UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah

26.11.09

Binyam Mohamed in July 2009, at the launch of the Guantanamo Justice CentreBinyam Mohamed is a British resident, seized in Pakistan in April 2002, who was held in Pakistani custody, supervised by US agents, until July 2002, when he was sent by the CIA to be tortured for 18 months in Morocco, and was tied in with a “dirty bomb plot” that never even existed. After his ordeal in Morocco, he spent four months in the CIA’s “Dark Prison” in Kabul, and was then flown to Guantánamo in September 2004.

For the last 15 months, Mohamed has watched as two British High Court judges have tried to release to the public information conveyed by the US intelligence services to their British counterparts regarding his torture in Pakistan, prior to his rendition to Morocco.

In this, they have been thwarted, time and again, by the British foreign secretary, David Miliband, who has repeatedly argued that the disclosure of a seven paragraph, 25-line summary of these documents, compiled by the judges themselves, would threaten Britain’s intelligence-sharing relationship with the United States.

Binyam Mohamed was still in Guantánamo, facing a trial by Military Commission, when the judges first attempted to make their summary available to the public last August. In the months that followed, the US Justice Department dropped its claim that he was involved in a “dirty bomb plot,” the Military Commission charges were also dropped, and in February this year, in a clear attempt by both the British government and the Obama administration to keep a lid on the leaking torture story, he was fast-tracked to the top of the pile of cases being reviewed by the Obama administration’s interagency Task Force, and released in the UK.

Undaunted, however, the judges — Lord Justice Thomas and Mr. Justice Lloyd Jones — refused to back down, challenging the foreign secretary regarding the release of the information on four occasions between October 2008 and October 2009, and, in an apparently unprecedented move, asking the British media to become involved. Last Friday they issued a sixth judgment on the case (PDF), declaring that the treatment of Mohamed “could never properly be described as ‘a secret’ or an ‘intelligence secret’ or ‘a summary of classified intelligence,’” and, moreover, restoring two passages from their fifth judgment, which were removed at the request of the Foreign and Commonwealth Office.

These passages, it transpires, were restored at the insistence of the Special Advocates (lawyers appointed by the government to deal with secret evidence in court on Mohamed’s behalf), who have long maintained that the government has no grounds for hiding “information which pointed to the commission of serious criminal offences” on the basis of national security, and who told the foreign secretary that the previous redactions “were more extensive than was required.”

Although four other passages — and the elusive summary — remain redacted, the two reinstated after the FCO dropped its objections are significant, as they refer to the notorious memos issued by the Justice Department’s Office of Legal Counsel in August 2002 and May 2005, publicly released by the Obama administration in April this year, which purported to authorize the use of torture by the CIA.

The first passage stated, “One of those memoranda dated August 1 2002, from Mr. J.S. Bybee, Assistant Attorney-General, to Mr. John Rizzo, acting General Counsel of the CIA, made clear that the techniques described were those employed against Mr. Zubaydah, alleged to be a high-ranking member of al-Qaeda.”

The second stated, “As the paragraphs relate to the actions of the United States itself, disclosure of the redacted paragraphs is consistent with the publication of the CIA interrogation technique memoranda [referred to in the paragraph above] and does not publicize any information about foreign States.”

The judges proceeded to express their displeasure with the government’s insistence that the other four passages remained redacted, noting that “The entire content of the four passages [was] already in the public domain,” and adding, “No contention has or could be advanced to the contrary.”

They also reiterated their reasons for stating that their summary of the documents conveyed by US intelligence to their British counterparts should be made publicly available, pointing out, as they have many times before, that “What is contained in those seven paragraphs gives rise to an arguable case of torture or cruel, inhuman or degrading treatment,” and that they contain “nothing secret or of an intelligence nature,” as they merely comprise “admissions by officials of the United States Government as to BM’s [Mohamed’s] treatment by them.”

This whole process is clearly nothing less than a long, slow circling around the dark truth of Binyam Mohamed’s torture by US agents in Pakistan (with the knowledge of the British authorities) before he was even sent to Morocco, and in this context, the judges’ decision to compare the still-undisclosed details of Mohamed’s treatment with the publicly available details of the treatment of Abu Zubaydah marks another small but extremely important step towards bringing into the open what the judges (and the Special Advocates) clearly regard as information that has no business being hidden.

As Clive Stafford Smith, Mohamed’s lawyer, explained in the Guardian:

I have had a copy of the infamous Bybee memo [PDF] for months, and this allows us to consider which of the “enhanced interrogation techniques” the British government would rather keep under wraps. As identified by Bybee, the 10 techniques are:

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

As Mohamed has never mentioned that he was subjected to waterboarding, and as it appears from the OLC memos that CIA operatives never actually placed insects into Abu Zubaydah’s “confinement box,” despite being authorized to do so, it seems that we are looking, instead, at some, or all of the other eight techniques.

Abu ZubaydahPerhaps this, then, is the reason that the British government remains so desperate not to have the details disclosed of what it knew about Mohamed’s treatment in Afghanistan, because it was complicit in the techniques that were being developed for the CIA’s “high-value detainee” program, whose first official guinea pig was Abu Zubaydah.

To be fair, most of these techniques later migrated to Guantánamo anyway, as part of defense secretary Donald Rumsfeld’s desire not to be excluded from the torture game by his old chum Dick Cheney. But what the British judges did last Friday was to take us back to April 2002.

Looking back to that feverish time, shortly after the capture of both Zubaydah and Mohammed, and nearly four full months before Jay Bybee and John Yoo attempted to redefine torture so that the CIA could indulge in its practice, the British judges have made two important points.

Firstly, they have reminded us that torture was, in fact, taking place long before it was supposedly authorized, with disturbing ramifications for those who ordered its use, which have not been adequately addressed by the Obama administration, and which are not addressed at all in Eric Holder’s decision to investigate only those agents who exceeded the indefensible guidelines for “enhanced interrogation” that were laid down by Bybee and Yoo in August 2002.

Secondly, by comparing the treatment of Binyam Mohamed with that of Abu Zubaydah, the judges have also reminded us that the use of torture was not confined to a select group of 14 “high-value detainees” — including Zubaydah and Khalid Sheikh Mohammed — who were moved to Guantánamo in September 2006, but also to 80 other prisoners that the OLC acknowledged were held in secret CIA prisons, and the many dozens of others who had their torture outsourced to proxy torturers in countries including Egypt, Jordan, Morocco and Syria.

Binyam Mohamed was unfortunate enough to face both options — proxy torture in Morocco both before and after he received his own dose of “enhanced interrogation” at the hands of Americans — but last Friday, the tenacious judges in the UK’s High Court at least took one step further towards ensuring that information about these torture programs cannot be concealed by those who authorized it, or were complicit in it, on the spurious basis that disclosure would damage national security.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009).

11 Responses

  1. UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah by Andy Worthington « Dandelion Salad says...

    [...] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 26 November [...]

  2. Jeffrey Kaye says...

    This is HUGE news, and thanks for uniquely putting it out there, Andy.

    While, as you so ably put it, this latest revelation helps explain “the reason that the British government remains so desperate not to have the details disclosed of what it knew about Mohamed’s treatment,” it also shows why the U.S. government, even under Obama/Clinton, have been trying to bury this info.

    In subtle but powerful ways, the news that Binyam Mohamed was subjected to the enhanced interrogation techniques in a period of time contemporaneous to that of Zubaydah, or behind the latter by only a matter of days or weeks, changes the torture narrative.

    For instance, if there were videotapes (destroyed) of the Zubaydah and Nashiri tortures, what about Mohamed? Also, this news demonstrates that facts concerning pre August 2001 “authorized torture may be out there in a number of places. The “experiment” was not confined to Zubaydah alone in the Spring of 2002.

    It also raises questions to the involvement of U.S. and British agents in the rendition torture, something I know you have already followed and IIRC involved MI5 or MI6 agents involved in Binyam’s torture.

    Tremendous job, Andy.

  3. Andy Worthington says...

    Thanks, Jeff. I was amazed that the mere act of redacting two passages in a judgment could reveal so much when the passages were approved for public release by the British government under pressure from the Special Advocates. Ironically, they might almost have been overlooked had the FCO not made such a big fuss in the first place, but as it is, I think they certainly add weight to the evidence of widespread torture and abuse prior to the August 2002 torture memos. Moreover, this may well have to be the focus of our pressure as writers and activists if, as anticipated, the OPR report on the OLC lawyers ends up having had its teeth removed.

  4. Emptywheel » Torturing Binyam Mohamed–Before Bybee Two says...

    [...] threaten the relationship (and intelligence sharing) between the UK and US. Here Andy Worthington’s post on this ruling, and here’s Clive Stafford [...]

  5. Torturing Binyam Mohamed–Before Bybee Two | No Bull. news service. says...

    [...] threaten the relationship (and intelligence sharing) between the UK and US. Here Andy Worthington’s post on this ruling, and here’s Clive Stafford [...]

  6. Using Photos of Abu Zubaydah’s Torture to Intimidate and Threaten Other Prisoners « freedetainees.org says...

    [...] Andy Worthington noted, propagating knowledge of this “evidence of widespread torture and abuse prior to the August 2002 [...]

  7. Truthout Video: The Human Cost of Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] on the stories of three particular prisoners — Shaker Aamer, who is still held), Binyam Mohamed (who was released in February 2009) and Omar Deghayes (released in December 2007) — “Outside [...]

  8. Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence « freedetainees.org says...

    [...] the case of Binyam Mohamed shows (which I reported most recently here), this “fight to the death” has now been ongoing for 14 months, although the judges show no [...]

  9. Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” « Dandelion Salad says...

    [...] named Muhammad Salih — also raises disturbing questions (as was reported by former prisoner Binyam Mohamed in an op-ed for the Miami Herald), and to this he could have added that the death of another Saudi, [...]

  10. Two Algerian Torture Victims Freed from Guantanamo « freedetainees.org says...

    [...] Bagram. He was also one of ten supposedly significant prisoners — including the British resident Binyam Mohamed — who were flown to Guantánamo on September 20, 2004, after being held as “high-value [...]

  11. vs. those wascally Terrorists | Pearltrees says...

    [...] The first passage stated, “One of those memoranda dated August 1 2002, from Mr. J.S. Bybee, Assistant Attorney-General, to Mr. UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah | Andy Worthington [...]

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