by Caroline Colebrook
THE BATTLE between the Government and senior judges over evidence of British intelligence services’ collusion in torture reached a new level last week as Foreign Secretary David Miliband accused two senior judges of irresponsibility for ruling that information deemed “sensitive” must be disclosed.
Miliband claims that disclosing this information will damage Britain’s relations with the American Central Intelligence Agency.
The judges, who have seen the information, say that it does not reveal anything truly sensitive but that it contains evidence concerning the collusion of British intelligence officers in torture.
The information concerns the case of Binyam Mohamed, a British resident who was tortured in Pakistan, Morocco and Afghanistan before being transferred by United States authorities to the concentration camp at Guantanamo Bay. He was released a few months ago, in poor health after his experiences.
Miliband is appealing against six High Court judgments that CIA information on Mohamed’s treatment, and what MI5 and MI6 knew about it, must be disclosed.
Lawyers from various newspapers and two civil rights groups are also involved, as well as Mohamed’s lawyers, arguing that the case is of real public interest and that information about it should not be suppressed.
Liberty and Justice are arguing that the public interest in disclosing the role played by British and US agencies in unlawful activities is far more important than any claim about potential threats to national security.
Miliband has instructed Jonathan Sumption QC to represent his position. Earning £3 million a year, Sumption is one of the most expensive and formidable advocates in Britain.
The Appeal Court case, which opened earlier this week, is being heard by Britain’s three most senior appeal court judges, led by the Lord Chief Justice, Igor Judge. Sumption is arguing that: “The evidence that disclosure would cause serious harm to national security is overwhelming.”
He refers to a Law Lords’ ruling last year that the Serious Fraud Office could not pursue corruption allegations over arms sales by BAE Systems, Britain’s biggest weapons maker, to Saudi Arabia because the Saudi government had threatened to stop intelligence-sharing with Britain.
The case, in which Sumption also represented the Government, has been described by critics as damaging Britain’s reputation for observing the rule of law.
Miliband’s lawyers point to a letter sent by the CIA to MI6 in April, saying that if British judges ordered the information at issue to be disclosed the US might reassess its intelligence-sharing relationship with the UK.
Mohamed’s lawyers cite US President Barack Obama, in stressing his commitment to transparency and the rule of law regarding the treatment of detainees, had sanctioned the release of memoranda on interrogation techniques.
Those memos set out details of the treatment in flicted on detainees by the CIA and a minute legal analysis as to whether those techniques would constitute an infringement of the prohibition against torture.
The “sensitive material” is a mere seven paragraphs that were taken out of a CIA report and includes an account given to British intelligence “whilst Mohamed was held in Pakistan ... prior to his interview by an officer of the security service”.
British government insists must remain secret. The two High Court judges, Lord Justice Thomas and Justice Lloyd Jones, earlier this year repeatedly challenged Miliband’s claims.
“What is contained in those seven redacted paragraphs gives rise to an arguable case of torture or cruel, inhuman and degrading treatment,” they said.
“It was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters.”
They added: “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, 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.”
They ruled that: “The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law.
“A vital public interest requires ... that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain ... Championing the rule of law, not subordinating it, is the cornerstone of democracy,” they added.