Foreign secretary claims security would be harmed by disclosing CIA files on UK involvement in abuse of terror suspects abroad

• Richard Norton-Taylor and Afua Hirsch
• guardian.co.uk, Sunday 13 December 2009 18.41 GMT
• Article history

Undated handout photo of Binyam Mohamed. Photograph: PA

Efforts will be stepped up tomorrow to suppress evidence of British involvement in the unlawful treatment of a UK resident, Binyam Mohamed, who says he was tortured in Pakistan, Morocco, and Afghanistan before being secretly rendered to Guantánamo Bay.

The foreign secretary, David Miliband, is appealing against six high court judgments ruling that CIA information on Mohamed's treatment, and what MI5 and MI6 knew about it, must be disclosed.

In a case which lawyers on all sides agree is unprecedented, counsel for the Guardian and other media organisations, Mohamed and two civil rights groups, Liberty and Justice, will argue tomorrow that the public interest in disclosing the role played by British and US agencies in unlawful activities far outweighs any claim about potential threats to national security.

Miliband's lawyers will tell Britain's three most senior appeal court judges, led by the lord chief justice, Igor Judge, that if the CIA material is disclosed the US might cut off the supply of intelligence to the UK, thus harming national security.

Since losing in the high court, David Millband has instructed one of the country's most expensive advocates, Jonathan Sumption QC, to represent his position. Sumption, who recently withdrew his application to become a justice of the supreme court after reports of "hostility" from other judges, is reported to earn up to £3m a year and is described by experts as one of the bar's "most formidable" opponents".

Sources say the decision to instruct Sumption comes amid growing concern within the government at the high court rulings, which officials had confidently expected to be in their favour.

In their six judgments, Lord Justice Thomas and Justice Lloyd Jones repeatedly challenged Miliband's claims. It is the first case in which the high court has questioned head-on claims by a government that evidence must be withheld on grounds of national security.

At the heart of the dispute is a seven-paragraph CIA document that the British government insists must remain secret. The two high court judges, who have seen the document, insist it does not contain any sensitive intelligence material. "What is contained in those seven redacted paragraphs gives rise to an arguable case of torture or cruel, inhuman and degrading treatment".

The judges stated after hearing arguments put by Miliband's lawyers: "It was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters."

They added: "Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials, or officials of another state, where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be".

The two high court judges continued: "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," they ruled.

"A vital public interest requires ... 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 ... Championing the rule of law, not subordinating it, is the cornerstone of democracy," they added.

The CIA information includes an account given to British intelligence "whilst [Mohamed] was held in Pakistan ... prior to his interview by an officer of the security service", the judges revealed earlier this year. The officer, known only as Witness B, is being investigated by the Metropolitan police for "possible criminal wrongdoing".

Miliband's claim that Britain's intelligence relationship would be jeopardised "lacks credibility on its face", the judges added.

The Guardian and other newspaper and broadcasting media groups argue that there is no wider public interest to be taken into account in the case than "open justice, the rule of law and democratic accountability".

Miliband was accused in the high court of wanting to suppress information about CIA activities even though details had already been disclosed by the Obama administration. Evidence that Miliband still wanted kept secret related to the question why "it was impossible to believe that President Obama would take action against the United Kingdom", the judges said.

Lawyers acting for the foreign secretary point to a letter sent by the CIA to MI6 in April, saying that if British judges ordered the information at issue to be disclosed the US might reassess its intelligence-sharing relationship with the UK. "The evidence that disclosure would cause serious harm to national security is overwhelming," Miliband's lawyers claim.

They point to a law lords ruling last year that the Serious Fraud Office could not pursue corruption allegations over arms sales by BAE Systems, Britain's biggest weapons maker, to Saudi Arabia because the Saudi government had threatened to stop intelligence-sharing with Britain. The case, in which Sumption also represented the government, has been described by critics as weakening the UK's reputation for observing the rule of law.

Finally I have indisputable documentary evidence that the British government had a positive policy of using intelligence from torture in the War on Terror, and that the policy was personally directed by Jack Straw.

Here are the minutes of the meeting at which I was told this:

Download file

All references to the CIA and MI6 have been literally cut out, but the meaning is still perfectly unmistakeable particularly given the heading of the minute.

And here is the absolute smoking gun of Jack Straw's involvement::

Download file

Straw has been lying about this for five years. He dismissed my evidence on this to the Parliamenary Joint Committee on Human Rights as "Entirely untrue".

http://www.craigmurray.org.uk/archives/2009/10/either_craig_mu.html#comments

Straw ruined my career over my opposition to torture intelligence, after I had been appointed Ambassador by his predecessor, Robin Cook, who was rather more well disposed towards human rights. It is wonderful that it is Robin Cook's Freedom of Information Act which I have used to finally prove beyond any doubt that slippery Straw was up to his neck in approving intelligence from torture.

Minutes available as a JPEG here:
http://www.edavies.nildram.co.uk/2009/11/torture/

High court orders publication of US report, saying British foreign secretary's actions were harmful to the rule of law

• Richard Norton-Taylor
• guardian.co.uk, Friday 16 October 2009 17.31 BST
• Article history

Binyam Mohamed arrives in London after his release in February from US custody. Photograph: Lewis Whyld/AP

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."

The judges sharply criticised the way Miliband and his lawyers tried to persuade the Obama administration to back the suppression of the CIA material. Lawyers acting for Mohamed, the Guardian and other media organisations pointed out that Obama had himself set up an inquiry into CIA practices and published details of their interrogation techniques.

In the end, Miliband had to rely for help on a CIA letter to MI6 claiming that disclosure of the document would harm the security of the US and UK.

The judges made it clear they did not believe the claim was credible. "The public interest in making the paragraphs public is overwhelming," they said.

The document would show what Witness B – an MI5 officer who interrogated Mohamed in Pakistan in 2002 – knew about Mohamed's condition before he questioned him incognito in a Pakistani jail, the judges said.

The CIA secretly flew Mohamed to Morocco, Afghanistan and then Guantánamo Bay, the court has heard. The judges criticised MI5 and MI6 for the belated disclosure of documents that revealed an MI5 officer was in Morocco when Mohamed was held there in a secret jail.

Miliband's lawyers continued to argue that a number of passages in the judges' ruling must be redacted as well as the seven-paragraph CIA document.

Jonathan Evans, the head of MI5, admitted in a speech at Bristol University on Thursday that the Security Service had been "slow to detect the emerging pattern of US practice in the period after 9/11".

"But it is important to recognise that we do not control what other countries do, that operational decisions have to be taken with the knowledge available, even if it is incomplete, and that when the emerging pattern of US policy was detected, necessary improvements were made."

He repeated the mantra that MI5 "does not torture people, nor do we collude in torture or solicit others to torture people on our behalf".

However, he said the situation posed a dilemma. "Given the pressing need to understand and uncover al-Qaida's plans, were we to deal, however circumspectly, with those security services who had experience of working against al-Qaida on their own territory, or were we to refuse to deal with them, accepting that in so doing we would be cutting off a potentially vital source of information that would prevent attacks in the west?

"In my view we would have been derelict in our duty if we had not worked, circumspectly, with overseas liaisons who were in a position to provide intelligence that could safeguard this country from attack. I have every confidence in the behaviour of my officers in what were difficult and, at times, dangerous circumstances".