Minister's lawyers attack 'torture' case judges
Lawyers for the Foreign Secretary today launched an extraordinary courtroom attack on High Court judges who want to disclose intelligence material related to allegations of torture involving the CIA.
David Miliband accused the two senior judges of irresponsibly "charging in" to a diplomatically sensitive area over what happened to former terror detainee Binyam Mohamed while held by the Americans in Pakistan.
Jonathan Sumption QC, appearing for the Foreign Secretary, told the Court of Appeal the judges' stance was "both, in many respects, unnecessary and profoundly damaging to the interests of this country".
Mr Sumption added: "I would go so far as to say their views were irresponsible."
Since Mr Mohamed had now been released from detention in Guantanamo Bay, he was no longer affected by today's legal proceedings which had "essentially been taken over to serve a wider, and in some respects, political agenda".
Lord Justice Thomas and Mr Justice Lloyd Jones are under what is an unprecedented attack by a Government minister on senior judges.
The judges want to re-insert into a series of controversial High Court judgments already handed down, admissions allegedly made by the CIA to the British security service.
The Foreign Secretary warned disclosure could jeopardise the UK's intelligence-sharing relationship with the US.
Today Mr Miliband is asking the appeal court to direct that seven paragraphs redacted from the first High Court judgment, and four disputed paragraphs in the fifth, should not be restored.
The hearing is expected to last three days.
The High Court judges said in their latest ruling on the issue on November 19: "Of itself, the treatment to which Mr Mohamed was subjected could never properly be described in a democracy as 'a secret' or an 'intelligence secret' or 'a summary of classified intelligence'."
The redacted material should be put back into their judgments because it was "essential" to their reasoning and was no threat to national security.
They found that what had been redacted "gives rise to an arguable case of torture or cruel, inhuman and degrading treatment".
Early on in the proceedings the media was invited by the Court to make representations about the implications for freedom of expression and The Independent, along with the BBC, The Times, and the Guardian have joined in to argue that evidence of torture or cruel, inhumane or degrading treatment should not be withheld from public scrutiny. International media especially in the USA have chosen to become involved and are represented at court, these include Associated Press, the New York Times/ International Herald Tribune, the Los Angeles Times and the Washington Post, together with the charitable foundation, Index on Censorship.
The Foreign Secretary's appeal is being heard by three of the country's most senior judges - the Lord Chief Justice, Lord Judge; the Master of the Rolls, Lord Neuberger, and the President of the Queen's Bench Division, Sir Anthony May.
Mr Mohamed, now 31, was still being held at Guantanamo Bay awaiting trial at the time of the court's original judgment - the first of six - in August last year, but has since been released and has returned to the UK.
He is fighting to prove he was tortured and that the British authorities facilitated his detention and knew about the wrongdoing to which he was being subjected.
Mohamed's lawyers say the Government maintains the UK was not mixed up in any wrongdoing by the US authorities.
It was therefore necessary for the High Court to determine what the British security service knew about his mistreatment before British agents were sent to interrogate him.
The controversial paragraphs summarised that material.
Lord Justice Thomas and Mr Justice Lloyd Jones have held in their High Court rulings it was clear from the fact that UK intelligence officers sought to interview Mr Mohamed during his detention and supplied information and questions for his interviews by others "that the relationship of the United Kingdom Government to the United States authorities in connection with Binyam Mohamed was far beyond that of a bystander or witness to the alleged wrongdoing".
Mr Mohamed, an Ethiopian, was granted refugee status in Britain in 1994. He was detained in Pakistan in 2002 on suspicion of involvement in terrorism and then "rendered" to Morocco and Afghanistan.
After being subjected to alleged torture by his US captors, he was sent to Guantanamo Bay in 2004.
The judges have said that the material removed from their judgment - because the Foreign Office feared it would disclose the substance of torture allegations - was already in the public domain.
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.
The so-called 'torture memos' set out details of the treatment inflicted on detainees by the CIA and a minute legal analysis as to whether those techniques would constitute an infringement of the prohibition against torture.
Mr Sumption argued it was not for the UK to release US secret material.
"The intelligence relationship between the UK and the US is by far the most significant relationship the UK has from the point of internal security and the protection of broader international interests," he told the appeal court.
It involved a level of cooperation which was critically important and had been described as unique.
The UK had for many years been able to conduct "a highly productive relationship" with the US, while at the same time disagreeing with the political and legal position of the US on a number of other issues which were related in one way or another to the gathering of intelligence.
Against that background of "a very difficult diplomatic balancing exercise that has served the interests of justice and the security interests of the UK" the judges had "irresponsibly charged in" with judgments that were "both, in many respects, unnecessary and profoundly damaging to the interests of this country".
It was the Foreign Secretary's position that the material the judges wanted to disclose ought to be provided by the US prosecuting authorities to Mr Mohamed's lawyers.
The UK made "strenuous and ultimately successful" diplomatic efforts to ensure this happened, while the Foreign Secretary declined to disclose the material himself.
The US strongly objected to disclosure by the UK. The High Court judges were wrong to think the position changed when President Barack Obama took over from the Bush administration.
US Secretary of State Hillary Clinton had disclosed in two meetings with the Foreign Office that the Americans would have to reassess its intelligence-sharing arrangements with the UK if disclosure of its intelligence material was made.
In a letter to the Foreign Office in April this year, the CIA said disclosure "reasonably could be expected to cause serious damage to the UK's national security".
Disclosure might result in "a constriction of the US-UK relationship, as well as UK relationships with other countries..."
Disclosure would suggest the UK was "unwilling or unable to protect information or assistance provided by its allies..."
The letter stated: "If it is determined that your service is unable to protect information we provide to you, even if that ability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in future".
Mr Sumption said the High Court judges were wrong to decide it was "necessary and justifiable" to include secret US material in their Binyam Mohamed rulings.
The Foreign Secretary did not dispute that material already available established an arguable case that Mr Mohamed had been unlawfully detained, tortured and otherwise maltreated.
To reinstate the redacted paragraphs would now be "an entirely gratuitous breach of confidence on the part of the court".
Mr Sumption argued: "The court is not a roving commission of enquiry into everything of public interest that may incidentally arise in the course of proceedings."
It would be "quite absurd" to ignore the change in circumstances after the handing down of the first judgment in the case, including the fact that charges were dropped against Mr Mohamed.
He said: "The court is not a branch of the media. It is not a pressure group."
It was also not "an organ of the UK".
The QC said: "I do not dispute that there is a public interest in the exposure of wrong-doing and in informed public debate and in free speech, but they are not interests which have anything to do with the particular issues in this case."
A Foreign and Commonwealth spokesman said: "Over the course of this hearing we will argue our case before the Court of Appeal in the strongest possible terms.
"The request for disclosure by an English court of another country's intelligence material, without its consent, is unprecedented.
"It is vital that we maintain intelligence-sharing relationships with other countries which are integral to our efforts to keep the UK safe, and no other is more important to our security than our relationship with the US.
"All intelligence relationships rely on the assurance that material provided in confidence will not be disclosed in public without consent.
"We expect our intelligence to be kept in confidence by our partners. It is right that we do the same in order to keep their confidence.
"The issues at stake in this case are fundamental to the security of the UK."
Mr Sumption said the Foreign Secretary clearly did have evidence that damage could be done to UK national security by disclosing the American intelligence material.
The High Court view that there was no such threat under the Obama administration was "completely untenable".
The view that there had only been a threat under the Bush regime as it sought to "cover up its misdeeds "was "simply rubbish", argued Mr Sumption.
The hearing continues tomorrow.
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