[wvns] Binyam Mohamed: text of court's criticism

Binyam Mohamed: text of letter which reveals court's criticism of
'deliberately misleading' security service:

Here we publish a lawyer's letter detailing how the Master of the Rolls condemned MI5 for withholding intelligence from the foreign secretary and the courts over complicity in torture

http://www.guardian.co.uk/world/2010/feb/10/binyam-mohamed-torture-letter [http://r20.rs6.net/tn.jsp?et=1103028329089&s=108072&e=0017Q_xz60XSrmp6E8ZSJ_cjHL1uc92NeroKxZG9aKtoXqxw7T9M_jBLR2aq-iPmyEa2n0CczvjS-BjIa26KbbyVfMSOoTXauh7JJKKdgSMxId_HzI2gye75t9DW3JLeSGEzWkCMGbmg9Y2YYn8DosnCRsyCePb8EG4UJF_TekqWzdkHl2QYZLELTIhC48w9suM]

Binyam Mohamed: the government lawyer's letter to the court of appeal, annotated by Ian Cobain
Wednesday 10 February 2010

The government's lawyer, Jonathan Sumption QC, wrote a letter to the court of appeal on Monday in which he protested about the withering criticism of MI5 in the draft copy of the Binyam Mohamed judgment.

The appeal judges, led by the Master of the Rolls, Lord Neuberger, agreed to redact one paragraph, number 168, which was particularly critical of the security service. A decision will be made on Friday about whether this paragraph, or part of it, will be published.

However, the court ruled today that Sumption's letter could be made public - and this makes clear the condemnation of MI5 by the Master of the Rolls.

In Sumption's own words, he states that anyone reading the original judgment would believe "that the Security Service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques".

Here the Guardian's Ian Cobain annotates the key points in Sumption's letter. Click on the yellow highlighted text to read Cobain's analysis. [from above url]

8 February 2010

Dear Sirs,

Case No.: TI/2009/2331/QBACF: R (Binyam Mohammed) v. Secretary of State for Foreign and Commonwealth Affairs

Judgment is due to be delivered in this case on Wednesday 10 February 2010. The Court will be receiving a separate letter about typing corrections and other obvious errors. The purpose of this present letter is to deal with an important matter of substance, which I would invite the Court to consider before handing down their judgment in final form. I would be grateful if you would lay it before them.

At paragraph 168 of his Judgment, the Master of the Rolls makes some observations about the previous 'form' of SyS. I assume from the context that he is referring to the Security Service, although in paragraph 64 the Master of the Rolls defines SyS as including the Secret Intelligence Service as well, and a reader less familiar with the context might assume that he was referring to both.

The Master of the Rolls's observations, to whichever service they relate, are likely to receive more public attention than any other part of the judgments. They will be read as statements by the Court (i) that the Security Service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques; (ii) that this was in particular true of Witness B whose conduct was in this respect characteristic of the service as a whole ('it appears likely that there were others'); (iii) that officials of the Service deliberately misled the Intelligence and Security Committee on this point; (iv) that this reflects a culture of suppression in its dealings with the Committee, the Foreign Secretary and indirectly the Court, which penetrates the service to such a degree as to undermine any UK government assurances based on the Service's information and advice; and (v) that the Service has an interest in suppressing information which is shared, not by the Foreign Secretary himself (whose good faith is accepted), but by the Foreign Office for which he is responsible.

The first point that I would make about this is that the conduct of Witness B, was referred by the Attorney-General to the Crown Prosecution Service and is currently under investigation by the police. If the observations in the draft Judgment appear in the final version, the publicity likely to be given to them would be highly prejudicial to any criminal proceedings that might subsequently be brought, as well as to the current civil proceedings brought against the United Kingdom Government by Binyam Mohammed among others.

More generally, the Master of the Rolls' observations, which go well beyond anything found by the Divisional Court, constitute an exceptionally damaging criticism of the good faith of the Security Service as a whole. In particular, the suggestion that the Court should distrust any UK government assurance based on the Service's advice and information will unquestionably be cited in other cases and, if applied more widely, would mark an unprecedented breakdown in relations between the Courts and the executive in the area of public interest immunity. The statements of ministers in this area, although embodying their own judgements, are often necessarily based on the information and advice of the Security Service. I am bound to suggest, which I do with genuine and not just forensic. respect, that such grave criticisms of a public service and those who work in it should be made only if the issue is fairly raised in advance and the Court has an exact knowledge of the relevant circumstances. To categorise a problem as systemic is rarely a straightforward matter. In this case, it would be necessary at the very least to examine the methods and procedures of the Security Service in relation to the interviewing of detainees as well as the giving of information and advice to ministers; the basis on which the statement to the Intelligence and Security Committee was made, and what further information was provided to them, in particular about the treatment of detainees; what (if any) other instances there are of the Service's knowledge of ill-treatment of detainees interviewed by them, how information of this kind is stored, on what occasions it is retrieved, how widely it is disseminated within the Service and what the Service's response was. The Court has not been in a position to do any of this. It simply does not have the material. Even if it had, ordinary considerations of natural justice would suggest that those responsible for the management of the Security Service should have had a proper opportunity to respond. No submission as extreme as this was made during the hearing, let alone supported by evidence. The Service has received no notice whatever of the Court's intention to make such sweeping criticisms.

As to the statement that the Foreign Office has an interest in suppressing information, in its present form this reads like an accusation of bad faith against those Foreign Office officials who have advised the Foreign Secretary. It may be that this was not intended. Certainly I am not aware of any material before the Court whic suggests that such an interest exists, or that any Foreign Office official has allowed it to influence advice given in the public interest to the Foreign Secretary, in this or any other case.

I respectfully invite the Court to reconsider whether paragraph 168 is necessary to its decision, and whether it really does justice to those involved.

Yours faithfully,
Jonathan SUMPTION Q.C.
cc. Nicola Smith, Treasury Solicitor
Dinah Rose QC

The draft judgment must contain comments that the judges made about the past record of SyS - the Security Service - in relation to its use of coercive interrogations, more commonly described as torture. These comments do not appear in the rewritten judgment.

Although the government cannot ask the court to rewrite judgments in order to avoid adverse publicity, this appears to be exactly what it is attempting.

In 2004, MI5 made this claim to the Intelligence and Security Committee (ISC), the group of MPs and peers that is supposed to oversee its work. The committee broadly accepted that assurance in a report published in March 2005. MI5 has since responded to questions from the Guardian about its involvement in torture by claiming that this ISC report had given it a "clean bill of health". The appeal court saw evidence that contradicted what MI5 told the ISC, and concluded that the agency does not, in fact, respect human rights.

MI5 has been insisting for years that it is not involved in torture, despite clear and mounting evidence that it is. According to Sumption's letter, the appeal court's draft judgment flatly rejects MI5's claim.

The MI5 officer who gave evidence before the court is now the subject of a criminal investigation by Scotland Yard detectives.

Sumption's letter informs us that the draft judgment makes clear that the judges concluded that Witness B was far from alone - other MI5 officers have been complicit in torture. Scotland Yard is also investigating an MI6 officer, and it is thought that the detectives' inquiries about MI5 are not confined to Witness B.

This is a statement that may have long-term ramifications at Westminster, where many MPs regard the ISC as little more than an adjunct of MI5 and MI6, rather than a proper and effective select committee. Some MPs say they are well aware that the courts and the media are currently doing a better job than parliament of holding Britain's security and intelligence agencies to account. The assertion that MI5 has been pulling the wool over the committee's eyes will increase pressure for a new system of parliamentary scrutiny, by a well-staffed and funded committee, appointed by parliament rather than the prime minister, and sitting in public whenever possible.

Not only the ISC, but the foreign secretary, David Miliband - and even the court of appeal - has not been told the full truth by MI5. Sumption's letter suggests that the most senior judges in the land have concluded that MI5 has been misleading some rather important people.

Perhaps the most damning disclosure in the letter. For several years, David Miliband, Alan Johnson and Jacqui Smith before him have been claiming that the British government and its agencies "do not participate in, solicit, encourage or condone" the use of torture. The letter suggests that the court has concluded in its draft judgment that the culture of suppression runs so deep at MI5 that those assurances, when based upon information from MI5, are worthless

MI5 has wanted to conceal from Miliband information that was held not only in its own files, but in Miliband's own department's files.

A clear indication of the sort of condemnation of MI5 that was in the draft judgment before it was rewritten at the government's request.

Sumption was warning that paragraph 168, one of the key paragraphs of the draft judgment, would be seized upon by lawyers involved in the growing number of torture and rendition cases being brought against the government, MI5 and MI6. Within hours of the publication of the letter on the Guardian website, several lawyers representing victims of torture were indeed studying its contents.

MI5's conduct in the Binyam Mohamed case has been so dishonest, according to Sumption's account of paragraph 168 before it was rewritten, that it threatens to undermine the courts' trust in reassurances from government ministers when those reassurances are based upon information passed on by MI5. How this lack of trust would be restored by rewriting the paragraph remains unclear.

This appears to refer to Sumption's previous comments about the court's observation that MI5 has previous "form" for concealing evidence of its involvement in torture. Sumption suggests that the court does not know enough about MI5's operations to conclude this. This may be a bold argument to make, given that the judges appear to have concluded in their draft judgment that MI5 has been concealing evidence from them.

Critics of MI5 say it is highly unlikely that its senior officers would want the court of appeal to be in possession of this information, regardless of how useful Sumption suggests it might be.

A legal point being made in what is otherwise a letter that appears to be largely concerned with persuading the court to conceal its scathing condemnation of MI5 over its involvement in torture, and MI5's subsequent attempts to conceal evidence of its involvement in torture.

Sumption's letter informs the public that the court's net widened, and that the draft judgment accused foreign office officials, as well as MI5 officers, of concealing evidence. Of course, he adds, this would not have been intentional.

A final plea from a man described as one of the most formidable figures at the bar.

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