The debate over the wisdom or otherwise of the UK Government's decision not to disclose documents in the Binyam Mohamed case is important but risks sliding into ever more complex arguments about competing matters of public interest. On the one hand, last week's High Court ruling was clearly significant. In deliberating over how to strike a balance between the interests of national security and those of public scrutiny, and the importance of the open and public administration of justice, their decision will engage constitutional lawyers for some time.
That the High Court finally agreed – with some apparent regret – with the Foreign Secretary in believing the preservation of a fully functioning intelligence-sharing relationship between theUK and US outweighed the necessity to make public information about alleged torture is, I have to say, probably right (though there are now questions which need to be resolved about just what the concerns were).
However, poring over the finer detail of a document disclosure case (one in which the relevant documents have actually long since been made available to Binyam Mohamed's defence counsel) is in one sense a distraction. The big issue – for Binyam Mohamed and some 240 other detainees – is the earliest possible closure of Guantanamo and a resolution of their unacceptable incarceration there. And increasingly, what's required to achieve this goal is an international coalition of governments willing to assist in its closure.
President Barack Obama's much-publicised intention to bring about Guantanamo's closure is extremely welcome, but I fear an unhelpful attitude from European governments, including the UK, may yet hinder this aim.
As is now well known, the mechanics of closing Guantanamo are actually very complicated. An estimated 60 prisoners can't be forced to return to their home countries where they are ones with a clear record of persecuting political opponents – countries like China and Uzbekistan. Of course the US should be expected to take some and prosecute those against whom there is evidence of known crime. Others can return to their own homes. But it is unlikely that a full and quick shutdown will happen without international help.
For a long time US officials have talked of the need for "co-operation" from third countries in settling these cases. For men caught between a rock and hard place, the hope has been that countries would come forward to offer "humanitarian protection", some quasi-refugee status granted in a spirit of problem solving. Ireland, Portugal and other countries have made positive noises. Others, notably the Dutch, have shrugged and said "it's a US-made problem, let them deal with it".
I understand that attitude but it won't do. Whatever the rights and wrongs of Guantanamo the US was originally responding to an international terrorist threat as well as the need to bring people to justice for killing nearly 3,000 people on 11 September 2001. The means were wrong but the cause was right and past international critics of America's actions should now do what they can to undo the knot of illegality and shoddy malpractice that traps those still caged at Guantanamo. What's more, the camp's continued existence damages us too: as a symbol of the West's injustice and a recruiting sergeant for terrorism. It's our problem too.
It's a spirit of enlightened pragmatism that is needed from European capitals now. At a recent EU meeting, foreign ministers failed to agree a common approach to humanitarian protection of at-risk prisoners and David Miliband has been less than forthcoming with offers of UK help. The UK would take two former residents of this country (Binyam Mohamed and a man called Shaker Aamer) but no one else, was his message.
On top of the question of whether the UK Government should be looking harder at the case of individual prisoners claiming UK links, there is the wider question of why the Government is adopting this unhelpful attitude at just the moment when this country can help effect change and end what Amnesty International rightly calls a "travesty of justice"?
As long ago as 2006 Albania provided a safe haven to some of the Uighurs from Guantanamo with nowhere else to go. Other nations are certain to come forward soon and this is not the time for Britain to stand back, washing its hands of a problem made in the USA but almost certainly solvable only through international co-operation.
The author was Attorney General, 2001-7Reuse content