Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials

On Monday July 28, just four days after his 30th birthday, British resident and Guantánamo prisoner Binyam Mohamed was finally granted the opportunity to have his case heard, albeit in front of a British judge, rather than his American captors, and even though he was unable to attend the hearing, because he remains imprisoned in Guantánamo. There he waits in isolation to discover whether the US administration, which put him forward for trial by Military Commission at the start of June, will formally arraign him on charges of “conspiracy” and “providing material support for terrorism” over the coming weeks.

Binyam has been imprisoned without trial for six years and four months — first in Pakistan, then in Morocco, where he was tortured for 18 months on behalf of the US authorities, then for nine months, in the “Dark Prison” near Kabul, a secret prison run by the CIA and at a US military prison in Bagram airbase, and finally, since September 2004, at Guantánamo.

The judicial review that took place last week came about after Binyam’s lawyers — at Leigh Day & Co. and Reprieve, the legal action charity that represents 30 Guantánamo prisoners — requested, in April, that the British government hand over any evidence in its possession regarding its knowledge of Binyam’s long ordeal, which might provide invaluable exculpatory evidence to assist Binyam in his anticipated trial.

The lawyers were specifically seeking information relating to Binyam’s rendition from Pakistan to Morocco, which was known about in advance by British agents, who visited him in Pakistani custody and offered him a heavily-sugared cup of tea, telling him, “Where you’re going, you need a lot of sugar.” They were also concerned to establish the extent of British involvement in his subsequent torture in Morocco, where, as he told Clive Stafford Smith, Reprieve’s Director, during a visit at Guantánamo, his lowest point came not as the result of his frequent physical torture (which included having his genitals regularly cut with a razor blade), but when his captors asked him questions about his life in London, which could only have come from the British intelligence services, and he realized that he had been betrayed by the country in which he had sought asylum as a teenager.

The trigger for the judicial review was the cold-hearted response of the British government’s lawyers to the request filed by Binyam’s lawyers. The government’s legal advisers claimed that “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted” and that “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.

Approving an “expedited” judicial review at the start of June (meaning, it would appear, that he understood the urgency of the case), Mr. Justice Saunders explained, “If it is correct that in the course of an interrogation, in which material supplied by the Defendant [HM Government] was employed, the Claimant [Binyam Mohamed] was tortured, then it is arguable that there is an obligation to disclose material which may assist Claimant in establishing before the American Military Court that he was tortured. Whether the Court should exercise its discretion not to order disclosure can only be determined at a full hearing.”

With that final caveat, it was by no means certain that the judicial review would go Binyam’s way, but on Monday the sparks began to fly almost immediately. Dinah Rose QC, Binyam’s counsel, wasted no time in telling Lord Justice Thomas and Mr. Justice Lloyd Jones, as the Guardian described it, that “the security and intelligence agencies were ‘mixed up in wrongdoing’ in cooperating with the US in the unlawful treatment” of Mr. Mohamed, and added that, in return for information provided by the British intelligence services to their US counterparts, the US “provided the UK with the fruits of his interrogation.”

Rose explained to the judges that a British agent, identified only as “witness B,” made a “veiled threat” to Binyam, while he was in Pakistani custody, to encourage him to “cooperate with his interrogators when the officer saw him after he was first captured in Pakistan.” The implication, she noted, was “we won’t help you unless you confess.” She added that MI5 then “repeatedly” supplied the US authorities with detailed information about Mr. Mohamed’s life in London for US officials to use in his interrogation, even though, as she pointed out, the British officials “did not press the US to tell them where Mohamed was being held after he was transferred from Pakistan, and in what conditions.”

Rose also declared that the government “must have known the treatment Mohamed was likely to face [in Pakistan], ‘given the history of the Pakistan authorities.’” This provoked a response from the government’s representatives, who, rather feebly, perhaps, in light of recent revelations that the British government has colluded with the Pakistani authorities in anti-terror operations to a shocking extent, “did not dispute that Mohamed was held incommunicado for three months in Pakistan but did not accept the conditions in which he was held there were unlawful.”

After this promising start, Tuesday’s session was even more explosive. Although the hearing was only scheduled for two days, it was extended after the first half of the day was taken up in a closed court cross-examination of “witness B,” which observers interpreted as meaning that the judges were drilling mercilessly for the truth.

The second half of the day involved a similarly extraordinary scenario. This time the judges, having asked the government to vouch for the independence of Susan Crawford, the Military Commissions’ Convening Authority, who is responsible for overseeing the Commission process, brandished a letterhead which revealed that Ms. Crawford actually works for the US Department of Defense, and declared that, in light of this seemingly clear evidence of political interference in what is supposed to be an impartial trial system, they would be devoting time in their deliberations to examining whether or not the Military Commissions can be regarded as a fair process.

To everyone’s surprise, almost the whole of the rest of the week’s sessions were taken up with the continued closed court cross-examination of “witness B.” Considering that observers had indicated at the start of the judicial review that the cross-examination would probably only last for half an hour, the only rational conclusion that could be drawn was that the allegations of “wrongdoing” mentioned by Dinah Rose QC were being fully explored by the judges — possibly in a criminal context — and this undoubtedly explains why, on arriving at the court earlier in the week, “witness B” had brought his own lawyer with him.

Summing up on Friday, Ben Jaffey, another of Binyam’s lawyers, revisited the complaints made by Dinah Rose in light of the week’s developments. As the Guardian explained, Jaffey highlighted disturbing contradictions in MI5’s statements, telling the court that in his witness statement an MI5 officer had said that Britain’s security and intelligence agencies “did not know” where Mr. Mohamed was after he was flown out of Pakistan in 2002, even though MI5 had explicitly told the Intelligence and Security Committee that it believed that he was in US custody. It was as a result of this statement, Jaffey said, that the committee concluded, in its report on Mr. Mohamed’s case last year, that it was “understandable” that MI5 did not seek assurances about his treatment. Jaffey added that the committee was “not given the full picture,” and delivered a final criticism of MI5, pointing out that, although the intelligence service had indicated at the time that he was in US custody, “it now conceded that he was in a ‘location unknown.’”

Although the US authorities are still maintaining a wall of silence over Binyam’s treatment — with the Associated Press reporting that, on Friday, the Pentagon “refused to say … whether Mohamed was ever taken to Morocco” — the British judges are clearly unimpressed with a situation in which, even after six years, denials and evasion remain the norm. As the judicial review came to an end, Lord Justice Thomas said that Binyam’s case raised “many and very troublesome issues.”

The judges are expected to deliver their ruling in two weeks’ time.

Andy 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 see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on Indymedia.

For a sequence of articles relating to Binyam Mohamed, see the following: 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), 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, the British resident released from Guantánamo? (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 (includes the Jeppesen lawsuit, 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), Did Hillary Clinton Threaten UK Over Binyam Mohamed Torture Disclosure? (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).