UK Judges Compare Binyam Mohamed’s Torture to That of Abu Zubaydah

Binyam Mohamed is a British resident, seized in Pakistan in April 2002, who was held in Pakistani custody, supervised by US agents, until July 2002, when he was sent by the CIA to be tortured for 18 months in Morocco, and was tied in with a “dirty bomb plot” that never even existed . After his ordeal in Morocco, he spent four months in the CIA’s “Dark Prison” in Kabul, and was then flown to Guantánamo in September 2004.

For the last 15 months, Mohamed has watched as two British High Court judges have tried to release to the public information conveyed by the US intelligence services to their British counterparts regarding his torture in Pakistan, prior to his rendition to Morocco.

In this, they have been thwarted, time and again, by the British foreign secretary, David Miliband, who has repeatedly argued that the disclosure of a seven paragraph, 25-line summary of these documents, compiled by the judges themselves, would threaten Britain’s intelligence-sharing relationship with the United States.

Binyam Mohamed was still in Guantánamo, facing a trial by military commission, when the judges first attempted to make their summary available to the public last August . In the months that followed, the US Justice Department dropped its claim that he was involved in a “dirty bomb plot,” the military commission charges were also dropped, and in February of this year, in a clear attempt by both the British government and the Obama administration to keep a lid on the leaking torture story, he was fast-tracked to the top of the pile of cases being reviewed by the Obama administration’s interagency Task Force, and released in the UK .

Undaunted, however, the judges – Lord Justice Thomas and Mr. Justice Lloyd Jones – refused to back down, challenging the foreign secretary regarding the release of the information on four occasions between October 2008 and October 2009, and, in an apparently unprecedented move, asking the British media to become involved. Last Friday, they issued a sixth judgment on the case , declaring that the treatment of Mohamed “could never properly be described as ‘a secret’ or an ‘intelligence secret’ or ‘a summary of classified intelligence,'” and, moreover, restoring two passages from their fifth judgment, which were removed at the request of the Foreign and Commonwealth Office.

These passages, it transpired, were restored at the insistence of the Special Advocates (lawyers appointed by the government to deal with secret evidence in court on Mohamed’s behalf), who have long maintained that the government has no grounds for hiding “information which pointed to the commission of serious criminal offences” on the basis of national security, and who told the foreign secretary that the previous redactions “were more extensive than was required.”

Although four other passages – and the elusive summary – remain redacted, the two reinstated after the FCO dropped its objections are significant, as they refer to the notorious memos issued by the Justice Department’s Office of Legal Counsel in August 2002 and May 2005, publicly released by the Obama administration in April of this year, which purported to authorize the use of torture by the CIA.

The first passage stated, “One of those memoranda dated August 1 2002, from Mr. J.S. Bybee, Assistant Attorney-General, to Mr. John Rizzo, acting General Counsel of the CIA, made clear that the techniques described were those employed against Mr. Zubaydah, alleged to be a high-ranking member of al-Qaeda.”

The second stated, “As the paragraphs relate to the actions of the United States itself, disclosure of the redacted paragraphs is consistent with the publication of the CIA interrogation technique memoranda [referred to in the paragraph above] and does not publicize any information about foreign States.”

The judges proceeded to express their displeasure with the government’s insistence that the other four passages remained redacted, noting, “The entire content of the four passages [was] already in the public domain,” and adding, “No contention has or could be advanced to the contrary.”

They also reiterated their reasons for stating that their summary of the documents conveyed by US intelligence to their British counterparts should be made publicly available, pointing out, as they have many times before, “What is contained in those seven paragraphs gives rise to an arguable case of torture or cruel, inhuman or degrading treatment,” and that they contain “nothing secret or of an intelligence nature,” as they merely comprise “admissions by officials of the United States Government as to BM’s [Mohamed’s] treatment by them.”

This whole process is clearly nothing less than a long, slow circling around the dark truth of Binyam Mohamed’s torture by US agents in Pakistan (with the knowledge of the British authorities) before he was even sent to Morocco, and in this context, the judges’ decision to compare the still-undisclosed details of Mohamed’s treatment with the publicly available details of the treatment of Abu Zubaydah marks another small but extremely important step toward bringing into the open what the judges (and the special advocates) clearly regard as information that has no business being hidden.

As Clive Stafford Smith, Mohamed’s lawyer, explained in the Guardian:

I have had a copy of the infamous Bybee memo for months, and this allows us to consider which of the “enhanced interrogation techniques” the British government would rather keep under wraps. As identified by Bybee, the 10 techniques are:

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

As Mohamed has never mentioned that he was subjected to waterboarding, and as it appears from the OLC memos that CIA operatives never actually placed insects into Abu Zubaydah’s “confinement box,” despite being authorized to do so, it seems that we are looking, instead, at some, or all of the other eight techniques.

Perhaps this, then, is the reason that the British government remains so desperate not to have the details disclosed of what it knew about Mohamed’s treatment in Afghanistan, because it was complicit in the techniques that were being developed for the CIA’s “high-value detainee” program, whose first official guinea pig was Abu Zubaydah.

To be fair, most of these techniques later migrated to Guantánamo anyway, as part of Defense Secretary Donald Rumsfeld’s desire not to be excluded from the torture game by his old chum Dick Cheney. But what the British judges did last Friday was to take us back to April 2002.

Looking back to that feverish time, shortly after the capture of both Zubaydah and Mohammed, and nearly four full months before Jay Bybee and John Yoo attempted to redefine torture so that the CIA could indulge in its practice, the British judges have made two important points.

Firstly, they have reminded us that torture was, in fact, taking place long before it was supposedly authorized, with disturbing ramifications for those who ordered its use, which have not been adequately addressed by the Obama administration, and which are not addressed at all in Eric Holder’s decision to investigate only those agents who exceeded the indefensible guidelines for “enhanced interrogation” that were laid down by Bybee and Yoo in August 2002.

Secondly, by comparing the treatment of Binyam Mohamed with that of Abu Zubaydah, the judges have also reminded us that the use of torture was not confined to a select group of 14 “high-value detainees” – including Zubaydah and Khalid Sheikh Mohammed – who were moved to Guantánamo in September 2006, but also to 80 other prisoners that the OLC acknowledged were held in secret CIA prisons , and the many dozens of others who had their torture outsourced to proxy torturers in countries including Egypt, Jordan, Morocco and Syria.

Binyam Mohamed was unfortunate enough to face both options – proxy torture in Morocco both before and after he received his own dose of “enhanced interrogation” at the hands of Americans – but last Friday, the tenacious judges in the UK’s High Court at least took one step further toward ensuring that information about these torture programs cannot be concealed by those who authorized it, or were complicit in it, on the spurious basis that disclosure would damage national security.