Torturing Binyam Mohamed–Before Bybee Two

A few of you have alerted me to this judgment from the Binyam Mohamed case in the UK. As a reminder, Mohamed has been trying to force the British government to release information about torture he suffered at the hands of Americans and Pakistanis. But the British government refuses to allow the information to be revealed publicly because–they say–it’ll threaten the relationship (and intelligence sharing) between the UK and US. Here Andy Worthington’s post on this ruling, and here’s Clive Stafford Smith’s.

The ruling suggests that Americans were using torture techniques on Binyam Mohamed in April and May 2002, before use of those techniques was given (dubious) legal sanction with the Bybee Two memo on August 1, 2002.

The ruling is sort of like a Russian egg, arguing that passages from one ruling explaining why passages from an earlier ruling should not be redacted themselves should not be redacted. It is basically an argument in favor of making four passages from an October judgment (these are four passages from ruling five–I’ll call them 4/5) publicly available. The Foreign Secretary David Miliband doesn’t want those passages to become available because doing so would reveal what was redacted from an earlier judgment (these are seven passages from ruling one–I’ll call them 7/1).

[The Foreign Secretary argues that] the four passages in the fifth judgment [4/5] indicate what is in the seven paragraphs redacted from the first judgment [7/1].

But the High Court argues that even if 7/1 should not be released (they don’t buy this, but use the assumption to make their argument), there is no reason 4/5 cannot be.

Now, the High Court appears to be using the Bybee Two memo (the one laying out the 10 techniques approved for use with Abu Zubaydah) as its basis for arguing that 4/5 can be released. They note that “the entire content” of 4/5 is in the public domain. The have already unredacted a passage in this ruling reading,

One of those memoranda dated 1 August 2002 [from Jay Bybee to John Rizzo] made clear that the techniques described were those employed against Mr. Zubdaydah.

And they note that one of the paragraphs redacted in 4/5 “is a verbatim quotation from the memoranda made public on 16 April 2009.” From this, we can assume that the content of that passage is an exact quotation from the Bybee Two memo.

Two more of the 4/5 redactions describe how the 7/1 redactions relate to–presumably–the Bybee Two memo.

paragraph 74(ii): The redacted subparagraph explains that what is in the redacted paragraphs is akin to what is already public.

paragraph 81: The redacted passage explains (1) the relationship of what has been placed into the public domain to what is in the redacted paragraphs, (2) why, in light of that relationship it is impossible to believe that President Obama would take action against the United Kingdom and (3) why publication of the redacted paragraphs is necessary to uphold the rule of law and democratic accountability.

So, to summarize, the High Court is almost certainly arguing:

  1. Obama put Bybee Two into the public domain, making the description of those techniques public
  2. The 4/5 redactions basically use a verbatim quote from the Bybee Two memo to show that such description is in the public domain
  3. The rest of the 4/5 redactions describe that one or some of the techniques described in Bybee Two were used on Mohamed
  4. Because Obama released Bybee Two, he can’t complain about releasing details about techniques in there beying used on Mohamed

But here’s the rub, the last assertion the High Court makes that probably is not so self-evident, when they claim, “it is impossible to believe that President Obama would take action against the United Kingdom and … why publication of the redacted paragraphs [7/1] is necessary to uphold the rule of law.

One basis for their claim that Obama would not take action against the UK is because, by publishing 7/1, the UK would not be publishing anything about a third country–in this case, Pakistan, where Mohamed was held. The ruling makes it clear that everything in the redacted paragraphs refers to what Americans did to Mohamed. Effectively, the 7/1 redaction includes citations of intelligence reports shared between the UK and US, and the passages just describe what the US said the US did.

But then there’s the other critical detail.

Those seven paragraphs [7/1] include a short summary of reports of the treatment accorded to BM by officials of the United States Government during his unlawful and incommunicado detention in Pakistan in April and May 2002.

[snip]

The seven paragraphs [7/1] simply contain a short summary of the treatment of BM in April and May 2002 and our conclusion on its characterisation.

That is, the High Court is saying that Mohamed was subjected to the techniques approved in August 2002 relying on certain assumptions–notably, that Abu Zubaydah was a top al Qaeda figure with information on future attacks that could only be collected using such methods. Not only weren’t those techniques approved in April and May, when they were used on Mohamed (they were probably used on Abu Zubaydah at the same time, but that’s another matter). But the US government has now all-but admitted that Mohamed has no ties to al Qaeda and no information about further attacks. Therefore, even buying John Yoo’s twisted reasoning, the required preconditions for using torture did not exist for Mohamed, yet Americans used those techniques anyway.

Now, the High Court might well be arguing that all of this treatment is illegal in any case (and note, they mention both torture and cruel and inhuman treatment). But they might also be arguing that Mohamed’s treatment according to the US’ own description of what they did to him did not meet the terms laid out in Bybee Two. Obama and Holder said repeatedly that those who treated someone in terms outside of the terms laid out in Bybee Two would be eligible for prosecution, which may be one reason the High Court claims that Obama couldn’t complain about making these passages available.

Of course, it’s not clear whether Obama and Holder still stand by those statements. And it’s certainly clear that Obama would prefer keeping proof secret that–even according to internal intelligence–it knows Mohamed’s interrogators broke the law.

But heck–if arguing the contrary will get this stuff in the public record, all the better.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

9 replies
  1. bobschacht says:

    I keep hoping for a case that will bust open the wall of secrecy, and lay the whole edifice of war crimes so clear that it will be impossible for Holder and Obama to ignore. Maybe this will be it. I audaciously hope so!

    Thanks for your report on this!
    Bob in AZ

  2. scribe says:

    I viewed the paragraph

    paragraph 81: The redacted passage explains (1) the relationship of what has been placed into the public domain to what is in the redacted paragraphs, (2) why, in light of that relationship it is impossible to believe that President Obama would take action against the United Kingdom and (3) why publication of the redacted paragraphs is necessary to uphold the rule of law and democratic accountability

    as a statement by the Brit court almost daring Obama to go over to the dark side. Remember that the prior opinion in this case (the really long one from last spring whence that paragraph came) stated in another part, in no uncertain terms, that both torture and covering it up were both beyond the bounds of civilized behavior and wholly inconsistent with democracy.

    Not that showing themselves to be such is anything the likes of Rahm and Obama would worry about.

    I wonder whether the Nobel Committee can revoke its prizes. That would be an interesting discussion.

  3. earlofhuntingdon says:

    Those seven paragraphs [7/1] include a short summary of reports of the treatment accorded to BM by officials of the United States Government during his unlawful and incommunicado detention in Pakistan in April and May 2002.

    There are prisoners. (“Detainee” is intentionally antiseptic, but everyone knows what a prisoner is.) There are abstract legal memoranda, lawyers’ arguments about what the law means. (Some hew closely to established claims, some make shit up.) There’s the law itself, independent of those memoranda. And finally, there are judges rulings, which say what the law is, or opinions, which comment on what it should be. Bush moved heaven and earth to keep those four things as far away from each other as possible. Obama is now pushing that rock up the same hill.

    A UK High Court ruling hasn’t the force of law here, but it would be persuasive reasoning about what it should be, coming as it does from another, “senior” common law jurisdiction and close associate of the US in the GWOT.

    An aside by a UK High Court, holding that “of course” US government conduct toward a specific, live, named individual was illegal, would be staggering. (Hell, that sort of aside by a court reporter more than a hundred years ago created legal “personality” for railroad corporations and their progeny. Look how much trouble that’s caused.) The same statement in a ruling more central to judgment would carry more weight. The Pandora’s box of legal trouble that Ashcroft, Gonzales, Mukasey and Holder have been sitting on would suddenly pop open. Who knows what else might creep out?

    The corporatist Mr. Obama would go to the legal mat to prevent it. But I agree with the High Court judges. I don’t think Obama would threaten US security by withholding cooperation with the UK. The two countries are intertwined in terms of people, financial services and travel. Obama would damage US security as much as the UK’s.

    Such US action would be deemed punitive, too, by the UK’s EU partners and, presumably, by other NATO countries, whose help Mr. Obama would very much like to have as he contemplates putting tens of thousands of more US personnel at risk in Afghanistan, a country that has been a king cobra in the nursery of empire for nearly three thousand years. But Obama will respond with more than a Victorian, “We are not amused.”

  4. Jeff Kaye says:

    I was one of those nudging you (strongly) to take a look at this issue, and I’m so glad you did. You are able to look at the details with an eagle eye.

    What I found in this story concerned more the big picture, that is, the narrative that surrounds the torture program and its origins. The latter has focused for some time now on the migration of SERE techniques from the SERE program to CIA and DoD, starting first with the transfer of James Mitchell, and later Bruce Jessen to the Thailand interrogation site where Abu Zubaydah was being interrogated. Hence, examination of the narrative has focused upon the torture of Zubaydah, the usurpation of the FBI interrogators on the scene, on the cables back and forth from the field to HQ, or even the White House, and the build up to the Bybee Aug. 2002 memos.

    But where is any similar examination of the U.S. interrogation of Binyam Mohamed in Pakistan? Until now, there has been no indication at all that the “enhanced interrogation” style of torture was inflicted upon Binyam in April/May 2002. Who was in charge of that? Were Mitchell/Jessen similarly involved? Were there cables as from Thailand? Binyam was being set up as the other “dirty bomber” conspirator with Jose Padilla. What was the role of the fake “dirty bomber” story? Who fabricated it? Is it not, like the anthrax story you so ably discussed yesterday, another example of a faked attack, meant to create hysteria in the U.S., to whip up the population for war and a reduction of civil rights at home?

    The April/May 2002 torture of Binyam Mohamed in the same fashion torture was used upon Zubaydah (who felt he was being used as a guinea pig) changes the torture narrative and specifically the question of its origin and propagation in subtle or important ways. If nothing else, it indicates that the use of these “enhanced techniques” — really, an experiment regarding a specific programmatic use of torture techniques — was put into place in multiple settings by at least Spring 2002. It seems likely that we have not heard the last of these new revelations, and it points to the wide swath of our ignorance about what really happened in the U.S. government after 9/11.

    Did you know that pictures of Zubaydah’s interrogation were shown to prisoners being interrogated at Guantanamo, and this before any news around this interrogation was actually known? I’ll be writing this up.

    • Jeff Kaye says:

      I also liked this quote from the latest filing:

      Of itself, the treatment to which BM was subjected could never be properly described in a democracy as “a secret” or an “intelligence secret” or “a summary of classified intelligence.”

      And furthermore…

      … publication of the redacted paragraphs is necessary to uphold the rule of law and democratic accountability.

      I’d add, it’s necessary so that we know more about how the torture program proceeded, it’s articulation with British secret services, among other things.

      • skdadl says:

        Of itself, the treatment to which BM was subjected could never be properly described in a democracy as “a secret” or an “intelligence secret” or “a summary of classified intelligence.”

        Yes, 13.ii.c, which Jeff is quoting there, is quite the challenge to Miliband and Obama/Holder (and gee, I hope to some of our forked-tonguers here as well), as is the section scribe quotes. They don’t come right out and ask wth our governments and intel agencies have been doing with their classification powers, but it would be nice if some of our media would take the hint and run with it.

        I also agree with this conclusion, EW:

        But they might also be arguing that Mohamed’s treatment according to the US’ own description of what they did to him did not meet the terms laid out in Bybee Two. Obama and Holder said repeatedly that those who treated someone in terms outside of the terms laid out in Bybee Two would be eligible for prosecution, which may be one reason the High Court claims that Obama couldn’t complain about making these passages available.

        There’s one for Holder to sweat over. Miliband can’t exactly go back to the courts and say, “Well, you see, if we publish the redactions, we would be forcing the government of another country to keep its word, and that’s not a very friendly thing for one country to do to another, particularly when it appears that they don’t actually want to, which is why President Obama really would be cross with us.”

  5. alinaustex says:

    alinaustex
    Is it possible/probable that Team B took control entirely of both the DOD and the CIA torture programs ? When you look at how quickly the SERE techniques migrates across different jurisdictions -I wonder if somehow Cheney and Rumsfeld were not actively co-ordinating the torture programs in both the CIA and DOD . Is this why various media that relates to illegal
    torture keeps being redacted , destroyed or going missing ? If Team B (ie the neocons )in the gwb43 did this across different agencies would not this be an ongoing criminal conspiracy ?
    Perris often refers to Team B – and ceratinly we know that Cheney and Rumsfeld have a shared history and agenda -IMO its just one set of puppetmasters leading our plunge into the darkside based on “our known knowns – “

  6. Mary says:

    Even his handoff to Morocco for mobetta torture took place in July, 2002.

    On this, though, “But the US government has now all-but admitted that Mohamed has no ties to al Qaeda and no information about further attacks” do you mean now, or that they are admitting that he had no ties and no information when they kidnapped him in Pakistan? Bc I’m not sure they have all but admitted that – I think they are still beating the drum on his ties to Padilla and plots and will, for so long as those claims don’t have to be presented in a court, where masked CIA agents can explain how visiting spoofs on the internet constitutes a clear and present danger justifying kidnap and genital slicing.

    I’d still like to see the OLC justifications, too, for things like the shipment of al-Libi to Egypt and Mohammed to Morocco etc. I noticed that Pepsico’s CEO – still happily employing Arar conspiracist Thompson as Gen Counsel – was one of the Obama’s guests. The webs are woven pretty damn tight – when all the “best and brightest” have no higher or better use for themselves and this country than what we’ve seen, there’s not much to be hopeful about.

    • knowbuddhau says:

      Oh sure there is! I’m hoping that this effort were making right here and now will change the game in favor of genuine democracy. I ‘m hoping to figure out exactly how Joseph Campbell’s decades of lectures, on the power of myth, at State’s Foreign Service Institute, have been adopted and adapted by the Pentagon and others, to jack us to hell and back with the power of our own dreams, terrors, and aspirations.

      And who says the wankers who claw their way into positions of influence actually are our “best and brightest”? If we keep seeing the so-called B&B fail so spectacularly, why accord them that honorific?

      We, too, are among the B&B. Your writing, and the exhilarating comments of others, fills me with hope. I get up every morning hoping to see an article or watch a video that busts the malignant myths of the War Party for good. And not finding them, I’m hoping to write something that will have that effect for others.

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