Monday, December 14, 2009

Binyam Mohamed case: David Miliband steps up bid to hide proof of torture.

It really is extraordinary to see a democratically elected government go to such lengths to try to stop what it has taken part in from becoming public.

The foreign secretary, David Miliband, is appealing against six high court judgments ruling that CIA information on Mohamed's treatment, and what MI5 and MI6 knew about it, must be disclosed.

In a case which lawyers on all sides agree is unprecedented, counsel for the Guardian and other media organisations, Mohamed and two civil rights groups, Liberty and Justice, will argue tomorrow that the public interest in disclosing the role played by British and US agencies in unlawful activities far outweighs any claim about potential threats to national security.

Miliband's lawyers will tell Britain's three most senior appeal court judges, led by the lord chief justice, Igor Judge, that if the CIA material is disclosed the US might cut off the supply of intelligence to the UK, thus harming national security.

Miliband's argument has already been rejected by judges who have seen the seven redacted passages in question, and they have stated that there is nothing in there which anyone could reasonably claim to be intelligence, but much in there which might embarrass both the American and British governments.
"What is contained in those seven redacted paragraphs gives rise to an arguable case of torture or cruel, inhuman and degrading treatment".

The judges stated after hearing arguments put by Miliband's lawyers: "It was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters."

They added: "Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials, or officials of another state, where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be".

The two high court judges continued: "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," they ruled.

"A vital public interest requires ... 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 ... Championing the rule of law, not subordinating it, is the cornerstone of democracy," they added.

The judges have already stated that Miliband's claim "lacks credibility on its face", and yet here he is still making the same flawed argument; that the law should protect wrongdoers if the American government threatens to withhold intelligence from the UK should this information be made public.

Miliband's lawyers are bringing up a case from last year which also caused a national disgrace and asking that this example be followed again.

They point to a law lords ruling last year that the Serious Fraud Office could not pursue corruption allegations over arms sales by BAE Systems, Britain's biggest weapons maker, to Saudi Arabia because the Saudi government had threatened to stop intelligence-sharing with Britain. The case, in which Sumption also represented the government, has been described by critics as weakening the UK's reputation for observing the rule of law.

If Miliband's logic is followed to it's natural conclusion then any nation which tortures need only threaten to withhold intelligence and their secrets would be considered safe from disclosure by the British government.

It's a rather pathetic argument as it doesn't rely on any moral reasoning, rather it is simply a threat. Normally one wouldn't expect one's government to cave in in the face of threats from foreign powers, so one can only conclude that it is in this Labour government's interest that this information be kept secret.

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