” (UK Judgment at 65) “Our reasons are set out in the closed judgment, but as can be seen from the summary of our findings … the information also provides the only support independent of [Binyam Mohamed] in some material particulars for his general account of events which led to the confessions.” (UK Judgment at 66) Some of these important materials are as follows:

• One fact that Mr. Mohamed’s defense must prove is the very fact that he was rendered to torture – which might seem incontrovertible, but the US Administration cannot admit it, as they have stated publicly so many times that they do not render to torture.[2] So this will be strongly contested in any US process. The fact “that he could not be located by the United Kingdom authorities and that access to him was denied to the United Kingdom authorities … support[] his account of rendition.” (UK Judgment at 65) In other words, since the US hid a British resident even from the UK government for two years when all other UK residents in places like Bagram and Guantánamo Bay were accessible to the UK, this is strong evidence that the US was acting illegally.

• “The information disclosing the provision of information to the United States authorities in October 2002 supported his account of what was put to him whilst being tortured in Morocco.” (UK Judgment at 65) What this means is that the statements Binyam Mohamed made in 2005 about UK materials being used to interrogate him in Morocco matches what the UK now admits it gave to the US, that was then used by the Moroccans to make Mr. Mohamed understand that everyone was against him, and his position was hopeless, so he might as well say what they wanted him to say.

• The main allegation against Mr. Mohamed is that he plotted with Jose Padilla to make a “dirty bomb” attack on the US. While this allegation was dismissed against Padilla in 2005, and has been dismissed as incredible by many commentators, the US still seeks to charge Mr. Mohamed with it in a military commissions. The UK information shows “that [Binyam Mohamed] at the outset said there was no dirty bomb plot (as position he has consistently maintained to his defense lawyers).” (UK Judgment at 65) Of course, this changed when he was tortured, but the fact that he told the UK this is strong evidence that his later ‘confessions’ were false, and were tortured out of him.

• The most important material discussed in the open UK Judgment is that “BM said the report of a dirty bomb was ‘the FBI perception’. The real story was that he had seen a file on a computer in Lahore and decided it was a joke – part of the instruction included adding bleach to uranium 238 in a bucket and rotating it around one’s head for 45 minutes.” (UK Judgment at 17-18)

• This is corroborated by a website that says exactly what Binyam related in 2002. See the website discussed at length at How (Not) to Build a Thermonuclear Bomb, http://port80.blogsome.com/2005/03/13/how-not-to-build-a-thermonuclear-bomb/ (“This morning, a piece has been making the rounds of the blogosphere claiming that a member on a terrorist forum has posted instructions for how to make a hydrogen bomb. *** This forum post is priceless. *** Perhaps the high point of this instructions is the author’s advice on enrichment of uranium hexaflouride: ‘First transform the gas into a liquid by subjecting it to pressure. You can use a bicycle pump for this. Then make a simple home centrifuge. Fill a standard-size bucket one-quarter full of liquid uranium hexafluoride. Attach a six-foot rope to the bucket handle. Now swing the rope (and attached bucket) around your head as fast as possible. Keep this up for about 45 minutes. Slow down gradually, and very gently put the bucket on the floor. The U-235, which is lighter, will have risen to the top, where it can be skimmed off like cream. Repeat this step until you have the required 10 pounds of uranium. (Safety note: Don’t put all your enriched uranium hexafluoride in one bucket. Use at least two or three buckets and keep them in separate corners of the room. This will prevent the premature build-up of a critical mass.)’ There are two primary problems with these instructions: The difference in mass between an molecule of uranium hexaflouride with U-235 and a molecule of uranium hexaflouride with U-238 is precisely 3 neutrons. Since these substances are chemically identical, they will tend to mix with currents in the bucket, and not separate “like cream.” Thus, the force exerted by a spinning bucket will not even begin to produce enriched U-235. Real centrifuge enrichment processes use thousands of extremely high speed centrifuges, one feeding the next, to create highly enriched uranium. *** At room temperature and pressure, uranium hexaflouride is a solid.

• Binyam Mohamed has been forced to confess that he got a passport from KSM, which is one of the allegations that has been made against him, and the UK materials prove that this is false, as Mr. Mohamed has reported to his lawyers. “The information had, for example, shown that he had one fake passport and not two (as is charged…” (UK Judgment at 65)

• The fact that Witness B assessed him as being non-compliant with the US, and ready to maintain what he was saying to the Americans (UK Judgment at 65; see also 18) is crucial. This shows why the US lost patience with him, thinking that the dirty bomb plot was real, and decided in July 2002 to render him for torture in a country willing to do things to him that the US could not. The US thought (erronesously) he knew more than he was saying, and why ultimately he was rendered for torture – even though what he was really doing was refusing to talk to the US (he did talk to the UK) because he knew his rights, and he had nothing related to them that he had to say.

• The UK questioned Mr. Mohamed about US reports (made to the UK) that he was saying that there would be future attacks by al Qaida. “He thought another major attack could happen – this was his assessment, but he did not know [one would] although the FBI thought he did.” (UK Judgment at 18) Again, this shows why the US rendered him. They thought he knew about an impending attack. Actually, what he had said was all he knew – that it seemed likely to him (as it did to most people) that al Qaida would not give up after 9/11 but would try other attacks.

These are only some of the factual proofs that can be made by the defence with access to the UK materials. There are others no doubt in the materials being held as secret. However, this shows how important these materials are.

7. The Disturbing US failure to investigate

The Court identifies a very disturbing failure on the part of the US to show any interest at all in the investigation of the allegations that Mr. Mohamed has been tortured.

The US has taken the position to the UK that “‘based on a review of records and consultations’ the allegations made by counsel to [Mr. Mohamed] that are reflected in [the Foreign Secretary’s] letter [to the US] were ‘not credible.’” (UK Judgment at 36) As noted above, the Court finds this decision by the US itself to be “untenable”.

The UK has a strong “positive obligation to ensure that torture was to be discouraged and its fruit not used in legal proceedings…. There were therefore the strongest public policy reasons for providing the information. The United States authorities had said there was no credible evidence in respect of the allegations. They refused to examine the allegations. They had failed to disclosure any material as to BM’s whereabouts or his treatment before his arrival at Bagram or even say where he was.” (UK Judgment at 103)

8. The Disturbing US failure to exculpatory materials

Ultimately, the UK obligation to help Binyam Mohamed with facts that could prove his innocence is grounded, in part, on the fact that the US is not fulfilling its own obligation to provide this information.

“[T]he Foreign Secretary no longer contends that the United States military prosecutors will disclose the [exculpatory] material.” (UK Judgment at 35; see also id. at 36, 62) “The explanation for this is set out in the closed UK Judgment.” (UK Judgment at 62) We do not know what this explanation is, but it is fascinating to consider how the UK came to the conclusion that the US could not be trusted to fulfil its obligation to provide Mr. Mohamed with the discovery that is his right. Presumably, since this is being kept secret, they know something about the process that we do not.

Even if forced to turn material over, the Court concludes that the US authorities will delay as much as possible: “there are grounds, given what has happened since information was discovered in the United Kingdom, which would lend support to the view that the United States Government will seek to delay as long as possible the disclosure of not only … the information and documentation provided by the United Kingdom Government, but other information and documentation which it undoubtedly also has or had in its possession.” (UK Judgment at 82)

Thus “despite the possibility of provision of the information in the processes under the United State Military Commissions Act at some point in the future, the Foreign Secretary should nonetheless now provide the information to [Binyam Mohamed]’s lawyers.” (UK Judgment at 80)

The Court appears offended by the extent to which the US government has been resisting disclosure, even to the extent of admitting where they held Mr. Mohamed for two years: “the United States Government has also, so far, refused to provide [Binyam Mohamed’s] lawyers with any information as to where he was or indeed what they contend happened to him in the period of 2 years between May 2002 and May 2004.” (UK Judgment at 28; see also id. at 64)

There can be no credible argument made that the US does not have this information: “it is inconceivable that there are no documents in the possession of the United States Government that relate to what happened to BM in the two year period from April 2002 to May 2004. There must be documents that record or evidence his movements, his custody and his treatment when interviewed. We have been given no reason why such documents cannot now be produced by United States military prosecutors and can think of none.” (UK Judgment at 81)

“We can think of no good reason why the materials have not now been made available by the United States Government to BM’s lawyers in confidence and subject to the strict conditions of secrecy in which part of the proceedings before the Military Commissions operate….” (UK Judgment at 97)

The Court goes into a lengthy discussion of just how wrong this is:

“It is of particular significance that the United States Government has refused to provide any information as to BM’s location during the period between May 2002 and May 2004. The fact that no explanation has been provide to date (despite the disclosure in the earlier proceedings) is a matter of serious concern in relation to the practical operation of the disclosure procedures before the United States Military Commission and a point towards the very real difficulties that BM’s lawyers may face in obtaining information under the United States Military Commissions proceedings. It might have been thought self evident that the provision of information as to the whereabouts of a person in custody would cause no particular difficulty, given that it is a basic and long established value in any democracy that the location of those in custody is made known to the detainee’s family and those representing him.

“To deny him this [discovery] at this time would be to deny him the opportunity of timely justice in respect to the charges against him, a principle dating back to at least the time of the Magna Carta and which is so basic a part of our common law and of democratic values.” (UK Judgment at 98)

In the closed sessions in court, it is apparent that the UK government has expressed its frustration and strong disapproval of the failure to disclose such basic information. “It is clear that the United Kingdom Government considers that such material should be made available. All its strenuous actions have been directed to that end. It is its view that the material should be made available by the United States Government which has so far declined to do so. It has therefore been compelled to resist this claim. We set out reasons for so concluding in the closed part of the judgment.” (UK Judgment at 98-99) It is reasonable to conclude that in the closed part of the hearing, the UK expressed its frustrations at the US inactions, and explained that the US insisted that it resist disclosure of materials that would embarrass the US.

9. Urgency of the action

This is related partly to the need to convince the Convening Authority not to proceed, and partly because “there is a continuing deterioration in BM’s mental health.” (UK Judgment at 81)

The Court is also rather offended that the Convening Authority has not seen fit even to respond to its request that she consider delaying the process in order to obtain the facts that may become available: “It is a matter of considerable regret that no response was received [from the Convening Authority], despite our request in the course of the hearing.” (UK Judgment at 40)

10. Quotes on torture

There are plenty of powerful quotes on torture:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from torture, because the effect is to encourage torture.” UK Judgment at 9, quoting A (No. 2) [2006] 2 AC 22 (Lord Bingham).

“the use of torture by a state is dishonourable, corrupting and degrading the [to] State which uses it and the legal system which accepts it.” (UK Judgment at 90)

“As the United States court put it in Filartiga v. Pena-Irala, (1980) 630 F.2d 876, ‘the torturer has become like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind.’” (UK Judgment at 91)

“it is a principle at the heart of our systems of justice that evidence of involuntary confessions obtained by such means are inadmissible at trial. The principle in relation to involuntary confessions dates back at least to the decision in 1783 in R v. Warickshall 1 Leach 263 at 263-4, where the court stated: ‘a confession forced from the mind by the flattery of hope, or by the torture of fear comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit out to be given to is; and therefore it is rejected.’” (UK Judgment at 95)

“It is therefore self evident that for many centuries the common law has excluded evidence obtained by torture or cruel, inhuman or degrading treatment which can never be used to secure a conviction of the victim.” (UK Judgment at 96)

“To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view.” (UK Judgment at 96), quoting R v. Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42 at 67F-H (Lord Bridge).

“No statement that is verified as having been obtained through the use of torture shall be admissible as evidence in a legal proceeding…” (UK Judgment at 120), quoting Article 10, Inter-American Convention to

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[1] The US makes nothing more than a flat denial even there, saying that there were no signed of razorblading on his penis – which ignores the fact that torturers use razors for the very reason that, as all shavers know, cuts do not leave obvious scars, and more sophisticated methods must be used to assess the damage.

[2] For example, Secretary of State Condoleezza Rice stated categorically as follows: “The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.” Secretary of State Rice, Remarks upon her Departure for Europe, US Dept. of State Website (Dec. 5, 2005), http://www.state.gov/secretary/rm/2005/57602.htm.