"Cruel, Inhuman and Degrading Treatment by the United States Authorities" … BEFORE the Bybee Memo

As Bill Egnor has reported (and Jim White mentioned here) a court in the UK has forced the government to release a passage of an earlier court ruling that it had fought to suppress. Assuming the passage has been released in complete form, the key passage concludes that the sleep deprivation that Americans subjected Binyam Mohamed to while held incommunicado in Pakistan was “at the very least cruel, inhuman and degrading treatment by the United States authorities.”

Now, this revelation is critical not just because it shows British Courts concluding that, at the very least, the United States violated the Convention Against Torture. As Jim White notes in his diary on this, the US is now obligated by the Convention Against Torture to investigate this act.

But note two details of the passage.

It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer. [my emphasis]

Mohamed was subjected to sleep deprivation, the British Government tells us, more than 75 days before the Bybee Two memo authorized such treatment.

And that abuse was inflicted by “an expert interviewer” implementing “a new strategy.”

That “expert interviewer” and that “new strategy” almost certainly were associated with Mitchell and Jessen, who were at that moment pitching using their “new strategy” with Abu Zubaydah.

So this is not just proof that the US was engaging in torture before they got their CYA memo authorizing such torture. But it was proof that they were using Mohamed, in addition to Abu Zubaydah, as guinea pigs to test out that torture.

This proves the entire myth told to explain the torture memos (and Abu Zubaydah’s treatment) to be a lie.

Updated with link to Jim White’s diary.

  1. Jim White says:

    Isn’t it interesting that the very issue of the timing for when when Mohamed was tortured has a typo (has the date in 2001 rather than 2002) on the British Foreign Office press release announcing the released paragraphs? Is it possible Miliband is very unnerved about the way the US is exposed without the Bybee memo having been published yet?

    Edit: left out link to Miliband’s press release:

    I also did a diary on the release of information here, where I pointed out that this finding by the British High Court invoked the specific language of the Convention Against Torture and that as a signee, the US is now bound to investigate the torture that occurred.

    Like that will ever happen…

    • skdadl says:

      I wrote too, Jim, in my modest way. Thanks for waking me up with the news this morning, and yes, short as those seven paragraphs are, the date and the MO leap right out at anyone who has been reading EW these past few years.

      I’ll go to read your diary now, and then add an h/t to my post, which you can find by clicking on my handle.

  2. BoxTurtle says:

    The DoJ already knew this. The DoJ has already declined to act upon this. The stories across the pond read more like the British government is apologizing to the United States rather than demanding accountability.

    The British courts will likely proceed on their own, however. And the Hague now has undeniable evidence (some might say proof) that BushCo committed war crimes. And that ObamaCo is covering them up. Other countries that were willing to let America maintain the fiction of innocence may not be so willing now.

    Still, neither Fox nor CNN seem to have noticed this yet.

    Sad that we have to pin our hopes for justice on a foreign court. Didn’t we revolt against the Brits partially because we didn’t like their courts?

    I still have this silly vision of Serbian commandos swooping into Texas, arresting Bush and delivering him to the Hague for storage right next to their boss.

    Boxturtle (But then I’ve always loved irony)

  3. whitewidow says:

    Ironic that even though UK traditionally has had more draconian secrecy laws, they are actually doing more to expose the lawbreaking than we are, with court rulings and the Chilcot thing.

    I wonder how that DOJ torture investigation is going.

    The latest revelation out of Chilcot is that the Brits lied about Chirac/French unwillingness to support a UN resolution when selling the Iraq war. The Bush admin and Blair agreed to blame the French and go full speed ahead.

    Tangential topic: The Patriot Act renewal had been added to the jobs bill.

    • emptywheel says:

      I’m not at all worried about PATRIOT being included in the jobs bill.

      It’s just an extension to later this year (as it was already extended in December). If they had to push through something now–just weeks after Scott Brown won in MA on a pro-waterboarding policy and not long after they didn’t connect the dots on the undie bomber–we’d be lucky if we had any protections, if htey didn’t make it far worse. Let’s let the time pass, and show that they didn’t connect the Undie Bomber dots because they have too much, rathre than too little, data mining information.

  4. BoxTurtle says:

    Looks like Time at least has picked it up, though they sanitized it a bit.

    No offical American comment, I wonder if there will be one. If there is one, I bet they don’t take questions.

    I think Holder agreed to “look forward” as part of his nomination. Shortly thereafter, he saw information that I think caused him to regret that. I wonder if he will use this to tell the “forward lookers” to lawyer up. Or if he will refer to some never to be public investigation his department is diligiently undertaking.

    Boxturtle (I think he sold his soul. We’ll see)

  5. scribe says:

    A couple things:

    First, the UK government sucessfully got the judges to modify their opinion prior to releasing it, through an ex parte letter to the Court. The modification watered it down – apparently, it ruled that neither the government nor the oversight boards could rely on MI5 being honest when it came to telling them that they did not torture, and that a culture of torture pervades MI5.

    When Binyam’s lawyers – not copied on it initially – got their hands on the ex parte letter sent by the government’s lawyers to the Court, they leaked it to the press, and we now get to read it. It tells us even more than the opinion. Binyam’s lawyers have apologized for the leak, profusely. Leaking this letter is, speaking in lawyerese, a profound “fuck you” to the guys who sent it. Ex parte contact with the court is always a dubious enterprise, ethically speaking, and guaranteed to burn whatever accumulated goodwill between counsel which might have grown in the course of the litigation.

    I also note that the letter appears to address some typos in the draft opinion.

    Finally, we have from Guardian a liveblog of Foreign Secy Milband reacting to the Binyam Mohammed judgment. He seems a bit unnerved.

    Apparently, he talked to HRC today about it, and this is being followed “At the highest levels” in DC.

    And, it would seem from the letter that one of the witnesses, “B”, is under investigation by the Crown Prosecution Service. Whether that is because he was allegedly involved in torture or because he allegedly lied, we don’t know. But, it would appear a Lyndie Englund situation is (or might be) playing itself out across the pond.

    Second, I’m getting tired of being the Cassandra in this piece.

      • skdadl says:

        Remember the classic definition of chutzpah? Kid kills both his parents and then throws himself on the mercy of the court as an orphan. That seems to be the position of the Obama administration.

    • skdadl says:

      The letter is priceless, isn’t it? And its release by Mohamed’s lawyers, as you say, a profound FU. I’m sure we’ll have the original paragraph back by Friday.

      That’s the way this case has proceeded for the last year and a half. Every time Miliband tries a cover-up, the High Court judges have revealed more and more of the evidence they’ve seen in their patient replies to him, so we knew a lot of the content before it was actually published. And now the letter — it so belongs in this plot. I’ve been chuckling all morning.

      I’ve been hoping for some time that the spine that the High Court judges have shown could set a precedent that our own timid judges could follow in the face of phony claims of one kind of executive privilege or another. It could have an impact on the Khadr case here, eg, and others. Our judges back into their warnings to Steve about constitutional violations; the High Court judges have just kind of smiled at Miliband and told him they weren’t buying.

      I have a vague memory of other documents as well …

  6. klynn says:

    From the Guardian:

    Rusbridger said: “It is good news that – after a challenge from the Guardian and other news organisations – the courts have finally ordered the government to reveal evidence of MI5 complicity in torture. This is a watershed in open justice in an area in which it is notoriously difficult to shine a light.

    “But it was extremely disturbing that the government’s lawyers made a successful last-ditch attempt to get the master of the rolls to rewrite his judgment, which had already been circulated in draft form.

    “There are now effectively two judgments. The one released today is a watered down version of the original judgment – diluted at the request of the government, via its leading counsel, Jonathan Sumption QC. A crucial passage has been removed.

    “The Guardian and Liberty and Justice intervened last night to express their concern at what had happened. We are today publishing Sumption’s extraordinary letter, which describes the passage which was dropped from the published judgment. It is good that the master of the rolls has agreed to reconsider his decision to rewrite his judgment in response to government representations.”

    (my bold) And, my favorite part of the article. Hey MSM in The United States: I want that watershed moment in the United States to shine a light for justice.

    Thanks EW, JimWhite and skdadl.

  7. earlofhuntingdon says:

    The NYT’s John F. Burns’ take on this is much more Washington establimentarian. After noting that the British government lost its protracted legal battle over transparency, he describes what it did in response – it immediately published details of the offending summary description, carefully segregating in quotes the British government’s claims from the actual behavior of the US government they describe:

    what [the British government] called the “cruel, inhuman and degrading treatment” administered to the detainee by American officials.

    Burns downplays the disclosure by saying that the CIA had previously disclosed, “the so-called “stress” techniques used by American interrogators while questioning terrorist suspects after the Sept. 11 attacks.” He saves for paragraph eight – which most readers never get to – what is “starkly new” in this disclosure:

    the Foreign Office’s conclusion that the treatment Mr. Mohamed endured, had it been carried out at the behest of British officials, would have amounted to a breach of Britain’s international treaty commitments banning torture.

    His final paragraph he gives to the loser, David Miliband, in this litigation (emphasis mine):

    Acknowledging Mr. Mohamed had been right to charge that he had been mistreated, Mr. Miliband added, “This judgment is not evidence that the system is broken; rather it is evidence that the system is working and the full force of the law is available when citizens believe they have just cause.”

    Miliband’s spin is comparable to the claim that a Gitmo detainee’s suicide is “asymmetrical warfare”. If that’s the system working, heaven help us when it stops working.

    Finally, Burns avoids the obvious issue: If Mr. Mohamed’s treatment, had it been done by UK authorities, would have amounted to torture, how is it not torture when done by the US?

    I should also add that Burns does not do what the Guardian did. He does not link to the Foreign Office website or actually quote in full the seven paragraph description; he merely paraphrases it.

    • klynn says:

      I should also add that Burns does not do what the Guardian did. He does not link to the Foreign Office website or actually quote in full the seven paragraph description; he merely paraphrases it.

      The whole reason I posted my comment @ 10

      • earlofhuntingdon says:

        My point is different. The Guardian worked hard in pushing this case and in obtaining both the original and revised texts of this judgment.

        The NYT’s and/or John Burns, on the other hand, is treating this as another foreign news story. He avoids quoting the judgment or indicating that there are really two judgments. He studiously puts claims in quotes, as if they remain suspect conclusions.

        Most obviously, Burns downplays this news by not addressing the obvious implications of this judgment for the US. Among other things, he leaves the reader with Miliband’s obscene assurance that this case shows the system “working” rather than that it is badly broken. Even on his own terms, one would have to ask Miliband (Burns does not), on whose behalf is that system working.

        • klynn says:

          My regrets if I implied a disagreement.

          I was agreeing with you and referencing my comment in doing so.

          “…after a challenge from the Guardian and other news organizations – the courts have finally ordered the government to reveal evidence of MI5 complicity in torture. This is a watershed in open justice in an area in which it is notoriously difficult to shine a light.”

          Burns and the NYT’s failed to shine a light.

        • earlofhuntingdon says:

          Sorry if I misunderstood your comment. I am annoyed at the Times continuing poor coverage of what it continues to describe as “so-called” stress positions, “enhanced” interrogations, and “what critics and the great unwashed might, possibly, conceivably imagine as some form of possible torture.”

          As you say, Burns covers the obvious without inquiring too deeply into it. He doesn’t mention the seniority of the three judges who issued this judgment; they are at the top of the food chain. That he misses the following comment, which the above cited Guardian article ends with, is disturbing for a newspaper that claims to print all the news that’s fit to print:

          In the high court last year, Lord Justice Thomas and Mr Justice Lloyd Jones ruled that it was clear from the evidence “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”.

        • earlofhuntingdon says:

          That would have been a good segue into observations about the US’ continuing prosecution of Omar Khadr, via military commission, accusing him, essentially, of murder.

          If Khadr, who was also tortured by or at the behest of the US government, was a child soldier and threw a hand grenade that killed opposing forces, he has the protected status of a combatant. If he was a civilian, he arguably had a right of self-defense in opposing the violent, armed incursion of his home and village. Then, of course, like Mohamed, he might have done nothing the US government accuses him of doing. But the US and Mr. Obama are determined to “try” him anyway.

        • skdadl says:

          And our PM is determined to let them do that, in the face of court judgements telling him repeatedly that the government of Canada has violated Khadr’s human rights. The perversity: it overwhelms.

        • earlofhuntingdon says:

          Nice site you have there; first time I’d visited. Now I’ll be able to learn more about Canada than the price of croissant, coffee and beer on Yonge St.

        • skdadl says:

          That’s mainly my boss. I am mainly the comic relief. I also do a lot of memorial posts. You wouldn’t believe how slow I am as a writer, so I never get the scoops.

          Some of that, of course, is EW’s fault. It takes a lot of time and concentration to keep up with y’all hereabouts. Jim caught me at a good quiet time this morning, and these cases are kind of a commitment.

        • powwow says:

          The NYT’s and/or John Burns, on the other hand, is treating this as another foreign news story.

          See, also, in that regard, the downplayed-in-the-extreme treatment of this story, at the moment, on the HuffingtonPost. Waaay down the center column there’s a small headline about it [“Britain Discloses Secret Info On U.S. Abuse of Gitmo Detainee” tagged as linking to their “World” page]. Higher ranking in that column is, among other things, a headline about ex-baseball player Lenny Dykstra’s investment advice. Meanwhile, at the top, up in lights, is another assiduous defense (though in a good cause, focusing on politicized GOP hypocrisy about using our judicial system for suspected terrorists) of the Obama administration.

  8. klynn says:


    Have you thought about doing a post on the role of the media in this process? It is a central focus.

    Additionally, any thoughts on how this could affect ACLU cases, if at all?

  9. earlofhuntingdon says:

    As for Burns’ claim that this judgment presents something “starkly new”, it does so only in officialese and only to those who believe Washington’s description of its own behavior. That would include the entire American tradmed. Everyone else, including the US and UK governments, knew damn well or had substantial reasons to suspect what the US has done for years in criminally mistreating prisoners under its absolute control. Presumably, that’s a major reason Mr. Obama is determined to lead according to the tenets of hear, speak and see no evil.

  10. DeadLast says:

    Sleep deprivation may be considered torture, but slicing his genitals with a scaple…that was a medical proceedure!

  11. Mary says:

    What’s fun is to read the reasons Sumption argued with respect to getting the court to remove the paragraph (gee, there hasn’t been a full blown investigation and you can’t know if things are as bad as you are implying without a full blown investigation) in conjunction with the questioning of Milliband scribe linked (apparently politicians in Britain do a way better job than MSM here in the state) where he (Milliband) repeatedly says, “oh, noes, there can’t be, won’t be, never ever could should be – a full blown investigation”

    I seem to recall another situtation where the court was told one thing (the US is threatening the Brits) and then Parliament was told something else (heck no, no one with the US ever threatened us) and the court was a bit miffed. I’d kind of think after Milliband’s statements to parliament that there is not going to be an investigation maybe Sumption needs to revise his reasoning.

    Milliband has bent over backwards to drop this in Holder’s lap, with his talking point drone like repetition of the need to protect the Control Principle and that it was only bc of the info that the US gov had put in the public domain itself (Holder) and already (no one asked him if the US had put in the public domain that it was torturing well in advance of the Aug memos) that this info was released. Wait for the Republicans to find a way to massage that around.

    I especially like the US saying that if it shares its pedophile pics, it expects Billy to keep them under his mattress and not let his mom know what it is Uncle Sammy is doing behind those closed doors. Or. Else.

    Or else what? The US will put Americans visiting or working with Britain at risk by refusing to share intel? The US will put other allies who have dealings with Britain at risk by refusing to share intel? Really – Obama is going to threaten to put Americans studying and working in Britain at risk bc …

    Wait – let me get this right.

    Torture makes Americans safer because when we torture, if anyone around the world mentions it then we will stop sharing intel on terrorism with that country.

    Yeah – that makes things safer.

  12. Mary says:

    If Obama weren’t so committed to his torture cartel, this would be a great juncture to counter the, “we can’t give terrorists *rights*” crew with: This is what happens when we abandon the rule of law and disappear people into abuse instead of using sound interrogation and due process techniques. {Insert discussion of BM visiting the spoof sites on how to make a nuke and how that was used as a basis for torturing him and his torture was then used as a basis for the torture of AZ as a high value al-Qaeda operative when he was not – and a “see, that’s why we have trials instead of black site torture chambers}

    As long as he remains committed to the “nothing to see here, move along, move along” rhetoric, his problems will only compound. If you don’t admit to and understand the problem as the first step, you can’t fix it. Pouring gasoline into a car won’t make it start if the battery is dead.

  13. Mary says:

    BTW – some of the other BM torture, like the scapels, isn’t addressed, presumably bc it happened later, in Morocco, and maybe Britain wasn’t getting direct sharing of that info?

    It is worth noting that when they began using the sleep deprivation and threats approachon BM, they had to put him under “self harm” watch – far from “assymetric warfare” it’s clear that they knew their “new methods” were pushing him into a suicidal state. And they kept at them.

    It’s also of note that the Brits knew the US was threatening to disappear him – – and then they pretty much had to know that he was disappeared. That would have been a nice question for Milliband, not just who knew he was being tortured and when, but, given that they knew the US was threatening to disappear BM, what actions did they take when the US did, in fact, disappear him?

    And then there’s the reference to all the reports coming in – this 7 paragraphs is available, but where those reports made available to his lawyers.

    And finally there’s the direct question of “Control Principle” meeting obligations under CAT. “Mr. Foreign Secretary, are you saying that the Control Principle means that if a foreign government shares information that it is engaged in torturing a detainee, the Control Principle would supercede our obligations under CAT and require that we keep information about lawless assault and depravity covered up?”

    I’m guessing Koh is proud of that US press release. Or not so much.

    • emptywheel says:

      My understanding is they don’t address the scalpel to the genitalia because they don’t have the same level of proof of it (that is, emails acknowledging it) and so the judges haven’t issued the same kind of ruling on it.

      • Mary says:

        Right – that’s what I meant by “and maybe Britain wasn’t getting direct sharing of that info” My understanding is that while he was in geographically in Pakistan and nominally (but not operatively) in Pak hands, they got much more direct info and it was shared in writin in SyS reports.

        Once the US worked the deal with Morocco to take him, Morocco was more directly in charge of the torture and the US would have had to share Moroccan reports to the US with Britain, which it wasn’t going to do in any kind of writing.

        MI5 has said

        it did not know anything about the Moroccan part of his detention

        It isn’t clear which country the interrogators in Morocco were from, but Mohamed has alleged the questions put to him could only have come from British intelligence agents.

        MI5 has said it did not know Mohamed was being tortured, or held in Morocco

        Witness B is claimed to have gone to Karachi while BM was there and met with him, but there are not similar claims re: Morocco (that an MI5 agent was present or met with him) although BM claims the questions he was asked in Morocco could only have come from British sources and that makes him believe there was UK involvement in and knowledge of the Moroccan torture as well.

    • Jim White says:

      I’ll have to go back and check Worthington’s long article to make sure, but I’m pretty sure the genital slicing happened before he came into US custody. To me, that is part of what makes the threats about being “disappeared” even worse: it would be reasonable for him to presume that would mean going back to the folks who did this for them to finish the job of slowly and painfully killing him. That is a very credible threat of death that itself constitutes torture.

      • Mary says:

        No – it happened after the US & Pakistan had him, then the US shipped him to Morocco. What then happened (per Gray’s account in Ghost Plane and since then BM’s account to other sources) is that when the US went to pick him up from Morocco and take him to GITMO, they followed their normal porn procedures and stripped and photographed their nude detainees, but the evidence of the scalpeling was still evident and even the US girlie who was being so patriotic and snapping away at the genitals of a stripped and bound man got a little erpy over the sight of it.

        • Jeff Kaye says:

          Well, we will be looking at the many implications of this for some time. Don’t assume this is a full revelation by the Brits. For instance, there was the story of the MI6 informant in Morocco:

          In the Mail on Sunday, David Rose reported that Mohamed had explained to his lawyer, Clive Stafford Smith, the director of the legal charity Reprieve, that a British spy – a UK citizen of Moroccan descent, identified as Informant A – had been sent to persuade him to cooperate with his Moroccan torturers in September 2002. According to accounts given by Mohamed and other witnesses, Informant A had known Mohamed in London, had helped facilitate his travel to Pakistan, and, after being captured in Pakistan in the months before Mohamed was seized, had been recruited by the British intelligence services.

          The earlier timeline, circa May 2002 or before, was revealed by the judges in a letter explaining why, last November, they were still withholding the disputed secret passages. Andy Worthington reported on it at the time. I followed with a story here at FDL in early December. There were even earlier revelations, as I noted:

          Binyam was rendered to Morocco and hideous torture on July 19, 2002. While still in custody in Pakistan, we know from an account by his attorney Clive Stafford Smith in his 2006 book, Eight O’clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay, Binyam was subjected to suspension-style sleep deprivation, very much like the type that was later described by Stephen Bradbury in his May 10, 2005 memo. With the new UK revelation, we now know that Mohamed was subjected while still in Pakistan to a full array of “enhanced interrogation techniques,” such as were used on Abu Zubaydah.

          I also speculated then on the meaning of this earlier timeline:

          While Abu Zubaydah was being set-up as a “high-value” member of Al Qaeda, one of its supposed top officials, Binyam was being linked to the purported “dirty bomb” plot of Jose Padilla. This frame-up was to be cemented by beatings and psychological torture. The only problem was Binyam refused to go along. This may be one reason they dropped the “dirty bomb” charade with Padilla, and shipped him off to the Naval Brig in Charleston to become a guinea pig for extreme sensory deprivation and possible use of hallucinogenic drugs.

          In subtle but powerful ways, the news that Binyam Mohamed was subjected to the “enhanced interrogation techniques” in a period of time contemporaneous to that of Zubaydah, or behind the latter by only a matter of days or weeks, changes the torture narrative. Zubaydah is no longer the key experimental figure in the torture narrative. There was at least one other, and if one, then most likely others we have not heard about. Some of these prisoners appear to have been “disappeared.” For instance, Omar Gharmesh and a teenager who were seized at the same time as Zubaydah were rendered to Syria and have never been seen or heard of again.

          The fact that some kind of experimentation may have been going on — such as they openly spoke of using on Zubaydah — can be inferred from this statement in the newly released court material:

          The effects of the sleep deprivation were carefully observed.

          By whom? Doctors or psychologists? And why?

          Reports of medical experiments on prisoners are the ticking time bomb of the torture scandal.

          Bottom line: breaking the real story on Binyam Mohamed is a direct link to what was going on in U.S./British torture circles as far back as November 2001, and included the origins of the terrorist amalgam that the administration was setting up around the supposed “dirty bomb” plot. That includes the collaboration of FBI (Soufan and others), the CIA, etc. There was no “dirty bomb” plot. They set it up, of this I am sure, and Zubaydah was supposed to be the “mastermind” who sent out Binyam and Jose Padilla to do the dirty deed.

          But AZ was kind of insane; Jose Padilla unsophisticated and targeted for “psychic driving” brainwashing kinds of procedures via total isolation, sensory deprivation and hallucinogens. Binyam was never supposed to get out of Guantanamo. He can thank his lucky stars that Reprieve latched onto his case, and his own tremendous powers of survival, that kept him from lapsing into suicidal despair or insanity.

          These crimes are of the worst sort. It was opined in Bill’s diary that the Senate or Congress as a whole would be dragged to a halt if the needed investigations (a new Church/Pike Committee) were undertaken. This is very short sighted. The country is already being dragged down. We can’t count on torturers and their enablers to enact a progressive program. They must be cleaned out, via elections, resignations, prosecutions. Otherwise, this is only a taste of what awaits us, should the torture party, having caught its breath, and once again let off the hook, captures in its claws the full reins of power.

        • Jeff Kaye says:

          More repercussions, from the ACLU:

          National Security British Court Orders Release Of Torture Evidence In Extraordinary Rendition Case

          Ruling May Affect British Resident’s Case In ACLU Lawsuit Against Boeing Subsidiary For Its Role In Unlawful Extraordinary Rendition Program

          … The following can be attributed to Ben Wizner, staff attorney for the ACLU National Security Project:

          “The suppression of government documents confirming Binyam Mohamed’s rendition and torture by the United States has never been about protecting secrets; it has always been about preventing legal accountability for torture. There is absolutely nothing in the newly released documents that was not already widely known. The British court’s ruling will further undermine the Obama administration’s efforts to use dubious claims of state secrets to prevent accountability for torturers and justice for victims. After today’s developments, it would be a farce if Binyam Mohamed and other victims of U.S. torture policies were denied their day in court.”

        • skdadl says:

          Yes — all this is as I remember. The two High Court judges who have been so steady through this process issued a full report almost a year ago, and yes, they knew of and described in that decision the torture not only in Morocco but, if I’m not mistaken, Pakistan following. It has been a long time since I’ve read that decision, but I’m sure it’s accessible from the Guardian site.

          It was in that ruling that they first ran into the dispute with Miliband and Clinton over the seven paragraphs. That was very shortly after Mohamed returned to the UK from GTMO.

        • Mary says:

          We’ve also had a US judge (kessler), in a habeas case involving Farhi Saeed bin Mohammed, pretty much go through some of the BM torture info since he was one of the “sources” gov used to disappear FSbinMohammed into abuse.

          After detailing all kinds of info that BM alleges, Judge Kessler states:


          The Government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment.

        • skdadl says:

          I know it’s very bad of me to feel vengeful, and I’ve spent my life on Rumpole’s side, never the prosecutor, always defend, but I don’t have that many years to wait, and … I wanna get them, the torture-enablers. I want justice.

        • Mary says:

          I’d like that too – I think even more so, though, I’d like to have some kind of leadership where the narrative is seized and this country gets hammered over and over with its values and the idiocy and immorality and costs of what has been done and begins to have a national sense of rejection and determination to right the ship of state.

          I don’t think I’ll live to see either.

          @49 – we talk about so many things in comments and posts I lose track, but yes, I’m pretty sure this has been discussed in places here before at least once if not more than that.

          Interestingly, at the Siddiqui trial I’m pretty sure I read that her lawyer made a reference in closing arguments to black site detentions being a possible explanation for her seeming irrationality and there was no gov objection to that either – I can’t remember exactly the point made at the time, but you would have thought it would have solicited an objection (even in a closing where you usually don’t object) if Gov thought there was no grounds for what was said. Unfortunately, the jury never had any context for what the lawyer meant by it, or for the impact of the missing children or the importance of the info that Siddiqui might not have known the child she was dumped off with was her son as they might well have been separated for years.

          Oh well – again IIRC, Siddiqui and her son appeared in Afghanistan right around the time the Chief Justic in Pakistan was about to require accountings from gov for certain disappeared persons, including her.

        • powwow says:

          Actually, Mary, I think there may be some wheels within wheels about the reference to Judge Kessler’s December habeas ruling by the British Court/Foreign Secretary/Foreign Office (who explicitly cite that Kessler ruling as the reason the British appellate judges ordered the seven paragraphs released). [Rather than citing, as I believe the lower court judges did at one point, the OLC torture memo releases forced earlier last year by another U.S. judge (which were pushed over the line into disclosure by the anonymous leak of the ICRC torture report about Guantanamo to Mark Danner).]

          First, it seems probable that only people who knew what was in the redacted seven paragraphs would have recognized at the time the import or direct relevance of Judge Kessler’s opinion on the ongoing appeal in Britain. [So if you or anyone else caught that then, good going.]

          Secondly, I assume that Kessler’s opinion, like many of those reciting a lot of factual details or assertions, was first released in redacted form, with a fuller, less-redacted release a week or so later as approved by the Executive Branch, or at least some part of it.

          Third, didn’t the lawyers for Binyam know what was in the seven paragraphs that were concealed, though they were forbidden to reveal their contents? Or know at least the contents of the underlying document(s) that the seven paragraphs were drawn from? So that they, at least, (along with our Executive Branch and the British government), would presumably have recognized the potential import of Kessler’s December opinion on their case at the time, and would’ve brought it, and presumably did bring it, to the attention of the Appeals Court in the U.K. And apparently that indirectly-related Kessler ruling was the basis, in the end, for today’s ordered release of the seven paragraphs (I haven’t yet read the Appeals Court ruling). If so, thank you, Judge Kessler, even if you had no idea how your ruling would affect this case. And thank you, too, to whoever in Binyam’s camp was decidely on the ball and noticed how Gladys Kessler’s ruling on another Guantanamo detainee’s habeas appeal could helpfully impact the Mohamed case and appeal in Britain.

        • skdadl says:

          Aha. I get this. There are dots there that I had not connected before, but I see now. I’ve got to go back and correct myself — my lazy mind leapt to thinking of the Jeppesen case, not to Kessler’s opinion. Thanks to you for a most interesting refresher course on the order of events last year — there was so much, wasn’t there?

          Yes, Mohamed’s lawyers had seen the unredacted version of the High Court’s ruling last spring, which included the seven paragraphs — Clive Stafford Smith has told us that they’d read them but couldn’t talk about them. So from that, your presumablys follow very neatly.

          There are a lot of background documents — I can’t remember now whether there’s a dispute over releasing them. Must keep going.

          Thanks again to you and to Mary.

        • Mary says:

          …about the reference to Judge Kessler’s December habeas ruling by the British Court/Foreign Secretary/Foreign Office (who explicitly cite that Kessler ruling as the reason the British appellate judges ordered the seven paragraphs released). [Rather than citing, as I believe the lower court judges did at one point, the OLC torture memo releases forced earlier last year by another U.S. judge (which were pushed over the line into disclosure by the anonymous leak of the ICRC torture report about Guantanamo to Mark Danner).]

          Do you have a link on this? I’ve looked for the appellate opinion itself and can’t find it, only this:

          The draft judgement is unavailable, but the letter was published after an intervention from Mr Mohamed’s lawyers and those of various media organisations.

          indicatin that the opinion isn’t available yet. I’ve also seen several links to statements by Milliband, but none referencing Kessler’s opinion directly, so I’ve wondered about that.

          The high court rulings that I know of were from April 09 and Oct 09, so they didn’t have the Kessler ruling – which was issued in Nov 09 iirc, and then declassified sometime thereafter, maybe Dec? , very quietly with almost nothing in the media about it.

  14. Mary says:

    OT – more on how lack of accountability for depravity makes us safer


    In response to the dismissal of charges against Blackwater guards (maybe those are the “rights of US citizens” that Republicans are so scared will be handed over to terrorists, the rights to incorporate your terrorism)

    Iraq has “ordered hundreds of private security guards linked to Blackwater Worldwide to leave the country within seven days” Actually, they got the notice a few days ago, so they are down to 4 and counting on days to leave the country.

    Covers about 250 contractors, in general working for other companies now, but some for a Xe subsidiary STILL WORKING in Iraq. That Sub – “Presidential Airways” is currently provding security for diplomats in Iraq.

    In a special zing of irony, the Iraqi Interior Minster, al-Bolani, says Iraq just wants to “turn the page and to “go forward”

  15. ShotoJamf says:

    Photo of Bybee looks like he could be 1st runner-up in the “Father Knows Best” look-alike contest. I’ll bet he’s kind to small children, too…well…except for the electricity part, of course.

  16. CalGeorge says:

    Torture first, cook up legal justification later. They all belong in jail – not only for what they did but how they went about it.

  17. canadianbeaver says:

    Unbelievable. It’s the year 2010, and the discussion for the last 6 years or so is what constitutes torture, rather than NOT doing it. Sad. Soon you will see people shot in plain daylight on open streets and the excuse will be “they were guilty cuz I said so”.

    • Mary says:

      The Editors at The Poor Man have followed upon the “brainstorming” by Sullivan and others that the Executive be allowed to assassinate Americans, but be required to get a warrant first, with a “chart” of what kinds of “approvals” there should be for various kinds of assassinations.

      Assassination, torture, human experimentation, human drugging etc – all “prohibited” by an “on the books” Exec Order, but all with the undercurrents and stories that the EO has been surreptitiously withdrawn for years now. And the bounty program was nothing but human trafficking for persons to use in human experimentation. All pretty much out in the open, just not discussed by the media and politicians other than under a “rah rah, terrorists have no rights, bomb bomb bomb Iran” set of banshee cries.

      • Jeff Kaye says:

        Well, we still have this percolating slowly in the background. (I don’t believe anyone has given this update yet, which is current as of 1/21/10):

        Investigation of Possible Use of Mind Altering Substances by DoD Personnel during Interrogations of Detainees and/or Prisoners Captured during the War on Terror (D2007-DINT01-0092.005) This investigation responds to a request from members of the United States Senate. The objective is to determine if DoD personnel conducted, facilitated, or otherwise supported interrogations of detainees and /or prisoners using the threat or administration of mind altering drugs.

        I wrote about this OIG investigation last June, in my article on Yoo and drugs and the Army Field Manual:

        Meanwhile, the Pentagon is conducting an Inspector General investigation on the drugging of detainees in DoD custody. (Note: I gave information to the OIG on the Army Field Manual changes noted above to one of their investigators after they contacted me earlier this year.) The intervention by the IG came at the behest of Senators Carl Levin (D-MI), Joe Biden (D-DE) and Chuck Hagel (R-NE) who sent letters to “the CIA and Defense Department inspectors general calling for an investigation.” The senators were reacting to a shocking March 2008 article by Joby Warrick in the Washington Post alleging use of drugs on “detainees.” (See more in this article by Stephen Soldz.)

        It’s not known if, when complete, the report will be made public. A DoD member connected to that investigation did not return my request for information on its progress.

        Now we know that is an ongoing investigation, though what it will come to, or what the public will be allowed to see, is another question.

        • Mary says:

          Something that ties in sideways to that (other than the Padilla claims that the court never addressed in his case) is that Kessler referred to the persons involved in spiriting BM around as “soldiers” IIRC. It’s also been a standard procedure for US kidnap-to-torture victims to be anally assaulted and drugged along with being stripped and photographed. All of which was supposedly part of the CIA program for those detainees, but Judge Kessler’s reference to soldiers makes you wonder if DoD was involved in any of the transport (or if the info to the judge simply misled her into believing it was soldiers rather than CIA involved in the transport)

        • Jeff Kaye says:

          Thanks, I’ll look into that.

          A belated thanks, too, to EW for this excellent post. She is absolutely correct about the use of BM and AZ as guinea pigs. How many others?

          I haven’t brought myself to read the NYT article yet. I suppose I’ll have to. Between the U.S. MSM and the brain-dead and morally obtuse Congress, not to mention the “eyes on the prize” Rahmites at the WH (which include BO), exposure to the mainstream narratives of the anointed ones can bring about a chronic state of nausea.

  18. prostratedragon says:

    Scott Horton, by way of Joe Conason, has rendered the service of reminding us how bizarrely bad Mel Sembler is.

    If you don’t know, so bad that when I first ran into these cases after the Niger forgeries came out, I thought I was the one who might be going nuts. And I recovered from that fear (it didn’t take long) more or less expecting that torture stories would be coming out soon.

    • fatster says:

      Your link didn’t go where I thought it was gonna take me. I made a link somewhere around here to the Conason story in salon.com today or yesterday. Let me see if I can find it again. Here it is. Is this the one you intended? If not, please provide the correct link. Many thanks.

  19. Mary says:

    @ 54 – I don’t know what you mean.

    I seem to recall Obama was, months and months too late, all over [/snark] the Dostum/CIA linked container killings. Followed by the sounds of silence thereafter, up to and including Kharzi bringing Dostum back from exile to be chief of staff of the Afghan army


    Nothing gets by that Obama.

    Except the stuff he chooses to let go.

  20. bobschacht says:

    I’ve been away all afternoon, and have just been catching up.

    First, my thanks to EW and all the commenters for an excellent thread.

    Second, for those who think the MSM should be sitting up and taking notice, please “Spotlight” this post to 10 of your favorite reporters. I’m about to.

    Bob in AZ

    • bobschacht says:

      Spotlighted! I added this comment to 9 Journalists:

      One might think that evidence of war crimes would be front page news. So far, however, if evidence of such crimes is discussed at all in the main stream media, it gets relegated to the back pages. President Obama has proclaimed that he wants to look forward, rather than backwards, but justice normally has a backwards glance. Now, action in British courts might force a look at the torture practices of officials early in the Bush administration, before the legal justification for such policies was written by the obliging Bush OLC shop (Yoo, Bybee) to provide legal cover for their war crimes. These incidents prove that war crimes were being committed even before legal cover was invented.

      Marcy Wheeler (aka “Emptywheel”) has been one of the few journalists investigating these issues, and her research, and legal commenters, has been superb. The information she has assembled in this article, and in the comments following it, once again take us into territory seldom seen in the mainstream media, where the US Constitution and our international agreements have often been torn and battered.

      Please help expose this information so that the public is more aware of what has been done in its name. Our founding fathers counted on a vibrant press as the “Fourth Estate.” I don’t care if Rahm Emanuel thinks defending the Constitution is a “distraction.” It is a badly needed antidote to executive over-reach.

      Bob in AZ

      • bobschacht says:

        Continuing @61, my Spotlight emails were sent to:
        John Wilke : Justice Pod Leader : Wall Street Journal
        Dan Eggen : National Staff Writer – Justice Department : Washington Post
        Tina Rosenberg : Human Rights, Foreign Policy Columnist : New York Times
        Eric Lichtblau : Justice Department Correspondent : New York Times
        Toni Locy : Justice Reporter : USA Today
        Henry Weinstein : Legal Affairs Writer : Los Angeles Times
        Maura Dolan : Legal Affairs Writer : Los Angeles Times
        Jane Mayer : Washington Correspondent : New Yorker
        Curt Anderson : Justice Correspondent : Associated Press

        I hope some of them will pick it up…

        Bob in AZ

  21. orionATL says:

    just to connect apparently disparet but related matters:

    the procedure by which various british politicians and former politicians were able to convince a magistrate to tone down a critical

    critical report

    has a name in the u. s.

    know what that name is?

    it’s “lobbying” –


    folks who have been, or still are, on the inside of government

    use their acquired imterpersonal familiarity to plan an assault on the resolve (and on the personal weaknesses) of that magistrate/insider who society has empowered to do what could prove to

    damaging to the interests of the lobbyists’ patron(s).

    thus ensues the lobbyists’ assault involving a pushing, tugging, pleading, threatening fussilade
    until the “keeper of the report” relents.

  22. Mary says:

    I’m thinking that the control principle Miliband crowed over isn’t, when you look at the combined lower court and appellate court descriptions, as crowable as he might wish.

    In this jurisdiction the control principle is not a principle of law: it is an apt and no doubt convenient description of the understanding on which intelligence is shared confidentially between the USA services and those in this country, and indeed between both countries and any other allies. If for any reason the court is required to address the question whether the control principle, as understood by the intelligence services, should be disapplied, the decision depends on well understood PII principles. As the executive, not the judiciary, is responsible for national security and public protection and safety from terrorist activity, the judiciary defers to it on these issues, unless it is acting unlawfully, or in the context of litigation, the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently that is not a decision to be taken lightly.

    the Foreign Secretary’s assertion in the meeting with Secretary of State Clinton on 12 May that “the British Government would continue to make the case that it continued to be an inviolable principle of intelligence co-operation that we did not give away other people’s secrets”. An “inviolable” principle does not appear to acknowledge or permit of any exceptions. Expressed in this way the control principle assumes a level of primacy which diminishes the responsibility of the court as the ultimate decision maker virtually to extinction.


    It is nevertheless accepted by and on behalf of the Foreign Secretary in this litigation that in our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is indeed subject to the clear limitation that the government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so. The acknowledgement that the control principle is qualified in this way is plainly correct, and it appears to be accepted that the same limitation on the control principle would apply in the USA

    Add in the lower court discussions of criminal and civil trials (as opposed to the interests before the courts in this particular proceedings, which are more public rights to know the info) and no wonder Miliband is looking nervous these days.

    • skdadl says:

      Well, isn’t that a pretty document @ 65. I’d given up looking too, thinking they might be holding it back until the Friday conversation about the interesting suppressed paragraph. Ta very much.

  23. Mary says:

    One interesting thing,if much ever comes out, will be to what extent Britain had its own intel, separate from what the US “shared” and to what extent it was revelatory of torture or encouraging of BM’s torture.

    There is the MI5 agent who went to Karachi with questions.

    There is also the “Muslim 007“who was sent to Morocco while BM was there and may have played a role in BM being sent to Morocco at all. Supposedly 007 (Informant A) is a UK citizen of Moroccan descent who “fought alongside bin laden in Tora Bora” and who BM knew in London from before 9/11. Also supposedly 007 went to Morocco but didn’t encourage BM to talk to the Americans – but rather to the Brits, promising that if BM agreed to provide intel to the Brits 007 could get him out of Morocco.

    That’s still some unexplored territory and what kind of access BM should have to either Informant A or his info isn’t fully sketched out yet, but might change some parameters.

  24. powwow says:

    You’re welcome, skdadl, and thanks in return to you and Mary.

    You’re right about many more background documents existing, and, yes, their release does seem to be under dispute, per this from Clive Stafford Smith yesterday:

    The seven paragraphs should rate little more than a footnote in the full story, yet that is a tale that remains untold. The court tells us that a “vast body” of government reports about Mohamed’s abuse remain secret. I was in Washington last week reviewing a similarly “vast body” of evidence indicating British complicity in the abuse of another Guantánamo prisoner, Shaker Aamer. Not a word of that has been revealed, again on grounds of national security.

    And yes, Mary, Judge Kessler’s decision was issued on 11/19/2009 in the case of Algerian Farhi Saeed Bin Moahemmed [Case # 05-cv-01247], whose release from Guantanamo she ordered. So a “December” opinion from her in that case must’ve been the later, quietly-released, declassified version of her opinion, which ended up playing a key role in the release of the seven paragraphs.

    Simon Jenkins in the U.K. is valiantly trying to awaken the moral conscience of his nation and its government, in today’s column in the Guardian:

    On Wednesday, Miliband was forced to hire the maestro of Whitehall autocracy, Jonathan Sumption QC, to demand that the Master of the Rolls censor his damning judgment of Miliband to avoid giving further pain to ministers. We must assume that Miliband did not trust his own lawyers to do this dirty work. All this is because Britain believes that publishing details of what interrogators did to its residents would lead Washington to retaliate by not warning of an impending terror attack on London. The belief is absurd.


    To call such crimes acts of war gives them rhetorical force, but in no sense did al-Qaida or its imitators threaten the integrity or security of a western state. These countries are too strong for such threat to be meaningful. The only damage they can do beyond sudden carnage is self-inflicted, by governments that decide to react with exaggerated fear. Yet the pretence of “going to war” has unleashed two of the most destructive, costly and prolonged state-on-state aggressions in half a century.

    What is extraordinary is the reluctance of British politics to bring a sense of proportion to the terrorist threat. Every agency of democracy, from parliament to the army, the police and the media, is directed at exaggerating the status and menace of al-Qaida – and thus at doing Osama bin Laden’s work for him.


    Yet such was the deceit of these wars, such has been the ­slaughter, the atrocity against civilians, the torture of prisoners, the abuse of human rights – and so few the resignations – that Arendt’s banality of evil seems everywhere.


    Bush and Blair were brazenly unconcerned with international law. We now have it confirmed that they do not care for the Geneva conventions. Such hard-won restraints on the practice of war, such as not bombing civilian targets, not assassinating leaders, respecting cultural sites, treating prisoners humanely, and sustaining the rule of law back home, have been casually set aside.


    Ask the purpose of this fight and the answer makes no sense. The means of war may have advanced since the days of Athenian democracy, but the ends not at all.

  25. alinaustex says:

    So would the Durham investigation /grand jury be following any of the goings on in the UK that ought to have relevance to its inquiry ?

  26. bobschacht says:

    I especially like these selected quotes:

    What is extraordinary is the reluctance of British politics to bring a sense of proportion to the terrorist threat. Every agency of democracy, from parliament to the army, the police and the media, is directed at exaggerating the status and menace of al-Qaida – and thus at doing Osama bin Laden’s work for him.


    Yet such was the deceit of these wars, such has been the ­slaughter, the atrocity against civilians, the torture of prisoners, the abuse of human rights – and so few the resignations – that Arendt’s banality of evil seems everywhere.


    Bush and Blair were brazenly unconcerned with international law. We now have it confirmed that they do not care for the Geneva conventions. Such hard-won restraints on the practice of war, such as not bombing civilian targets, not assassinating leaders, respecting cultural sites, treating prisoners humanely, and sustaining the rule of law back home, have been casually set aside.

    Bob in AZ

  27. robspierre says:

    I don’t see how this aspect of the timing matters as far as fundamenttals go. It shows that the torturers have been lying. But so what?

    The fact is that torture is flat out illegal, no matter what the twisted, consigliere-style arguments of the Bybees appear to say. Torture violates statutes. It violates the Constitution. It violates international treaties that have the force of US law. It violates the established law of nations that defines war crimes and crimes against humanity. You can’t get much more obviously illegal.

    All that stands between the torturers and punishment is systematic delaying tactics–endless circumlocutions, arguments over definitions, discussions of the finer points of “authorizations” that are ultimately irrelevant. We need to simply shout for justice whenever this or that memo is waved in our faces.