Binyam Mohamed is an Ethiopian-born UK resident. In 1994, aged 15, he came to the UK with his father, who was seeking asylum. After obtaining five GCSEs and an engineering diploma at the City of Westminster College in Paddington, he decided to stay in Britain when his father returned, and was given indefinite leave to remain. He lived in the UK for seven years, during which time he converted to Islam. He travelled to Afghanistan, via Pakistan, in June 2001. He returned to Pakistan sometime after 9/11.
In April 2002, he was arrested at Karachi airport. He was attempting to fly to Zurich, but was not using his own passport.
What happened next is murky. Binyam alleges he was held at two prisons in Pakistan over three months, where he was hung from leather straps, beaten, and threatened with a gun. He further alleges that he was questioned by men he believed to be FBI agents. The torture stopped after he was visited by two Britons, who he believes were MI6 officers. Instead, he was told he was to be tortured by Arabs.
Binyam alleges he was flown in a US aircraft to Morocco, and taken to a jail near Rabat. Here, he says he was tortured for the next 18 months. 18 months of beatings, noise, being slashed with scalpels in his chest and genitals. During this time, he was accused of being an al-Qaida terrorist. Binyam denies the allegations, but he does say he would say anything to try and get the torture to stop. He signed a statement about a dirty bomb plot.
Binyam says that after this 18 months in Morocco, he was flown back to Afghanistan, escorted by masked US soldiers who seemed shocked by his physical condition. When he arrived back in Afghanistan, he says he was kept in a darkened cell in Kabul, chained up, and subjected to loud music for 5 months, while being questioned by Americans. Only after this time was he moved to the Bagram air base, and shown to the Red Cross. Four months later, he was in Guantanamo.
More than a year later, over three and a half years since he was arrested, Binyam was charged with a crime.
On 28th July 2008, an attempt to make the facts clearer, for use in his defence in the US Military Tribunal, was made by Binyam's UK lawyers, who filed a petition that the Foreign Office should be compelled to turn over the evidence of Binyam's abuse. The judges agreed, saying the information was "not only necessary but essential for his defence". The classified US documents were turned over to Binyam's US counsel, for use in his attempts to be set free.
Soon afterwards, all charges against Binyam were dropped, "without prejudice". His lawyers were told new charges would be forthcoming. None have done so.
The question that the UK judges were now asked to look at was if there was a public interest in allowing the publication of seven paragraphs in their original judgement, in which they "provided a summary of reports by the United States Government to the [Security Service] and the Secret Intelligence Service (SIS) on the circumstances of [Binyam Mohamed]’s incommunicado and unlawful detention in Pakistan and of the treatment accorded to him by or on behalf of the United States Government as referred to in paragraph 87(iv) of our judgment." Essentially, these paragraphs are believed to say what the UK government knew about Binyam's treatment, and when - did they know he had been tortured? Were they complicit?
The Foreign Secretary blocked them being made public. The government argued that the US had threatened to suspend intelligence cooperation with the UK if the paragraphs were released, and therefore national security required them to remain secret.
As with all cases of national security, this is a balancing act. We have to decide what we are prepared to give up on the one hand, in return for something else on the other.
The case of Binyam Mohamed tells us that, in the opinion of the government, we must give up a desire to examine what has been done, with the knowledge and complicity of the UK government, to one man, because in return we gain, or retain, the benefit of intelligence sharing, and therefore enhanced security for us all.
The question for me, is whether the opinion of the government is right - have they got the balance right? Have we got the balance right?
The question is not an idle one. If we or the government have got the balance wrong, ultimately our society will suffer. The judges in the Binyam Mohamed case quoted Henry Hallam:
“Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.”
So have we, and has the government, got the balance right?
I'd argue we haven't.
As the judges said in their ruling, "[i]t is 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."
Binyam's lawyers argued that there was an absolute bar to granting a public interest immunity in the release of information pertaining to Binyam's alleged torture:
There was a general public interest in the exposure of evidence of any serious criminality by the State. It would therefore be contrary to the public interest to claim public interest immunity to conceal evidence of such criminality, as the rule of law demanded the investigation of such wrongdoing and the open and public adjudication of it.
The judges rejected this argument, because a public interest immunity certificate is there to protect the interests of the entire state, whereas the claim of criminality is against the Executive of the State - the government. In which case, they judged, it may still be in the public interest to block publication of information pertaining to an illegal act by the Executive, if to release that information would damage the interests of the wider State.
Essentially, because bad things could happen to the population, or their interests, it should be possible for the government to stop the release of information showing they or their agents acted in an illegal manner.
In this case, the 'bad thing' would be the reduction in intelligence sharing by the US, and thus placing the UK at greater risk of a successful attack. This is the crucial claim on which the whole judgement pivots. And, importantly, what is in the interests of national security is decided only by the Executive, by the Foreign Secretary, not by the judges.
This is where I think the balance is wrong. While I am sure the judges have made a sound judgement in law, I disagree about the protection of the State. It is incredibly damaging to the State as a whole to allow an Executive to get away with a criminal act, especially an act of the seriousness of torture. It is damaging to allow the suspicion that the Executive is getting away with a criminal act to linger. It is, in my opinion, more damaging to the State than the possible risks caused by the damaging of national security.
For that reason, I would argue that allowing the nebulous argument of national security to trump that of open justice in fact damages the State, and in a pervasive and insidious manner. In the balancing act between potential physical harm, and actual harm to society's accepted mores of justice, the judges have got it legally right, and morally wrong.
However, judges are not there to make the laws we want. That is what Parliament is for. That means we need to make Parliament bring government to account, if necessary by placing an absolute bar to public interest immunity being used in cases of allegations of serious criminality by the government. And if that is what we want Parliament to do, that is what we must make the Members of Parliament to do, by making the matter a "public grievance", and holding them to account over it.
Because sometimes we need our government to do the right thing, regardless of the cost.
(I encourage you all to have a look at the Binyam Mohamed ruling. It is fascinating, and illustrates the balancing act the judges have had to try and decide on.)
1 comment:
9/11? I think you mean 11/9. You're not American.
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