Brit High Court Slaps Down US And British Torture Coverup
In a stunning and refreshing decision, the British High Court has overruled the British government’s attempt to suppress torture evidence on the US and British treatment of Binyam Mohamed. From The Guardian:
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.” (emphasis added)
That, ladies and gentlemen, is how it is done. Make no mistake, this is as big of a slap at the United States government as it is the British and Milibrand. The pure fiction that the security relationship between the two countries rested in the lurch has never been anything short of a craven coverup of unconscionable and criminal conduct.
The Brit High Court was not done though:
“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.
Production of the evidence will be stayed pending a right to seek appeal, but this is an outstanding decision and opinion. A nice and uplifting piece of news to round out the week.
UPDATE: Per MadDog, here is the AP Report on the High Court’s decision, and a tasty quote:
“It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ’secret’ or as ‘intelligence’…”
As opposed to, say
http://rawstory.com/news/afp/US_judge_upholds_censoring_CIA_pris_10162009.html
Do we have any Emptywheel denizens who are Brits or ex-pat Brits (do Canadians count? :-) ) who could give us a sense of Britain’s Supreme Court (formerly the Law Lords)?
Is Britain’s Supreme Court stocked to overflowing like ours with conservative, anti-public, corporate shysters?
The British Supreme Court is brand-new, as in The Queen opened it this week and Justice Ginsburg (and 3 other justices) was enroute to the ceremony when Ginsburg took ill on the plane the other day.
No way of knowing what their justices are going to be like, nor are there any ways of knowing what their procedures will be, etc.
I’ll see what my peeps have to say on the matter … they’re all off and celebrating our Festival of Lights, so it might be a while. What I heard from them previously was, most Judges from across the political spectrum were disgusted with the disrespect that Blair’s Gov’t has shown to British Law and ached for the time to stick their Gavels up his ***
I have every reason to think the Supremes are of the same belief. They are going to lower the boom, like the Canadian Court has done, even with many “Conservative” appointments.
I’ve been thinking something similar. Isn’t Scalia supposed to be an Originialist? And weren’t all those Originalists in open revolt against a Sovereign who had abused his executive powers?
Bob in AZ
Just to be clear, when I said “Supremes” @ 14, I was referring to the British Supreme Court.
The two High Court judges first tried slapping the government’s hands over those redacted passages in February (in a case that had been going on since the previous August, I think). They made it clear then that they did not believe that what they’d read could properly be called sensitive intelligence, as Miliband had claimed. They also spoke fully and frankly, as I think we say, of what had been done to Mohamed.
At that point, though, Miliband got “the Obama administration” (I’m presuming that would be Clinton — he wouldn’t identify a specific source) to write him a letter warning of damage to international relations, and I believe that the CIA have since sent a similar letter.
So the judges took all that into consideration for a while, but you could sort of tell that they were going to stand their ground, and they have. I’ve been hoping for a while that this case will break things open for many of the rest of us.
I hope this leads to furthering Lawsuits against Blair & Co. for subverting British Law, and that he faces some backlash for his actions. There are many Legal & non-Legal Experts in England who are in favor of this.
I’m thinking that those redactions could have reverberations even farther afield, Petro. It could be very useful, eg, the next time our Commons committee has Mr O’Brian (legal spokesperson) from CSIS in for a chat, for a member to read back at him whatever those seven paragraphs admit to, and then grill him on the exact nature of our co-operation with the CIA.
Someone from CSIS admitted to Justice Iacobucci last year (in camera inquiry hearings) that they commonly described Canadian individuals so as to “prompt a response” from a foreign agency that would confirm or deny that characterization. Or in plain English, they were affirming the guilt of some suspects to the CIA when they had no grounds to do that, just to see how the CIA would respond. Iacobucci called this a risk; I would call it a lot of other things, some of them very rude.
We know a lot about how the CIA “responded” to all kinds of trash information, but it would help to have it in their own words. Who’s doing the damage to international relations here after all? Or maybe, who gets to decide which international relations we care about? Those are questions for our guys as much as the Brits or the Americans.
The High Court has been looking at a lot of other documents, btw, in related cases. The Guardian has a good graphic on cases of MI5/6 complicity in torture cases here.
The pattern among all our governments — it’s kind of hard to ignore.
Jeebus, is that why Napolitano was going on about all the Terrists on Canadian soil ?
What a tangled web we weave …
I’ve queried this before. Can we look forward to obstruction of justice charges when this can of worms finally opens up?
“in any democratic society governed by the rule of law”
This says it all.
Do you think we’re governed by the rule of law,or if we even care,at this point,what the Brits or the rest of the world thinks about our legal system?
Italy’s legal system is a joke and Spain’s has been marginalized to a point of insignificance.
Can anybody show me an example of any country that has a legal system that has any merit anymore?
If enough facts were put together to warrent a tial where would it be held and what would happen if there were convictions?
David Miliband is David Miliband, not David Milbrand. Speaking of whom… did anyone else see In The Loop? I think the Tom Hollander’s Secretary of State is based on Miliband.
Miliband immediately said he would appeal, but methinks neither the Court of Appeals not the Law Lords (now, the Supreme Court) will take his side. It may buy time for him to get another juicy quote out of Mrs. Clinton, as their apparently will be no production or disclosure until all appeals are complete.
Apart from the decision itself, it’s refreshing to see a court obtain access to purported government secrets, laugh at the claim, then cite the law and policy interests that compel disclosure. Apart from a few judges in the 9th Circuit (admittedly, we have different laws and thanks to Bush and his Senate, a newly reinvigorated, conservative S.Ct.), it’s a resource we seem to have in woefully short supply.
damn,
what i would give to see an american court rule so directly.
it drives me crazy to read the cautious, careful (fearful of reversal if more direct, is assume) efforts of such judges as vaughn and white regarding repeated BLATANT sophistry and deception by doj lawyers.
i accept these are two fine judges, but neither one of them seems to feel comfortable just cutting loose and directly criticizing and ruling on what they know to be government deception.
that, i assume, is the burden this society bears for having five sitting mitered, republican authoritarians;
the lot of them constituting a potential majority for any appealed decision on bill of rights/national security cases.
and is it not interesting that so many “national security” cases involve denial of bill of rights freedoms?
Maybe, but I think if you look carefully and pick out selected quotes from the opinions, at least some of them, by Walker and White they are that strong.
“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.
Refreshing to hear that there are some with power who actually believe in the rule of law.
Bravo to the British court, and a big boo to the U.S. court, per Arbusto @1. Thanks for covering this, bmaz.
I came here lookin to talk a little trash about football.
instead I got America’s Jurisprudence community trying to explain how the smackdown America’s legal system just received aint really a smackdown
Face up to it, Perry mason et al got his ass beat, by a bunch of Brits, no less
at least it wasn’t the french
if ya wrote faster on that trash talk I know yer workin on, this dint have to happen …
(wink)
This is obviously very EPU- but what I know of the British Privy Council is that they tend to be fair-minded. Former English colonies in the Caribbean who have used the Privy Council as the court of last resort are now trying to evade review there because they have limited use of the death penalty.
And in case folks missed it, Glenn Greenwald has an excellent post this day on the same subject of this post:
British High Court rejects U.S./British cover-up of torture evidence
Via the BBC, Glenn also posted the British High Court’s ruling (38 page PDF), so do take a gander at both.
File Under “it will never happen” but wouldn’t it be nice to see Obama and/or Gibbs questioned with
“As President Obama has stated on many occassions, the United States does not Torture and the United States has the highest respect for human rights – denouncing and, where applicable prosecuting, violations. An example would be the Chicago torture cases where convictions are being overturned and possible prosecution of those who may have been involved in torture is currently under review. Given that, would President Obama like to weigh in with any form of congratulations to, or support of, the recent High Court ruling in Britain where the British court is refusing to allow evidence of torture to be covered up under a states secret privilege?”
bmaz @12
actually i agree with you completely, when comparing judges.
but i was speaking about the entire american federal judiciary. i would expect that they would have been all over a number of bush and obama “security” initiatives.
i would have expected fisa “improvement” and computer-based spying on american citizens to be declared unconstitutional; it wasn’t.
i would have expected the “state secrets” to have been knocked into cocked hat early and often at every level of the judiciary; it wasn’t.
i would have expected the treatment of american citizen jose padilla to have been excoriated by every level of the court: it was not.
i would have expected the doj/fbi national security letters initiative to have been banned: it was not.
i would have expected torture to have been prevented forth with: it was not.
so, from a “long” perspective the american federal judiciary has not handled the growing state authoritarianism/presidential usurpation of powers as i would have expected american courts to so do.
the federal judiciary court has certainly placed some restrictions of excesses of government authoritarianism, but, in my view, it has been very cautious in its approach to doing so, excessively patient with presidential legal sophistry, an inappropriately limited in what it was willing to curtail.
so where can we turn now for righting this out-of-control reinforcing loop that is our rapidly growing statism?
Almost no doubt Obama will never have to answer to or address these issues personally during any interview in the future or at any press conference, nada, zip.