Andy Worthington | ukwatch.net

Guilt By Torture: Binyam Mohamed’s Quest for Justice

Tim Holmes — Mon, 10 Nov 2008 08:55:43 +0000

The case of Binyam Mohamed just gets weirder and weirder. For the last six months, the British resident and Guantánamo prisoner, who was seized in Pakistan in April 2002, has been engaged in a transatlantic struggle to secure evidence relating to his “extraordinary rendition” and torture, by or on behalf of the CIA, which involved his disappearance from July 2002 until his arrival at the US prison at Bagram airbase in Afghanistan in May 2004. Since September 2004, Mohamed has been held at Guantánamo, and in conversation with his lawyers has explained that he was sent to Morocco, where he was tortured for 18 months, and then spent another four months in the CIA’s “Dark Prison” near Kabul.

In June, a judicial review was triggered after the Treasury Solicitors turned down a request from Mohamed’s lawyers to release documents in the British government’s possession regarding his illegal detention in Pakistan and his subsequent disappearance. The lawyers pointed out that Mohamed was about to be put forward for a trial by Military Commission at Guantánamo (the system of “terror trials” conceived by the US administration in November 2001, and derided by Lord Steyn as a “kangaroo court”), and stated that the information was essential to his defence for two reasons: firstly, because the US government had refused to provide any information whatsoever about his whereabouts from July 2002 to May 2004; and secondly, because Mohamed claimed that the charges against him — primarily in connection with an alleged plot to detonate a radioactive “dirty bomb” in a US city — had been extracted, during this period, through the use of torture.

The judicial review took place in July, and Lord Justice Thomas and Mr. Justice Lloyd Jones were clearly appalled by the behavior of the British intelligence services. When they delivered a judgment at the end of August, they criticized the intelligence services for sending agents to interrogate Mohamed in May 2002, while he was being held illegally in Pakistan, and also for providing and receiving intelligence about him from July 2002 until February 2003, when they knew that he was being held incommunicado, and should not have been involved without receiving cast-iron assurances about his welfare. In the judgment, they stated explicitly that, “by seeking to interview BM [Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”

The judges also seized on an admission, made on behalf of the Foreign Secretary, David Miliband, that Mohamed had “established an arguable case” that, until his transfer to Guantánamo, “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States,” and ruled that, because the information obtained from Mohamed was “sought to be used as a confession in a trial where the charges … are very serious and may carry the death penalty,” and that it is “a long-standing principle of the common law that confessions obtained by torture or cruel, inhuman or degrading treatment cannot be used as evidence in any trial,” the British government was required to hand over the evidence — 42 documents in total — to his lawyers.

This was a remarkable result, but celebrations on the part of Mohamed’s lawyers and human rights groups were soon muted when the government responded to the only lifeline extended by the judges — that national security concerns might override the necessity for disclosure — by filing a Public Interest Immunity certificate which stated, in so many words, that the need to preserve the “special relationship” between the American and British intelligence services trumped the right of a man rendered to torture by one country — and with the complicity, to some extent at least, of the other — to have access to evidence that might help in his defence.

While this led to a temporary stalemate in the UK, Mohamed’s case then came up before a District Court judge in the United States, as part of a number of long-delayed habeas corpus claims, based on the 800-year old English law preventing arbitrary imprisonment. These had first been filed after the US Supreme Court granted the prisoners statutory habeas rights in June 2004, but had been blocked after Congress passed new laws in 2005 and 2006, and it was not until June this year, when the Supreme Court ruled again on the prisoners’ rights and granted them constitutional habeas corpus rights, that the cases were allowed to proceed.

As part of Mohamed’s habeas review, the American government was finally required to make the 42 documents provided by the British government available to his lawyers, but when the day of disclosure arrived, the Justice Department released only seven of the 42 documents — apparently so heavily redacted as to be useless — and then dropped the “dirty bomb” plot claim without explanation.

This was announced on October 15, and six days later Mohamed’s proposed trial by Military Commission was also dropped, although for different reasons. His prosecutor, Lt. Col. Darrel Vandeveld, had resigned in September, complaining noisily that he had gone from being a “true believer to someone who felt truly deceived” by the trials, when he discovered that evidence vital to the defence had been deliberately withheld. The Pentagon was clearly terrified that he would make further disturbing revelations in Mohamed’s case, and the cases of four other men whose trials were also abandoned, although, bizarrely, Mohamed’s military lawyer, Col. Yvonne Bradley, was told that the charges would be reinstated within 30 days.

The reverberations from these developments soon spread back across the Atlantic. After another High Court hearing, the British judges delivered a judgment on October 23 in which, while still begrudgingly respecting the government’s security claims in Mohamed’s case, they were more openly critical of the US government’s behavior than they had been in August, when observers were required to read carefully between the lines.

Noting that the court “could see no rational basis for the refusal by the US government to provide the documents” to Mohamed’s lawyers, and adding that, after being given “ample time” to provide them, no explanation had been provided by the US government for its refusal to comply with an agreement reached between the High Court and the US administration, Lord Justice Thomas again refused to order disclosure, observing that “challenges made to the conduct of the United States Government and the legality of its actions should, save in the most exceptional circumstances, be determined by the judiciary of the United States,” and trusting that Judge Emmet Sullivan, the judge in Mohamed’s habeas case, was better placed to make a decision at the next habeas meeting on October 30.

However, he made it clear that, if a satisfactory conclusion was not forthcoming, the High Court would reconvene to order disclosure, and, after noting that the court regarded as significant the submission by Dinah Rose QC, one of Mohamed’s lawyers, that the US government “is deliberately seeking to avoid disclosure of the 42 documents,” he concluded, ominously, by stating, “We must record that we have found the events set out in this judgment deeply disturbing. This matter must be brought to a just conclusion as soon as possible, given the delays and unexplained changes of course which have taken place on the part of the United States Government.”

What was also noticeable, to those who were studying the case closely, was that the judges were barely able to conceal their regard for the significance of the 42 secret documents, which they had been able to scrutinize over the summer during an extraordinarily detailed cross-examination of one of the agents who had visited Mohamed while he was under US supervision in a Pakistani jail in May 2002.

The judges noted that it was the information contained in the 42 documents that persuaded them that disclosure to Mohamed’s lawyers was “essential” if Mohamed was to have his case “fairly considered” by the Susan Crawford, the “Convening Authority” overseeing the Guantánamo trials. They pointed out that they had only been able to make public some of their reasons for making this ruling — with the rest contained in a 33-page closed judgment — but that these at least made clear the “critical point” that the documents provided “the only support independent of BM in some material particulars for his general account of events that led to his confessions.”

Later in the judgment, Lord Justice Thomas and Mr. Justice Lloyd-Jones revealed more about the information contained in the documents, noting that their closed judgment set out the passages that they considered “relevant to the allegation made by BM that his confessions had been the result of conduct that amounts to torture or cruel, inhuman or degrading treatment.” They added that they “came to the view that the documents were relevant to all the charges made” — not just the “dirty bomb” plot, but other “allegations of participating in the war in Afghanistan and associating with al-Qaeda” — and criticized the US government for only revealing seven of the documents in heavily redacted form.

Explaining that they had “considered with the assistance of counsel in closed session whether the decision to provide only seven can be explained on the basis that only seven documents provide exculpatory evidence that supports BM’s account,” they stated that they were “satisfied that that cannot be so,” and, moreover, that “all the documents need to be read in sequence to see the proper context, and they added, “As the United Kingdom Government has made clear since the time the documents were found and sent to the United States Government in June 2008, all are relevant and potentially exculpatory.”

What happened next came as a shock to everyone, but served to emphasize the significance of the allegations that CIA agents had been involved in the torture of Mohamed, and that the British intelligence services were at least partly complicit. On October 30, it was announced that the British Home Secretary Jacqui Smith had officially asked the Attorney General, Baroness Scotland, to investigate possible “criminal wrongdoing” by MI5 and the CIA in Mohamed’s case. The announcement came on the same day that, in another hearing about Mohamed’s habeas review, the Justice Department finally turned over the remaining 35 documents to his lawyers, in a tense session for the US administration in which Judge Sullivan pointedly “asked why, after more than six years, the government had stepped away from its claims about a dirty bomb plot,” and stated, “That raises a question as to whether or not the allegations were ever true.”

Although Andrew Warden, a Justice Department lawyer, responded to a question from Judge Sullivan as to “whether the government stood behind its assertion of a dirty bomb plot,” by stating, “The short answer is yes,” the long answer is that it has been public knowledge since June 2002 that the plot never even existed. Speaking in June 2002, shortly after Mohamed’s alleged co-conspirator Jose Padilla was seized at a US airport, Paul Wolfowitz, the deputy to US defense secretary Donald Rumsfeld, admitted that “there was not an actual plan” to set off a “dirty bomb” in America, that Padilla had not begun trying to acquire materials, and that intelligence officials had stated that his research had not gone beyond surfing the internet.

It took another three and a half years for the allegations to be dropped against Padilla, who was held as an “enemy combatant” on the US mainland, in isolation so severe that it amounted to torture, before being put tried and convicted on lesser — and largely spurious — charges of providing material support for terrorism, but Andrew Warden’s words show that, six and a half years after Wolfowitz’s admission, the Justice Department and the Pentagon are still furiously engaged in a blinkered denial of reality.

In spite of this, however, the crucial evidence establishing that Mohamed was tortured into making false confessions remains hidden to the public, awaiting either a decision by Judge Sullivan to dismiss his case, leading to his release from Guantánamo (as requested by the British government 15 months ago), or a decision by the Defense Department to reinstate his trial by Military Commission.

Unless, that is, the British judges insist that public disclosure is in the interests of justice. On November 5, in what the Daily Telegraph described as a move that is “believed to be legally unprecedented,” Lord Justice Thomas wrote to the Press Association inviting “written submissions from the media” about whether or not the court should make available a “summary of the circumstances of BM’s detention in Pakistan and the treatment accorded to him,” — consisting of “seven very short paragraphs amounting to about 25 lines” — which had been cut from the High Court’s August ruling at the government’s request.

Lord Justice Thomas noted that “the issue is one of considerable importance in the context of open justice,” referred to the Home Secretary’s decision to ask the Attorney General, Baroness Scotland, to investigate possible “criminal wrongdoing” by MI5 and the CIA in Mohamed’s case, and also drew on advice provided by two Special Advocates, Thomas de la Mare and Martin Goudie, who had represented Mohamed during the court’s closed sessions, when confidential material was being discussed. In September, the judges noted that, in the opinion of the Special Advocates, the government’s Public Interest Immunity Certificate “failed to address, in the light of allegations made by BM, the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment,” and in his request for submissions from the media, Lord Justice Thomas again referred to the Special Advocates’ advice, noting that:

The Special Advocates contended that no claim to public interest immunity could lie [i.e. be allowed] in respect of information which pointed to the commission of serious criminal offences, particularly those contrary to the rule of jus cogens in international law [fundamental principles, including a ban on the use of torture, from which no derogation is ever permitted]. The Defendant [the British government] accepted for the purposes of that argument, and subject to substantial caveats, that there was an arguable case of cruel, inhuman and degrading treatment. Further, given the fluid boundary between cruel, inhuman and degrading treatment and torture, the Defendant did not wish to contend that on the limited information available a concluded view could be reached that there was not torture. Accordingly, the Court considered this issue on the basis that the material arguably disclosed cruel, inhuman and degrading treatment and torture.

Lord Justice Thomas stated that those wishing to make submissions should notify the Court of their intention to do so by no later than Friday November 14, and must provide submissions by Monday December 1. He explained that the parties and the Special Advocates would then be given two weeks to reply to the submissions, and that the Court would then consider its judgment.

Submissions should be made to: Mrs. Jean Curtin, Clerk to Lord Justice Thomas, Royal Courts of Justice, Strand, London WC2 or by email to: jean.curtin@judiciary.gsi.gov.uk.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

Binyam Mohamed, Guantanamo bay and Britain's betrayal

Alex Doherty — Fri, 12 Sep 2008 15:53:32 +0000

On September 10, the Independent featured an article about Guantánamo prisoner and British resident Binyam Mohamed, which included exclusive extracts from a statement that Binyam made on August 11 during a visit by Cori Crider, staff attorney for Reprieve, the legal action charity whose lawyers represent 31 prisoners in Guantánamo.

An Ethiopian-born Londoner, Binyam spent his 30th birthday in isolation in Guantánamo just weeks before Ms. Crider’s visit. He has been imprisoned since April 2002, when he was seized in Pakistan during a particularly intense and paranoid phase of the “War on Terror.” Rendered to Morocco by the CIA in July 2002, he was tortured on behalf of the United States for 18 months, and was then flown to Afghanistan, where he spent another nine months in the “Dark Prison,” a CIA torture prison near Kabul, and the US military prison at Bagram airbase. He arrived in Guantánamo in June 2004.

In April this year, Binyam’s lawyers submitted a request for documents in the possession of the British government relating to knowledge of his rendition and torture, based, in particular, on a visit to Binyam that was made by British agents in May 2002, when he was in a Pakistani jail but evidently under US supervision, and on questions that were put to him by his Pakistani torturers about his life in London, which could only have come from the British intelligence services.

When the government’s lawyers refused to release this information, claiming that they had no responsibility to do so, Binyam’s lawyers sued the government, arguing that the need for this information was pressing because Binyam was about to be put forward for trial at Guantánamo in the Military Commissions (described, in 2003, as a “kangaroo court” by Lord Steyn, a British law lord), and the information was needed to mount an effective defence to allegations that were produced under torture.

This, in turn, led to a judicial review in the High Court at the end of July, and a spectacular ruling, delivered on August 22 by Lord Justice Thomas and Mr. Justice Lloyd Jones, in which the judges ruled that David Miliband, the Foreign Secretary was “under a duty” to disclose the requested information “in confidence” to Binyam’s legal advisers. The judges stated that this was “not only necessary but essential for his defence” for three particular reasons: firstly, because the Foreign Secretary had not made the documents available to Binyam’s lawyers; secondly, because the US authorities had also refused to do so; and thirdly, because the Foreign Secretary had accepted that Binyam had “established an arguable case” that, until his transfer to Guantánamo, “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States.”

Noting that there were possible implications for national security, however, the judges granted the government a week to submit a Public Interest Immunity (PII) Certificate. This was turned down on September 5, but the government was granted more time to submit another PII Certificate, in light of some begrudging concessions made by the US State Department regarding the provision of evidence should his case come to trial.

The judge’s ruling on this second PII Certificate is expected in the next week or so, but reproduced below is Binyam’s full statement in response to the judicial review, which concluded the week before Ms. Crider’s visit, as well as other comments and observations about the current situation in Guantánamo.

Described by Ms. Crider as “very frail and depressed,” Binyam told her, “I’m sick, and I don’t know it. We got so used to being sick that we scarcely notice. Like a person limping who stops noticing, my health problems are so chronic that I barely notice them anymore.” Speaking of conditions in general, he made the following observation: “I thought the US would at least say, ‘improve the conditions’, so they could take the pressure off from those pushing for the prisoners’ release.”

He proceeded to describe his daily life at Guantánamo, explaining that his “recreation time” (the only time he is allowed outside), which is often portrayed in media reports as taking place in a yard, actually takes place in a “small cage.” He said that he “tries to run in this cage”, but asked how he is supposed to “run in circles in a cage that is a three metre by four metre cell”? He added, “I turn so much that the nerves on the outside of my foot have frayed.”

He also spoke about the refusal of the authorities to provide adequate reading material. “I have asked for educational books from the library”, he said, “but there is nothing to read in the library.“ Explaining that he had already read the old National Geographic and sports magazines that were available, he added that he cannot read the books in Arabic, and desperately wants to read educational books in English — “maths, English, geography.”

Referring to the Australian prisoner David Hicks (released in May 2007), who apparently had a large library of books to read, Binyam asked, “Where did the 200 books that Hicks had go? If he could get it, why don’t I have it? Australia is less powerful than the UK, so why do I not have the same access to reading materials as David Hicks had?”

The following is Binyam’s statement in response to the judicial review:

Binyam Mohamed’s statement from Guantánamo, August 11, 2008

I have learned that the UK has refused to give my lawyers information to help me prove my innocence — and that the UK has taken the position in court that I will get all the information I could possibly need through the rigged military courts, or through the “habeas” process.

How can they possibly be taking this position? Lord Steyn himself called these commissions “kangaroo courts” years ago, and he was exactly right. And I understood the official UK position to be that the commissions were unfair, and illegal, and that Britons should never be forced to go through them.

So how, then, can they say that the very people who tortured me, rendered me, and now want to try me in a kangaroo court will just hand over the evidence of their own criminal acts? For the UK to say this is naïve, at best, and a betrayal, at worst.

And as for habeas –- I have been here for over six years, and I have yet to see a single scrap of proof come out of habeas. Why should I, or the UK, think it will be different now?

The UK has now spoken to me. The UK knows, I believe, what I go through every day. The UK should understand that no person could withstand this kind of treatment for much longer. To leave me in these conditions and, to add insult to injury, to defend the rigged process I am facing here, is a disgrace. I hope the UK government will reconsider its position before it is too late.

Signed this 11th day of August 2008.

Binyam Mohamed

Cori Crider (witness)

In addition, Binyam also talked about the testimony in his judicial review of “Agent B,” one of two British agents who had visited him in May 2002, when he was being held in Pakistan. In their ruling, the judges declared that Binyam’s imprisonment was illegal according to Pakistani law, and cross-examined “Agent B” in several days of closed sessions. What happened in these sessions was not revealed, of course, but it was inferred that the agent was being asked in great detail about his account of Binyam’s interrogation, and the fact that he brought his own lawyer with him indicated that what was under discussion may have involved the possibility of criminal charges.

Binyam particularly objected to a claim by “Agent B” that he had no recollection of the following story, as related to Clive Stafford Smith during a previous visit to Guantánamo:

They gave me a cup of tea with a lot of sugar in it. I initially only took one. “No, you need a lot more. Where you’re going, you need a lot of sugar.” I didn’t know exactly what he meant by this, but I figured he meant some poor country in Arabia. One of them did tell me I was going to get tortured by the Arabs.

During his meeting with Cori Crider on August 11, Binyam said, “I had two interrogators in Pakistan. ’B’ was interrogating, but it was the other unknown agent who made the threat about the tea. This person — we’ll call him ‘Agent X’ — walked in with ‘B’ at the start of the session. That was when he made the threat, and ‘B’ was there to hear it. A Pakistani had brought the tea. I told them, ‘one lump of sugar,’ and then ‘Agent X’ made the threat. In fact, ‘Agent B’ sat down as ‘X’ made the comment, and said, ‘just ignore him.’”

“Why would he lie?” Binyam continued. “Why not do what the Americans do and just change the meaning? If the Americans can change the meaning of torture, and you’re going to defend them, you might as well copy their tricks. They could at least argue that saying ‘sugar in tea’ wasn’t a threat, but they can’t claim that they didn’t say it at all.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

High Court Rules on Binyam Mohamed

Tim Holmes — Tue, 02 Sep 2008 12:37:03 +0000

In the lawless world of Guantánamo –- and the United States’ even murkier network of secret prisons run by or on behalf of the CIA –- it has taken six years and four months for British resident Binyam Mohamed to secure anything resembling justice.

Seized in Pakistan in April 2002, Binyam was rendered to Morocco three months later, where he was tortured on behalf of the US for 18 months, in sessions that regularly included having his genitals cut with a razor, and was then held for nine months in Afghanistan, first at the “Dark Prison,” a secret prison run by the CIA, where he was also tortured, and then at Bagram airbase. He has been held at Guantánamo since September 2004.

When justice finally came for Binyam, it was not at Guantánamo, but in London’s High Court, where, last Thursday, Lord Justice Thomas and Mr. Justice Lloyd Jones delivered a stinging rebuke to both the British and the American governments: to the British for the complicity of the UK intelligence services in the US administration’s post-9/11 policies of “extraordinary rendition” and torture, and to the Americans for the lawless conduct of the trials by Military Commission that were established in the wake of the 9/11 attacks to deal with “terror suspects” like Binyam (even though the judges professed in their ruling that they “did not consider it necessary to form any view about the overall fairness of the Military Commissions procedure”).

The road to the High Court opened up in May this year, when Binyam’s lawyers at the legal action charity Reprieve, who represent over 30 Guantánamo prisoners, teamed up with solicitors at Leigh Day & Co. to sue the British government, seeking the release of information relating to British knowledge of Binyam’s rendition and torture, in preparation for his impending trial at Guantánamo.

In the event, this was prescient, as charges were leveled against Binyam on May 28, in connection with the spectral “dirty bomb” plot that was dropped years ago against US citizen Jose Padilla. It was, therefore, imperative that potentially exculpatory evidence –- which the British possessed, and which they had also handed over to the Americans –- was made available to his lawyers so that they could begin preparing a defence, and, preferably, discover evidence of torture, which would back up Binyam’s claims that the charges against him were based solely on confessions obtained through torture, and would, therefore, make the US administration call off his forthcoming trial.

It was an indication of how far removed the Military Commissions are from legal norms that, although Binyam’s lawyers contended that he had been tortured, and had discovered the records of “extraordinary rendition” flights that matched his accounts, the US administration had not only provided no information to enable them to defend him, but had also categorically refused to account for his whereabouts before his arrival at Bagram.

Whatever information they and the British possessed would, it was stated, be made available to Binyam’s military defense lawyer, Lt. Col. Yvonne Bradley, at the discovery stage, should his trial go ahead, but as the trial of Salim Hamdan demonstrated in late July, some evidence was withheld from the defence until the last possible moment, and other evidence –- relating, for example, to coercive interrogations of Hamdan conducted by the CIA in Afghanistan –- was ruled off-limits by the military judge presiding over the trial, and was, essentially, regarded as though it didn’t exist at all.

In Binyam’s case, his lawyers sued the British government after an earlier attempt to secure potentially exculpatory evidence from the British government was turned down, when the Treasury Solicitors, acting on behalf of the government, attempted to brush aside British complicity in Binyam’s rendition, torture and false confessions by claiming that “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted,” and adding that “it is HM Government’s position that … evidence held by the UK Government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by his British lawyers.

Last Thursday, following a judicial review in the High Court that was triggered when Binyam’s lawyers sued the government, Lord Justice Thomas and Mr. Justice Lloyd Jones demolished the government’s defence of its actions in a 75-page judgment (also available as a five-page summary).

The judges made clear that, after Binyam was captured and US agents came to regard him as “a serious potential threat to the security of the United Kingdom,” the British intelligence services had “every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to cooperate as fully as possible with the United States authorities to that end.” They concluded, however, that the actions of the intelligence services from May 2002, when a British agent visited Binyam in US-supervised Pakistani custody, until February 2003, when the British last received information from the US regarding his interrogations, had placed the British government in a position where it “was involved, however innocently, in the alleged wrongdoing,” which it had helped facilitate.

Regarding Binyam’s time in Pakistan, where the British agent who visited him on May 17, 2002 made it clear that the British government “would not help [him] unless he cooperated fully with the US authorities,” the judges ruled that Binyam’s detention was “unlawful” under Pakistani law, because he “was being detained by the United States incommunicado and without access to a lawyer.” Furthermore, the judges noted that the British intelligence services “provided further information to the United States and further questions to be asked of BM [Binyam]” for nine months after this visit, even though he “was still incommunicado and they must also have appreciated that he was not in a United States facility and that the facility in which he was being detained was that of a foreign government (other than Afghanistan).”

The judges noted that all of the above was particularly significant because the information obtained from Binyam was “sought to be used as a confession in a trial where the charges … are very serious and may carry the death penalty,” and that it is “a long-standing principle of the common law that confessions obtained by torture or cruel, inhuman or degrading treatment cannot be used as evidence in any trial.” They therefore ruled that “by seeking to interview BM in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”

The gravity of this was brought home during the judicial review, when the agent who had interviewed Binyam in Pakistan was cross-examined for several days in closed sessions that were clearly so perilous for the agent, in terms of potential criminal liability for war crimes under the International Criminal Court Act of 2001, that he brought his own legal adviser with him, and, it was revealed in the judgment, initially refused to answer the judges’ questions, fearing self-incrimination. This, of course, is in marked contrast to the position held by the US administration, which has refused to sign up to the International Criminal Court, and which, in addition, maintains that it “does not torture” and continues to do all in its power to deny that it has been responsible for gross human rights abuses.

In the second part of their ruling, the judges took as their starting point an admission by British Foreign Secretary David Miliband, which took place “after the commencement of this application but before the hearing,” that he had “identified documents which he considers could be considered exculpatory or might otherwise be relevant in the context of the proceedings before the Military Commission.” After stating that David Miliband had informed Binyam’s lawyers and had “provided these documents to the United States Government,” the judges added, “It is a matter of regret that the documents have not been made available in the proceedings under the Military Commissions Act in confidence to BM’s lawyers, who have security clearance from the United States authorities to at least secret level.”

This was not the judges’ only thinly-veiled criticism of the behaviour of the US authorities, but it was for three specific reasons that they proceeded to rule that the Foreign Secretary was “under a duty” to disclose “in confidence” to Binyam’s legal advisers the requested information, which was “not only necessary but essential for his defence”: firstly, because the Foreign Secretary had not made the documents available to Binyam’s lawyers; secondly, because the US authorities had also refused to do so; and thirdly, because the Foreign Secretary had accepted that Binyam had “established an arguable case” that, until his transfer to Guantánamo, “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States.”

Having demolished the cases put forward by both the British and American governments, the judges nevertheless held out a lifeline for the Foreign Secretary, pointing out that they would “make no order for the provision of the information” until he “had an opportunity to consider the interests of national security in the light of these judgments,” and set a date for a second hearing on Wednesday August 27.

On the day, what was initially regarded as a straightforward hearing for the Foreign Secretary to announce his response to the judges’ ruling turned into another long session as the government responded to the security concerns mentioned by the judges by filing a Public Interest Immunity (PII) Certificate seeking to suppress disclosure of the documents on the grounds of national security, and the US State Department attempted to strike a deal through correspondence with the Foreign and Commonwealth Office (FCO).

John Bellinger, the US State Department’s Legal Adviser, claimed that public disclosure of the documents was “likely to result in serious damage to US national security and could harm existing intelligence information-sharing arrangements between our two governments.” His only concession to the judges’ ruling was to note that the Office of the Chief Prosecutor in the Office of Military Commissions had agreed to provide the British intelligence documents (44 in total) to the Commissions’ Convening Authority, Susan Crawford, if she requested them, “subject only to the condition that the names of American and British government officials and the locations of intelligence facilities will be redacted from the documents prior to their being provided.” He added that, if Binyam’s trial were to go ahead, the redacted documents would be made available to his military lawyer at the “normal discovery phase” of the process.

In a separate email to the FCO, Stephen Mathias, one of John Bellinger’s deputies, offered a further concession “by way of update,” in which he stated that the Legal Adviser had now decided to present the documents to Susan Crawford, without waiting for her to ask for them. Describing this as “a significant development,” Stephen Mathias proceeded to claim, with a degree of force that appeared rather intimidating, “Ordering the disclosure of US intelligence information now would have only the marginal effects of serious and lasting damage to the US-UK intelligence sharing relationship, and thus the national security of the United Kingdom, and of aggressive and unprecedented intervention in the apparently functioning adjudicatory processes of a longtime ally of the United Kingdom, in contravention of well established principles of international comity.”

As Ben Jaffey (for Binyam) argued in court, neither the State Department’s “carefully calibrated concessions” nor the British government’s claim of Public Interest Immunity were tenable. He pointed out, as the judges did in their ruling, that the case did not involve public disclosure of the documents, but only the confidential disclosure to Binyam’s lawyers, Lt. Col. Yvonne Bradley and Clive Stafford Smith, Reprieve’s Director, who both have US security clearance. He added that the supposed concessions demonstrated merely that the US government was determined to find any method possible to prevent disclosure, and added that nothing offered by the State Department addressed the “central question” relating to Binyam’s rendition and torture. “Where,” he asked, “was Mr. Mohamed between 2002 and 2004?”

Ben Jaffey was equally dismissive of the British government’s PII claims, noting, in particular, that David Miliband had effectively conceded that the British government was going to hand over the intelligence documents to Binyam’s lawyers until the State Department intervened, and calmly dismissing the government’s national security claims. His composure was in marked contrast to that of the government’s representative, Tim Eicke, who struggled to maintain a coherent argument, despite the best efforts of the many representatives of the government and the intelligence services at the back of the court, who kept slipping him notes suggesting new twists on the spurious national security case.

On Friday, the judges delivered their second judgment on Binyam’s case. Noting that the correspondence from the US State Department effected a “significant change” in the US position, they nevertheless refused to accept the British government’s position regarding its Public Interest Immunity Certificate. They were, it seemed, convinced in particular by submissions from the Special Advocates, Thomas de la Mare and Martin Goudie, who represented Binyam in the various sessions of the court that were closed to the public when confidential material was being discussed. In the opinion of the Special Advocates, the PII Certificate, and other proposals presented in a closed session on Wednesday, “failed to address, in the light of allegations made by BM, the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment.”

Adding that this issue was something whose significance had been “accepted on behalf of the Foreign Secretary,” the judges proceeded to note that the Foreign Secretary “nevertheless contended that the issues arising out of BM’s allegations of torture and cruel, inhuman or degrading treatment were implicitly dealt with in his Certificate,” and in the documentation used in the closed session. “Having carefully considered this matter,” the judges wrote, “we do not consider that the issue arising out of the allegations made by BM is implicitly dealt with in these documents.”

Refusing to push the matter further, the judges commended the Foreign Secretary and the FCO’s Legal Adviser, Daniel Bethlehem QC, for having “gone to very considerable lengths to provide BM with assistance,” noting that it was “evident” that they had “been engaged in lengthy discussions which have led to the important changes” summarized in the second judgment. “This,” they added, “has been time-consuming and burdensome, and has rendered very real assistance to the interests of justice in this case.”

As a result, the judges concluded their second judgment by giving the Foreign Secretary another week to come up with a response to their initial ruling and the developments since. They suggested that this could be in the form of another security certificate, although I hope, of course, that, having been thrown another lifeline, the government might find it preferable — bearing in mind the Special Advocates’ description of “the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment” — either to give Binyam’s lawyers what they require, or, preferably, to convince the US administration that, in order to keep the door to the torture chambers firmly shut, the only available course of action is to drop the charges against Binyam and return him to the UK.

Diego Garcia: the UK's shame

JamieSW — Tue, 05 Aug 2008 13:27:35 +0000

The ancient Greek dramatist Aeschylus wrote: “In war, truth is the first casualty.” These words are particularly apt in relation to the British Overseas Territory of Diego Garcia, leased to the United States in 1971, where the truth – that a secret “War on Terror” prison existed from 2002 until as recently as 2006 – has been persistently denied by both the British and American governments.

Yesterday, Time magazine reported that a “senior American official” (now retired), who was “a frequent participant in White House Situation Room meetings” after the 9/11 attacks, stated that “a CIA counter-terrorism official twice said that a high-value prisoner or prisoners were being interrogated on the island” in 2002, and possibly 2003. This is the highest-level admission to date that a secret prison existed on Diego Garcia, but it is by no means the first time that the prison’s existence has been revealed.

In 2003, Time reported that Hambali, an Indonesian “high-value detainee”, who was transferred to Guantanamo in September 2006, was being held on Diego Garcia, and in May this year, El Pais [in Spanish] reported that Mustafa Setmariam Nasar, a joint Syrian-Spanish national who was seized in Pakistan in October 2005, was held on the island in the months after his capture. Unlike Hambali, Nasar’s current whereabouts are completely unknown; he is, in effect, one of “America’s disappeared.”

The reality of Diego Garcia’s secret prison has also been confirmed by retired US general Barry McCaffrey in 2004 and 2006, in a report by Swiss Senator Dick Marty for the Council of Europe and in a statement made to the Observer in March this year by Manfred Novak, the UN’s special rapporteur on torture. In contrast, the position taken by both the British and American governments occupies a parallel universe, in which the timeless resonance of Aeschylus’ words is confirmed.

For five years, since questions were first asked about the secret prison by Lord Wallace of Saltaire in January 2003, the British government refused to acknowledge its existence, and its first denial was indicative of what was to come. “The United States Government,” Baroness Amos explained, “would need to ask for our permission to bring any suspects to Diego Garcia. They have not done so and no suspected terrorists are being held on Diego Garcia.”

The blanket denials finally came to an end this February, when David Miliband announced that his US counterparts had checked their records and had discovered that two rendition flights, each carrying one prisoner, had passed through Diego Garcia in 2002. He maintained, however, that he had been assured that the planes had only landed for refuelling, and that no prisoner had ever set foot on the island. Mr. Miliband repeated these claims just four weeks ago, after apparently receiving further confirmation from his US counterparts that no other rendition flights had passed through British territory.

The latest revelations about Diego Garcia make it abundantly clear that the British government can no longer accept any kind of “assurances” from its US counterparts regarding the use of the island. Ignoring Aeschylus’ sage advice, Ministers have, to put it bluntly, fooled themselves into thinking that ignorance is a substitute for accountability. The truth, of course, is that they are both morally and legally responsible for what takes place on Diego Garcia, and have a duty to address crimes committed on British territory.

As these crimes include kidnapping, “extraordinary rendition” and illegal imprisonment, which are prohibited under domestic UK and international law, and quite possibly torture, which is prohibited under the terms of the UN Convention Against Torture, the British government must immediately initiate a full and open public inquiry into Diego Garcia’s true role in the “War on Terror”.

Binyam Mohamed’s judicial review

JamieSW — Mon, 04 Aug 2008 16:00:55 +0000

On Monday July 28, just four days after his 30th birthday, British resident and Guantánamo prisoner Binyam Mohamed was finally granted the opportunity to have his case heard, albeit in front of a British judge, rather then his American captors, and even though he was unable to attend the hearing, because he remains imprisoned in Guantánamo. There he waits in isolation to discover whether the US administration, which put him forward for trial by Military Commission at the start of June, will formally arraign him on charges of “conspiracy” and “providing material support for terrorism” over the coming weeks.

Binyam has been imprisoned without trial for six years and four months — first in Pakistan, then in Morocco, where he was tortured for 18 months on behalf of the US authorities, then for nine months, in the “Dark Prison” near Kabul, a secret prison run by the CIA and at a US military prison in Bagram airbase, and finally, since September 2004, at Guantánamo.

The judicial review that took place last week came about after Binyam’s lawyers — at Leigh Day & Co. and Reprieve, the legal action charity that represents 30 Guantánamo prisoners — requested, in April, that the British government hand over any evidence in its possession regarding its knowledge of Binyam’s long ordeal, which might provide invaluable exculpatory evidence to assist Binyam in his anticipated trial.

The lawyers were specifically seeking information relating to Binyam’s rendition from Pakistan to Morocco, which was known about in advance by British agents, who visited him in Pakistani custody and offered him a heavily-sugared cup of tea, telling him, “Where you’re going, you need a lot of sugar.” They were also concerned to establish the extent of British involvement in his subsequent torture in Morocco, where, as he told Clive Stafford Smith, Reprieve’s Director, during a visit at Guantánamo, his lowest point came not as the result of his frequent physical torture (which included having his genitals regularly cut with a razor blade), but when his captors asked him questions about his life in London, which could only have come from the British intelligence services, and he realized that he had been betrayed by the country in which he had sought asylum as a teenager.

The trigger for the judicial review was the cold-hearted response of the British government’s lawyers to the request filed by Binyam’s lawyers. The government’s legal advisers claimed that “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted” and that “it is HM Government’s position that … evidence held by the UK Government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by his British lawyers.

Approving an “expedited” judicial review at the start of June (meaning, it would appear, that he understood the urgency of the case), Mr. Justice Saunders explained, “If it is correct that in the course of an interrogation, in which material supplied by the Defendant [HM Government] was employed, the Claimant [Binyam Mohamed] was tortured, then it is arguable that there is an obligation to disclose material which may assist Claimant in establishing before the American Military Court that he was tortured. Whether the Court should exercise its discretion not to order disclosure can only be determined at a full hearing.”

With that final caveat, it was by no means certain that the judicial review would go Binyam’s way, but on Monday the sparks began to fly almost immediately. Dinah Rose QC, Binyam’s counsel, wasted no time in telling Lord Justice Thomas and Mr. Justice Lloyd Jones, as the Guardian described it, that “the security and intelligence agencies were ‘mixed up in wrongdoing’ in cooperating with the US in the unlawful treatment” of Mr. Mohamed, and added that, in return for information provided by the British intelligence services to their US counterparts, the US “provided the UK with the fruits of his interrogation.”

Rose explained to the judges that a British agent, identified only as “witness B,” made a “veiled threat” to Binyam, while he was in Pakistani custody, to encourage him to “cooperate with his interrogators when the officer saw him after he was first captured in Pakistan.” The implication, she noted, was “we won’t help you unless you confess.” She added that MI5 then “repeatedly” supplied the US authorities with detailed information about Mr. Mohamed’s life in London for US officials to use in his interrogation, even though, as she pointed out, the British officials “did not press the US to tell them where Mohamed was being held after he was transferred from Pakistan, and in what conditions.”

Rose also declared that the government “must have known the treatment Mohamed was likely to face [in Pakistan], ‘given the history of the Pakistan authorities.’” This provoked a response from the government’s representatives, who, rather feebly, perhaps, in light of recent revelations that the British government has colluded with the Pakistani authorities in anti-terror operations to a shocking extent, “did not dispute that Mohamed was held incommunicado for three months in Pakistan but did not accept the conditions in which he was held there were unlawful.”

After this promising start, Tuesday’s session was even more explosive. Although the hearing was only scheduled for two days, it was extended after the first half of the day was taken up in a closed court cross-examination of “witness B,” which observers interpreted as meaning that the judges were drilling mercilessly for the truth.

The second half of the day involved a similarly extraordinary scenario. This time the judges, having asked the government to vouch for the independence of Susan Crawford, the Military Commissions’ Convening Authority, who is responsible for overseeing the Commission process, brandished a letterhead which revealed that Ms. Crawford actually works for the US Department of Defense, and declared that, in light of this seemingly clear evidence of political interference in what is supposed to be an impartial trial system, they would be devoting time in their deliberations to examining whether or not the Military Commissions can be regarded as a fair process.

To everyone’s surprise, almost the whole of the rest of the week’s sessions were taken up with the continued closed court cross-examination of “witness B.” Considering that observers had indicated at the start of the judicial review that the cross-examination would probably only last for half an hour, the only rational conclusion that could be drawn was that the allegations of “wrongdoing” mentioned by Dinah Rose QC were being fully explored by the judges — possibly in a criminal context — and this undoubtedly explains why, on arriving at the court earlier in the week, “witness B” had brought his own lawyer with him.

Summing up on Friday, Ben Jaffey, another of Binyam’s lawyers, revisited the complaints made by Dinah Rose in light of the week’s developments. As the Guardian explained, Jaffey highlighted disturbing contradictions in MI5’s statements, telling the court that in his witness statement an MI5 officer had said that Britain’s security and intelligence agencies “did not know” where Mr. Mohamed was after he was flown out of Pakistan in 2002, even though MI5 had explicitly told the Intelligence and Security Committee that it believed that he was in US custody. It was as a result of this statement, Jaffey said, that the committee concluded, in its report on Mr. Mohamed’s case last year, that it was “understandable” that MI5 did not seek assurances about his treatment. Jaffey added that the committee was “not given the full picture,” and delivered a final criticism of MI5, pointing out that, although the intelligence service had indicated at the time that he was in US custody, “it now conceded that he was in a ‘location unknown.’”

Although the US authorities are still maintaining a wall of silence over Binyam’s treatment — with the Associated Press reporting that, on Friday, the Pentagon “refused to say … whether Mohamed was ever taken to Morocco” — the British judges are clearly unimpressed with a situation in which, even after six years, denials and evasion remain the norm. As the judicial review came to an end, Lord Justice Thomas said that Binyam’s case raised “many and very troublesome issues.”

The judges are expected to deliver their ruling in two weeks’ time.

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

Secret Prison on Diego Garcia Confirmed

Ellie Keen — Sat, 02 Aug 2008 06:04:22 +0000

Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar

The existence of a secret, CIA-run prison on the island of Diego Garcia in the Indian Ocean has long been a leaky secret in the “War on Terror,” and yesterday’s revelations in TIME -- based on disclosures by a “senior American official” (now retired), who was “a frequent participant in White House Situation Room meetings” after the 9/11 attacks, and who reported that “a CIA counter-terrorism official twice said that a high-value prisoner or prisoners were being interrogated on the island” -- will come as no surprise to those who have been studying the story closely ( http://www.time.com/time/world/article/0,8599,1828469,00.html).

The news will, however, be an embarrassment to the US government, which has persistently denied claims that it operated a secret “War on Terror” prison on Diego Garcia, and will be a source of even more consternation to the British government, which is more closely bound than its law-shredding Transatlantic neighbor to international laws and treaties preventing any kind of involvement whatsoever in kidnapping, “extraordinary rendition” and the practice of torture.

This is not the first time that TIME has exposed the existence of a secret prison on Diego Garcia. In 2003, the magazine broke the story that Hambali, one of 14 “high-value detainees” transferred to Guantánamo in September 2006, was being held there, and in the years since confirmation has also come from other sources. Twice, in 2004 and 2006, Barry McCaffrey, a retired four-star US general, who is now professor of international security studies at the West Point military academy, revealed the prison’s existence. In May 2004, he blithely declared on MSNBC’s 'Deborah Norville Tonight,' “We’re probably holding around 3,000 people, you know, Bagram air field, Diego Garcia, Guantánamo, 16 camps throughout Iraq,” and in December 2006 he spoke out again, saying, in an NPR interview with Robert Siegel, “They’re behind bars … we’ve got them on Diego Garcia, in Bagram air field, in Guantánamo.”

The prison’s existence was also confirmed by Dick Marty, a Swiss senator who produced a detailed report on “extraordinary rendition” for the Council of Europe in June 2007 and by Manfred Novak, the UN’s Special Rapporteur on Torture, in March this year. Having spoken to senior CIA officers during his research, Marty told the European Parliament, “We have received concurring confirmations that United States agencies have used Diego Garcia, which is the international legal responsibility of the UK, in the ‘processing’ of high-value detainees,” and Manfred Novak explained to the Observer that “he had received credible evidence from well-placed sources familiar with the situation on the island that detainees were held on Diego Garcia between 2002 and 2003.” The penultimate piece of the jigsaw puzzle came in May, when El Pais broke the story that “ghost prisoner” Mustafa Setmariam Nasar, whose current whereabouts are unknown, was imprisoned on the island in 2005, shortly after his capture in Pakistan -- although the English-speaking press failed to notice.

Despite these previous disclosures, yesterday’s article, by Adam Zagorin, is particularly striking because of the high-level nature of the source, and his admission that “the CIA officer surprised attendees by volunteering the information, apparently to demonstrate that the agency was doing its best to obtain valuable intelligence.” In addition, the source noted that “the US may also have kept prisoners on ships within Diego Garcia's territorial waters, a contention the US has long denied.”

Zagorin also spoke to Richard Clarke (at the time the National Security Council’s Special Advisor to President Bush regarding counter-terrorism), who explained, “In my presence, in the White House, the possibility of using Diego Garcia for detaining high value targets was discussed.” Although Clarke “did not witness a final resolution of the issue,” he added, “Given everything that we know about the administration's approach to the law on these matters, I find the report that the US did use the island for detention or interrogation entirely credible,” and he also pointed out that using the island for interrogations or detentions without British permission “is a violation of UK law, as well as of the bi-lateral agreement governing the island.”

Zagorin’s source did not name the prisoners, but it seems clear that the period he was referring to (“2002 and possibly 2003”) was when three particular “high-value detainees” -- Abu Zubaydah, Khalid Sheikh Mohammed and Ramzi bin al-Shibh -- are reported to have been held on the island, and it seems entirely plausible, therefore, that after these three were transferred to another secret CIA facility in Poland, the prison was used not only to hold Hambali, but also to hold the two other “high-value detainees” captured with him -- Mohammed bin Lep (aka Lillie) and Mohd Farik bin Amin (aka Zubair). The addition of Mustafa Setmariam Nasar, who, it seems, may have been held into 2006, not only confirms that a secret prison existed, but that it was possibly in use for four years straight.

These damaging revelations seal Diego Garcia’s reputation as a quagmire of injustice. A British sovereign territory -- albeit one that was leased to the United States nearly 40 years ago, when the islanders were shamefully discarded by the British government and exiled to face destitution and death by misery in Mauritius -- Diego Garcia has long been a source of shame to opponents of modern colonial activity ( http://www.indymedia.org.uk/en/2007/10/384112.html).

Until now, however, the only admission that any activities connected with the “War on Terror” had taken place on the island came in February, when, after years of denials on the part of the British government, David Miliband, the Foreign Secretary, finally conceded that requests for information from his US counterparts had revealed that, in 2002, two rendition flights had refuelled on the island. “In both cases,” Miliband stated with confidence, “a US plane with a single detainee on board refuelled at the US facility in Diego Garcia. The detainees did not leave the plane, and the US Government has assured us that no US detainees have ever been held on Diego Garcia” ( http://www.indymedia.org.uk/en/2008/02/392068.html).

The British government had been provoked to action by critics within the UK, in particular the All-Party Parliamentary Group on Extraordinary Rendition, led by the Tory MP Andrew Tyrie, and the legal action charity Reprieve ( http://www.reprieve.org.uk/), which represents 30 prisoners in Guantánamo, but the story appeared to grind to a halt when Michael Hayden, the CIA’s director, stepped forward to deny that Diego Garcia had ever been used as a “War on Terror” prison.

“That is false,” Gen. Hayden said when asked if a secret prison had existed on Diego Garcia, adding, as the New York Times put it, that “neither of the two detainees carried aboard the rendition flights that refuelled at Diego Garcia ‘was ever part of the CIA’s high-value terrorist interrogation program.’” He also explained that one of the detainees “was ultimately transferred to Guantánamo,” while the other “was returned to his home country,” which was identified by State Department officials as Morocco. “These were rendition operations,” he added, “nothing more.”

Four weeks ago, however, the story resurfaced once more, as David Miliband reported the results of his latest request for information from his US counterparts. This concerned a list of rendition flights, which, in the opinion of Reprieve and the All-Party Parliamentary Group, may also have passed through British territory, but the Foreign Secretary was confident that there was no further evidence to be mined, stating, “The United States Government confirmed that, with the exception of two cases related to Diego Garcia in 2002, there have been no other instances in which US intelligence flights landed in the United Kingdom, our Overseas Territories, or the Crown Dependencies, with a detainee on board since 11 September 2001” ( http://www.indymedia.org.uk/en/2008/07/403006.html).

Yet again, the assurances of his US colleagues did nothing to assuage the critics. Reprieve noted that the British government “intentionally failed to ask the right questions of the US, and accepted implausible US assurances at face value,” and added, presciently, “This remains a transatlantic cover-up of epic proportions. While the British government seems content to accept whatever nonsense it is fed by its US allies, the sordid truth about Diego Garcia’s central role in the unjust rendition and detention of prisoners in the so-called ‘War on Terror’ cannot be hidden forever.”

Just three days after David Miliband’s last attempt to draw a line under the story, the British Foreign Affairs Select Committee published its latest report on the British Overseas Territories, and was scathing about Diego Garcia, declaring that “it is deplorable that previous US assurances about rendition flights have turned out to be false. The failure of the United States Administration to tell the truth resulted in the UK Government inadvertently misleading our Select Committee and the House of Commons. We intend to examine further the extent of UK supervision of US activities on Diego Garcia, including all flights and ships serviced from Diego Garcia.”

Yesterday’s revelations, of course, leave the US administration looking like bald-faced liars and the British government looking like myopic dupes. Whether Michael Hayden was also duped is not known, but his strenuous denial, just five months ago, that a secret prison existed, which was manned by his own employees, will do nothing for the credibility of the US administration, which likes to pretend that it does not torture and has nothing to conceal, but is persistently discovered not only being economical with the truth, but also behaving exactly as though it has guilty secrets to hide.

Whether this scandal will awaken much indignation in the American public remains to be seen, but it is hugely damaging to the British government, which is legally responsible for the activities that take place on its territory, however much it likes to hide behind “assurances” from its leaseholders that they have done nothing wrong.

It scarcely seems possible, but Diego Garcia’s dark history has suddenly grown even darker.

The prisoners held on Diego Garcia

1. Abu Zubaydah (Zayn al-Abidin Muhammad Husayn). Saudi, b. 1971. Seized in Faisalabad, Pakistan in a joint operation by Pakistani forces and the FBI on 28 March 2002, he is regarded by the administration as a senior al-Qaeda operative and training camp facilitator, although this has been disputed by former FBI interrogator Dan Coleman, who has described him as a minor logistician with a split personality ( http://www.andyworthington.co.uk/2008/04/26/the-insignificance-and-insan...).

In February 2008, Gen. Michael Hayden, the director of the CIA, admitted that Abu Zubaydah was one of three prisoners who had been subjected to waterboarding (an ancient torture technique that involves controlled drowning) in CIA custody ( http://www.andyworthington.co.uk/2008/02/06/waterboarding-two-questions-...). Held initially in Thailand, and later in Poland, he is one of 14 “high-value detainees” transferred to Guantánamo in September 2006. At his tribunal in 2007, he denied being a member of al-Qaeda, and made a point of mentioning that he had been tortured. He has not yet been put forward for trial by Military Commission.

2. Khalid Sheikh Mohammed. Kuwaiti/Pakistani, b. 1964 or 1965. The supposed mastermind of the 9/11 attacks, Mohammed (commonly known as KSM) was seized in Rawalpindi, Pakistan on March 1, 2003. Like Abu Zubaydah, he was subjected to waterboarding, and is also presumed to have been held initially in Thailand, and later in Poland. Transferred to Guantánamo in September 2006, he confessed to being “responsible for the 9/11 operation, from A to Z” at his tribunal in 2007, but also made a point of mentioning that he had been tortured. He was put forward for trial by Military Commission in February, and will face the death penalty if convicted.

Rumours that KSM was held on Diego Garcia have surfaced sporadically over the years, one example being an article in the Toronto Star on July 2, 2005, in which Lynda Hurst spoke to John Pike, a US defense analyst. Pike, who told Hurst that he believed that KSM had been held on Diego Garcia, explained, “Diego Garcia is an obvious place for a secret facility. They want somewhere that's difficult to escape from, difficult to attack, not visible to prying eyes and where a lot of other activity is going on. Diego Garcia is ideal.”

3. Ramzi bin al-Shibh. Yemeni, b. 1972. A friend of the Hamburg cell that led the 9/11 attacks, bin al-Shibh was seized in a raid in Karachi, Pakistan on September 11, 2002. He was reportedly intended as the 20th hijacker, but was unable to obtain a visa to enter the United States, and subsequently worked closely with KSM in planning the attacks. Transferred to Guantanamo in September 2006, he is also presumed to have been held initially in Thailand, and later in Poland, but his presence on Diego Garcia has long been suspected, because analyses of flight records have revealed that a plane flew from Pakistan to Diego Garcia immediately after his capture. He refused to take part in his tribunal in 2007, but was put forward for trial by Military Commission in February, and will face the death penalty if convicted.

4. Hambali (Riduan Isamuddin). Indonesian, b. 1966. Seized in Ayutthaya, Thailand in a joint operation by Thai forces and the CIA on 11 August 2003, he is regarded as the main link between al-Qaeda and its Indonesian counterpart, Jemaah Islamiyah (JI). He is alleged to have been one of the planners of the Bali bombings in October 2002, which killed over 200 people, and was transferred to Guantánamo in September 2006. At his tribunal in 2007, he said that he resigned from JI in 2000, and was not involved with al-Qaeda or with any bombings or plots. He has not yet been put forward for trial by Military Commission.

5 and 6. Lillie (Mohammed Nazir bin Lep) and Zubair (Mohd Farik bin Amin). Malaysians, seized with Hambali, little is known of these two men, beyond claims by the administration that they worked closely with Hambali, although they were both discussed in another TIME article, in October 2003, which examined Hambali’s interrogation logs. They were transferred to Guantánamo in September 2006, but have not yet been put forward for trial by Military Commission.

7. Mustafa Setmariam Nasar (Abu Musab al-Suri). Syrian/Spanish, b. 1958. Seized in Quetta, Pakistan in October 2005 and handed over to US forces a month later, he is not accused of being involved in direct attacks on US forces, but is wanted in Spain as a witness in connection with the 2004 Madrid train bombings. Regarded as one of the most significant proponents of universal jihad, his writings include a 1600-page book, The Global Islamic Resistance Call, which was published on the internet in 2004. A critic of al-Qaeda, he reportedly fell out with Osama bin Laden in 1998, and has stated that the 9/11 attacks were catastrophic for the jihadi cause. Unlike the six prisoners mentioned above, he was not transferred to Guantánamo in September 2006, and it is not known, therefore, whether he is being held in a secret CIA prison or if he has been rendered to a third country.

Andy Worthington is the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (published by Pluto Press/the University of Michigan Press), which includes a detailed chapter on rendition and secret prisons ( http://www.andyworthington.co.uk/the-guantanamo-files/).

Scandal of Diego Garcia Rendition Flights

Ellie Keen — Sat, 12 Jul 2008 22:48:23 +0000

This has been a bad week for the British government, in relation to two of the running sores of its foreign policy, both centred on the Overseas Territory of Diego Garcia in the Indian Ocean.

Diego Garcia and the surrounding islands — known collectively as the Chagos Islands — were shamefully cleared of their existing population in the late 1960s, to make way for a US airbase on Diego Garcia itself. This was a manifestation of the “special relationship” between the UK and the US, which involved the old empire facilitating its successor’s global reach, in exchange for a significant discount on the UK’s Trident nuclear missile programme.

Ever since, the exiled Chagossians have been attempting to regain access to their ancestral lands, but with limited success. Although successive British governments have toned down the racist rhetoric used at the time of the islanders’ forced removal — when official documents referred to them as “Tarzans or Men Fridays” — Diego Garcia and the Chagos Islands have remained at the forefront of a colonial mindset that has never quite been extirpated from the Foreign Office’s mentality.

Although the islanders won a stunning victory in the High Court in 2000, which ruled that their expulsion had been illegal, the government fought back in 2003, when Prime Minster Tony Blair invoked an ancient and archaic “royal prerogative” to strike down their claims once more. Although the court of appeal reversed this decision in May 2006, ruling that the islanders’ right to return was “one of the most fundamental liberties known to human beings,” it was clear that, in the struggle between a group of cruelly disposed islanders on the one hand, and the US military-industrial complex on the other, the Chagossians’ fight was far from over.

Last week, just after a party of Chagossians visited London to hear lawyers for the Foreign Office appealing in the House of Lords against the 2006 verdict and claiming, as the Guardian put it, that “[a]llowing the Chagossian islanders to go back to their Indian Ocean homes would be a ‘precarious and costly’ operation,” and that “the United States had said that it would also present an ‘unacceptable risk’ to its base on Diego Garcia,” David Miliband, the foreign secretary, delivered a short statement relating to the other scandal of Diego Garcia: its use for “extraordinary rendition” flights in the “War on Terror.”

After years of denials by the British government that rendition flights had passed through Diego Garcia, David Miliband admitted in February that he had just been informed by his US counterparts that, upon searching their records, they had discovered that two flights had stopped on Diego Garcia in 2002. “In both cases a US plane with a single detainee on board refuelled at the US facility in Diego Garcia,” Miliband said. “The detainees did not leave the plane, and the US Government has assured us that no US detainees have ever been held on Diego Garcia. US investigations show no record of any other rendition through Diego Garcia or any other Overseas Territory or through the UK itself since then.”

At the time, I noted that this appeared to be a sly form of damage limitation, as there was compelling evidence that, far from being used on just two occasions as a transit point, the island had actually housed a secret prison. Three examples will suffice for now, although it’s a safe bet that more revelations are forthcoming.

In October 2003, Time magazine ran an exclusive feature by Simon Elegant focusing on the imprisonment of Hambali, a “high-value detainee,” who spent years in various secret CIA prisons — including Diego Garcia — until he was transferred to Guantánamo in September 2006. Other evidence came from Council of Europe investigator (and Swiss senator) Dick Marty, who reported in June 2006 that, having spoken to senior CIA officers during his research, he had “received concurring confirmations that United States agencies have used Diego Garcia, which is the international legal responsibility of the UK, in the ‘processing’ of high-value detainees.’”

The final piece of evidence came from inside the US administration itself, when Barry McCaffrey, a retired four-star US general, and currently a professor of international security studies at the West Point military academy, let slip on two occasions that Diego Garcia had housed a secret prison. In May 2004, he blithely declared, “We’re probably holding around 3,000 people, you know, Bagram air field, Diego Garcia, Guantánamo, 16 camps throughout Iraq,” and in December 2006 he slipped the leash again, saying, “They’re behind bars … we’ve got them on Diego Garcia, in Bagram air field, in Guantánamo.”

David Miliband’s statement last Thursday did nothing to suggest that the British government had any intention of pushing the matter further with its US allies, even though, as the sovereign power in charge of the islands, the ministers are unable to evade responsibility for what has taken place on Diego Garcia.

Rather feebly, the foreign secretary stated that, after sending a list of possible rendition flights that may have passed through British territory to the US authorities, “The United States Government confirmed that, with the exception of two cases related to Diego Garcia in 2002, there have been no other instances in which US intelligence flights landed in the United Kingdom, our Overseas Territories, or the Crown Dependencies, with a detainee on board since 11 September 2001.”

Reprieve, the legal action charity that has spent several years investigating “extraordinary rendition” and secret prisons, responded by pointing out that the British government “intentionally failed to ask the right questions of the US, and accepted implausible US assurances at face value,” noting that the Foreign Office had declined to ask the US government for the names of the prisoners transported via Diego Garcia in 2002, that it had failed to ask if any other rendition flights had passed through Diego Garcia, even if, as the US asserted, no other planes landed there, and had also failed to ask whether any other flights passed through UK territory en route to engaging in “extraordinary rendition,” which would make the UK complicit in the crime.

The British government faced a fresh barrage of criticism just three days later, when the Foreign Affairs Select Committee published its latest report (PDF) on the Overseas Territories. With reference to Diego Garcia, the Committee declared that “it is deplorable that previous US assurances about rendition flights have turned out to be false. The failure of the United States Administration to tell the truth resulted in the UK Government inadvertently misleading our Select Committee and the House of Commons. We intend to examine further the extent of UK supervision of US activities on Diego Garcia, including all flights and ships serviced from Diego Garcia.”

For good measure, the Committee also had harsh words about the government’s treatment of the Chagossians, noting, “We conclude that there is a strong moral case for the UK permitting and supporting a return … for the Chagossians. The FCO (Foreign Office) has argued that such a return would be unsustainable, but we find these arguments less than convincing.”

Under pressure on two fronts over Diego Garcia, it remains to be seen whether the government can once more worm its way out of trouble. Tory MP Andrew Tyrie, who chairs the all-party parliamentary group on extraordinary rendition, is keen not to let this happen. Speaking after the report was published, he chastised the foreign secretary for dismissing his concerns about “extraordinary rendition” when he first raised the issue last October. “The Foreign Secretary persistently gave me the brush-off. He said we could rely on US assurances,” Tyrie said, adding, “My allegations were correct. The Foreign Secretary’s brush-off was not just misplaced, it was a disgrace.”

Reprieve was even more blunt, stating, “This remains a transatlantic cover-up of epic proportions. While the British government seems content to accept whatever nonsense it is fed by its US allies, the sordid truth about Diego Garcia’s central role in the unjust rendition and detention of prisoners in the so-called ‘War on Terror’ cannot be hidden forever.”

Andy is the author of The Guantanamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

Binyam Mohamed embarks on hunger strike to protest Guantánamo charges

Tim Holmes — Fri, 06 Jun 2008 16:20:40 +0000

This has been a disturbing week for British resident and Guantánamo prisoner Binyam Mohamed, who endured two and a half years of torture at the hands of Pakistani agents, the CIA, and the United States’ proxy torturers in Morocco, before being transferred to Guantánamo in September 2004.

Last Friday, it was revealed that he was to face a trial by Military Commission at Guantánamo — the “terror courts” invented by Dick Cheney and his advisers in November 2001, which are empowered to conceal classified information from the defendants and, at the judge’s discretion, to accept “evidence” obtained through coercion. This is, of course, particularly worrying in Binyam’s case, as every shred of the so-called evidence against him appears to have been extracted through torture, and would be inadmissible in a courtroom on the US mainland.

There was some brighter news for Binyam on Tuesday, when a judge, Mr. Justice Saunders, responded positively to his lawyers’ request for a judicial review, which, they hope, will require the British government to drop its claim that it is “under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted” and that “it is HM Government’s position that … evidence held by the UK Government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by Binyam’s lawyers. His lawyers also hope that a favourable decision in the judicial review will compel the government to reveal whatever information it has regarding British knowledge of Binyam’s rendition to torture in Morocco, and information regarding his life in London, which, Binyam says, was presented to him by his Moroccan torturers.

Today, however, the Independent reports that Binyam is so distressed by the announcement of the charges against him that he has embarked on a hunger strike. In a letter to foreign secretary David Miliband, his lawyers at Reprieve, the legal action charity that provides legal assistance to over 30 Guantánamo prisoners, explain that Binyam “began not eating food on May 2, 2008, when he was 146 lbs (10 stone 6 lbs),” but that this went unnoticed, because “the US military does not count it as a ‘hunger strike’ if the prisoner does not actually refuse the tray.” On May 18, therefore, when his weight had already dropped to 128 lbs (9 stone 2 lbs), Binyam began refusing the trays.

Binyam stopped his strike temporarily, when Clive Stafford Smith, Reprieve’s director, and Lt. Col. Yvonne Bradley, his military lawyer, persuaded him to eat during the three days of their visit, but announced that he would resume on May 24. Stafford Smith explained, “Under the illegal procedures used by the US military in Guantánamo … they will consider him a ‘hunger striker’ and start force-feeding him when he reaches about 120 lbs (8 stone 8 lbs). Stafford Smith thought that this might be on June 4 or 5.

From almost the moment that Guantánamo opened, in January 2002, hunger strikes have been used by the prisoners as the only way to protest the lawless conditions of their confinement — held without charge, with no family contact, with little or no social interaction, and with no inkling of when, if ever, their imprisonment will come to an end.

Persistent hunger strikers, however, are made to suffer even more, and are punished by being force-fed, a procedure that is monstrously cruel. Prisoners are strapped into a restraint chair using 16 separate straps — three across the head alone — and fed, twice a day, through a tube that is inserted into the stomach through the nose.

As well as being shockingly painful — and frequently unhygienic, as the tubes are not always cleaned after each use — force-feeding is also illegal, as the World Medical Association made clear in its Declaration of Tokyo in 1975: “Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially.”

The US administration ignores this requirement, as it is unwilling to let prisoners secure what it would regard as a PR victory if they starved themselves to death. Perhaps as a result, four long-term hunger strikers – three in June 2006, and another last May — took the only other action that was available to them, and committed suicide.

Binyam has not yet reached this state of desperation — although in a letter to Prime Minister Gordon Brown, on May 22, he wrote, “I have been next to committing suicide this past while. That would be one way to end it, I suppose.” Nevertheless, as Clive Stafford Smith points out, “The need for humanitarian intervention on behalf of Mr. Mohamed grows ever more urgent. Because no US court will hear his case, I am powerless to secure him the humane treatment that he needs. The British government is not powerless. It is crucial that this be top of the government’s agenda.”

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

Letter from Guantánamo to Gordon Brown

Ellie Keen — Sat, 31 May 2008 20:40:55 +0000

Today’s Independent runs a front-page story, The Last Briton in Guantánamo faces death penalty, focusing on the plight of British resident Binyam Mohamed. Seized in Pakistan in April 2002, Binyam was subsequently rendered to Morocco, where proxy torturers, working on behalf of the Americans, tortured him for 18 months, in interrogation sessions that included regularly cutting his penis with a razor blade. He was then transferred to the “Dark Prison,” a secret CIA prison near Kabul, modelled on a medieval torture dungeon, but with the addition of ear-splitting music and noise, which was blasted into the cells for 24 hours a day, and finally arrived in Guantánamo in September 2004.

In November 2005, Binyam was put forward for trial by Military Commission –- a novel system of trials for “terror suspects,” invented by Vice President Dick Cheney and his advisers in November 2001 –- but in June 2006, after one farcical episode in front of a judge, which ended up with Binyam holding up a sign declaring that the “Commissions” were “Con-missions” instead, the entire system was ruled illegal by the U.S. Supreme Court.

The Commissions were revived later that year, when Congress passed the Military Commissions Act, and it is expected that Binyam will imminently face charges under this second version of the “Con-missions,” even though they have yet to demonstrate that they can actually function, and even though Binyam and his lawyers at Reprieve, the legal action charity that works on behalf of over 30 prisoners in Guantánamo, have always maintained that not a shred of evidence of Binyam’s alleged involvement in a bomb plot conceived with various senior al-Qaeda figures was produced without the use of torture.

The Independent’s article featured excerpts from a letter to Prime Minster Gordon Brown, which was dictated by Binyam to his lawyer, Clive Stafford Smith, the director of Reprieve, during a visit at Guantánamo last week. Below is the full text of the letter, which was delivered to 10 Downing Street yesterday.

Note that Binyam’s mention of the intervention of the British government refers to the government’s request for the return of five British residents –- including Binyam –- last August. Although three residents were subsequently returned (in December), he was not one of them, as the US authorities refused to release him. His mention of the Treasury Solicitors refers to a recent lawsuit filed by Reprieve and solicitors at Leigh Day demanding that the government release any information they have regarding British knowledge of Binyam’s rendition to Morocco, and any information that was provided to US intelligence.

Guantánamo Bay

Thursday, May 22nd 2008

Dear Prime Minister Brown,

I have been held without trial by the U.S. for 6 years, 1 month & 12 days. That is 2,234 days (very long days, and often longer nights). Of this, about 550 days were in a torture chamber in Morocco, and about 150 in the “Dark Prison” in Kabul. Still there is no end in sight, no prospect of a fair trial.

Because I am a Londoner, your government states publicly that you support my right to return home there as soon as possible. I am grateful for that. I always viewed Britain as the country that stood up for human rights more than any other. That was why I came to Britain as a refugee.

Before the intervention of your government to help me, I was more resigned to my fate, to be held forever without a fair trial. When your government intervened I had hope. But it has been a cruel hope. Nine months later I am still here, no closer to home, still in this terrible prison.

When I learned that my Moroccan torturers were using information supplied by British intelligence, I felt deeply betrayed. When I learned that your government’s lawyers (the Treasury Solicitors) had told my lawyers they had no duty to help prove my innocence, or even that I had been tortured, I felt betrayed again.

It is long past time to end this matter. I have been next to committing suicide this past while. That would be one way to end it, I suppose.

Binyam Mohamed

22/MAY/08

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.