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.

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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’…”

Obama DOJ Asks Full Panel to Review Jeppesen

When the al-Haramain hearing last week turned to questions of next steps, DOJ’s Anthony Coppolino played for time.

 THE COURT: All right. What I would suggest is a — and I’m going to ask the clerk to backstop me here. We have a special setting for hearing this motion — we  could hear it on the — How’s the 5th of August?

(Attorney Coppolino shaking his head.)

THE COURT: Mr. Coppolino says no.

MR. COPPOLINO: Well, really, the first two weeks of August are quite bad for me. I was going to suggest, perhaps, the first Thursday that I could do; it would be the 20th.

THE COURT: Doesn’t have to be on a Thursday unless we have to work around a trial.

MR. COPPOLINO: Okay. My preference would be the 28th or 21st. Looks like you are not available the following week, at least according to that calendar (pointing), at least.

THE CLERK: That’s correct.

MR. COPPOLINO: So I would ask the Court, if it’s possible, and depending on Mr. Eisenberg’s schedule, no sooner than, say, the 21st or then after Labor Day.

MR. EISENBERG: Your Honor, I’m going to be mired in work throughout July and August; it doesn’t matter to me what date you choose. It’s going to be a tough summer; I’m prepared to deal with that.

THE COURT: All right.

MR. COPPOLINO: Plus, you need to build in time for his reply because if he files on the 30th, I would need July because we have the Jewel hearing on the 15th. So I think I need at least the end of July — he gets to reply, if it’s his motion, so I think, unfortunately, if it’s okay, we are into September.

THE COURT: What does September 2 look like?

I suspect that when Coppolino pushed al-Haramain out into September, he knew this was coming (from an ACLU press release).

The Justice Department today argued that the victims of the "extraordinary rendition" program should not have their day in court, asking a federal appeals court to block a landmark case the court had earlier ruled could go forward. In April, the Ninth Circuit Court of Appeals ruled that an American Civil Liberties Union lawsuit against Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful "extraordinary rendition" program could proceed, but today the government asked the appeals court’s full panel of judges to rehear that decision.

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Kirk Lippold, Gitmo Architect, Still Making Torture Cool

I previously wrote about Kirk Lippold earlier this month, when the Obama Administration dropped charges against Rahim al-Nashiri, the alleged mastermind of the Cole bombing. Just as a Bush Dead-Ender judge was forcing Obama’s hand by refusing to put off al-Nashiri’s trial, Lippold, former Commander of the USS Cole, hit the airwaves, bitching about how Obama was holding up justice for the families of the Cole victims.

Somehow, the news sources quoting Lippold never asked why (with one exception) he hadn’t been bitching for the previous eight years, when Bush and Clinton failed to prosecute any of the Cole bombers.

Nor did the news sources quoting Lippold reveal something just as pertinent to his complaints that Obama was letting a Gitmo detainee free as his role as Cole Commander: Lippold was himself one of the architects of Gitmo policy.

With yesterday’s release of Binyam Mohamed, Lippold is back, attacking Obama for making the country less safe.

This unprecedented release of an enemy combatant, who has already targeted the United States, clearly shows that despite the promises that President Obama made to keep this country safe, he may be putting political promises ahead of our national security. The laundry list of charges against Binyam Mohamed, many of which he has admitted to, makes it blatantly clear that it is not if he will attack the United States, but only when his attack will happen.

And, with the help of Military Families United (which seems to have been set up to push Obama to be belligerent as possible and which seems to have been the catalyst behind Lippold’s new chatty ways), Lippold’s attacks are getting play. 

Kudos to Carol Rosenberg, alone among journalists picking up Lippold’s release, for identifying Lippold with his Gitmo role.

A Bush administration era architect of Guantánamo policy resurrected the dirty bomb allegation and accused Obama of "clearly taking actions that may endanger the United States and our national interests.”

Retired Navy Cmdr. Kirk Lippold, whose destroyer the USS Cole was struck by suicide bombers in October 2000, said in a statement issued by the advocacy group Military Families United: "Americans must now be very watchful of every action the Obama administration takes in war on terror.”

The AP, though, makes no mention of Lippold’s role in designing Gitmo.

Some criticized Mohamed’s release, saying Monday that no detainees should have been freed before their status was reviewed under an executive order Obama issued last month.

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