guardian.co.uk, 16 October 2009
David Miliband, the foreign secretary, acted in a way that was harmful to the rule of law by suppressing evidence about what the government knew of the illegal treatment of Binyam Mohamed, a British resident who was held in a secret prison in Pakistan, the high court has ruled.
In a devastating judgment, two senior judges roundly dismissed the foreign secretary's claims that disclosing the evidence would harm national security and threaten the UK's vital intelligence-sharing arrangements with the US.
In what they described as an "unprecedented" and "exceptional" case, to which the Guardian is a party, they ordered the release of a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born Mohamed before he was secretly interrogated by an MI5 officer in 2002.
"The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law," Lord Justice Thomas and Mr Justice Lloyd Jones ruled. "Championing the rule of law, not subordinating it, is the cornerstone of democracy."
The summary is a CIA account given to British intelligence "whilst [Mohamed] was held in Pakistan ... prior to his interview by an officer of the Security Service", the judges said. The officer, known only as Witness B, is being investigated by the Metropolitan police for "possible criminal wrongdoing".
The seven-page document will not be released until the result of an appeal is known. However, the judges made clear their anger at the position adopted by Miliband, MI5, and MI6 in their hard-hitting judgment.
An explanation was needed, they said, about "what the United Kingdom government actually knew about what was alleged to be cruel, inhuman or degrading treatment or torture, in particular what Witness B knew before he interviewed [Mohamed] ... in Pakistan". The judges added that it was important to explain what MI5 "and others knew when they provided further information to the United States to be used in the interrogation".
There was a "compelling public interest" to disclose what Miliband wanted to suppress, they said; there was nothing in the seven-paragraph summary that had anything remotely to do with "secret intelligence".
"In our view, as a court in the United Kingdom, a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom."
UPDATE: Today's Guardian calls the Court's ruling "a devastating judgment," reporting that the "judges roundly dismissed the foreign secretary's claims that disclosing the evidence would harm national security and threaten the UK's vital intelligence-sharing arrangements with the US." The article also notes that the Court simply did not believe that the Obama administration would follow through on these threats, but instead issued them only at the behest of British officials, who needed a pretext for ongoing concealment.