The torture/intelligence sharing allegations
I'm glad Nick Clegg has pointed out that this all "smacks of a cover-up".
You can read the case yourself here - you can thank my legal research skillz for that ;)
Here's my "summary" of the case:
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, [2009] EWHC 152 (Admin)
Thomas LJ, sitting with Lloyd Jones J., High Court (QBD), 4th February 2009
- The Special Advocates (e.g. Clive Stafford-Smith, for Mr Mohamed) argued that, in issues concerned with allegations of illegality (especially those concerned with degrading treatment, which the Court treated in the same way as torture) on the part of the Executive, there is an absolute bar to the national security defence in actions concerned with public interest.
-- This argument was rejected in favour of a "balance" approach, where the public interest in disclosing the documents and the national security interest in keeping them private have to be weighed against one another [28]-[33]
Applying that test (elaborated from the principles set out in ex parte Wiley [1995] AC 274), the court set out (at [34]) to answer four questions:
1)Is there a public interest in bringing the paragraphs into the public domain?
-- at [54], they answered strongly in the affirmative:
[...] it is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice."
2)Will disclosure bring about a real risk of serious harm to an important public interest, and if so, which interest?
- It was concluded that the interests affected are national security and international relations, stating in particular (and controversially) at [62]:
62. The Foreign Secretary's certificates, particularly the certificate of 5 September 2008, make clear that the United States Government's position is that, if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the United States Government might carry that threat out and this would seriously prejudice the national security of the United Kingdom
They concluded, however, that in such cases as this, "the Foreign Secretary is the expert and not ourselves" [64](following the long tradition of judicial deference in matters of national security, e.g. SSHD v Rehman [2001] UKHL 47).
-- The Special advocates challenged that, given the circumstances that suggest a conflict of interest (i.e., that keeping the documents out of the public domain also prevents possible prosecution of the SoS/members of the Foreign Office or Intelligence Services). At [66], the Court stated that
"We accept that it is open to a court to consider the statement of a Secretary of State where there is no evidential basis for the assessment or there is evidence of a lack of good faith.
---However, they then concluded that there was substantial evidence to support the view that the decision was taken in good faith, referring to evidence they had been provided with:
[75] It is evident from the materials with which we have been provided that the assessment of the risk to the intelligence relationship with the United States was made by the Foreign Secretary in good faith and on the basis of evidence including statements made by officials of the United States Government who held office at the highest levels in the period from July to October 2008. Indeed there is evidence for the Foreign Secretary's further view that the United States Government would perceive making public the redacted passages as "gratuitous".
At [78], the court also states:
It was submitted to us by Mr David Rose that the situation had changed significantly following the election of President Obama who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment and to close Guantanamo Bay. We have, however, been informed by counsel for the Foreign Secretary that the position has not changed. Our current understanding is therefore that the position remains the same, even after the making of the Executive Orders by President Obama on 22 January 2009 [...]The concern of the United States pertains not to disclosure of the treatment of detainees that might be levelled against the administration of President Bush, but to the disclosure of information obtained through intelligence sharing. However, as we have observed the United States Government will still not make the information public
3) Can the real risk of serious harm to national security and international relations be protected by other methods or more limited disclosure?
One such avenue was to release the documentation to the ISC, the body set up to oversee the Intelligence Services and report to Parliament. This had already happened, due to these provisions; and the judgment continued (at [88]) to say:
Although the express provisions of the Act do not [...]permit the ISC to investigate particular cases, we understand that with the agreement of the Prime Minister, it has extended its remit to do so, as part of its general Parliamentary scrutiny of the operation of the SyS and the SIS. This is an important constitutional development as the ISC is being made a powerful means of ensuring that the SIS and SyS can be made democratically accountable for their conduct and of ensuring that they act in accordance with the rule of law and do not facilitate action by other States which is contrary to our law and values.
However, the ISC cannot disclose the information into the public domain (at [91]), and its annual reports are subject to being edited by the Prime Minister.
Another alternative is a reference to the Attorney General (the assessment at [96]-[98] is quite interesting!), which has already happened - at the request of the Home Secretary. This, again, does not guarantee public disclosure of the information, however - in the court's opinion.
At 102, they also state that:
"these [alternative] means do not address two other aspects of the public interest in upholding the rule of law and democratic principles:
i) Provision of information that might enable others to be prosecuted in other jurisdictions.
ii) Provision of information for an informed debate to take place on the issues of torture and cruel, inhuman or degrading treatment"
4) If the alternatives are insufficient, where does the balance of the public interest lie?
The court concluded that
"in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain. "
Quite how all this tallies with the "Special Relationship" touted by Milliband and Clinton just a day before the judgment, I'm not sure...
Of course the UK Government aren't going to allow the documents to be disclosed, especially if (as has been suggested in several BBC reports) they knew what was going on at Guantanamo and asked the US to ask Biniyam Mohamed questions... This is the key overlap between national security and civil liberties - while the government can hide sensitive information under the cloak of "national security", they are protecting their own skin at the same time, by preventing disclosure of them suppressing civil liberties.
It's just as well we have a new American administration, but it seems this is yet another offshoot of the first serious test of Obama's committment to balancing civil liberties and national security. Will he live up to it?
You can read the case yourself here - you can thank my legal research skillz for that ;)
Here's my "summary" of the case:
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, [2009] EWHC 152 (Admin)
Thomas LJ, sitting with Lloyd Jones J., High Court (QBD), 4th February 2009
- The Special Advocates (e.g. Clive Stafford-Smith, for Mr Mohamed) argued that, in issues concerned with allegations of illegality (especially those concerned with degrading treatment, which the Court treated in the same way as torture) on the part of the Executive, there is an absolute bar to the national security defence in actions concerned with public interest.
-- This argument was rejected in favour of a "balance" approach, where the public interest in disclosing the documents and the national security interest in keeping them private have to be weighed against one another [28]-[33]
Applying that test (elaborated from the principles set out in ex parte Wiley [1995] AC 274), the court set out (at [34]) to answer four questions:
1)Is there a public interest in bringing the paragraphs into the public domain?
-- at [54], they answered strongly in the affirmative:
[...] it is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice."
2)Will disclosure bring about a real risk of serious harm to an important public interest, and if so, which interest?
- It was concluded that the interests affected are national security and international relations, stating in particular (and controversially) at [62]:
62. The Foreign Secretary's certificates, particularly the certificate of 5 September 2008, make clear that the United States Government's position is that, if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the United States Government might carry that threat out and this would seriously prejudice the national security of the United Kingdom
They concluded, however, that in such cases as this, "the Foreign Secretary is the expert and not ourselves" [64](following the long tradition of judicial deference in matters of national security, e.g. SSHD v Rehman [2001] UKHL 47).
-- The Special advocates challenged that, given the circumstances that suggest a conflict of interest (i.e., that keeping the documents out of the public domain also prevents possible prosecution of the SoS/members of the Foreign Office or Intelligence Services). At [66], the Court stated that
"We accept that it is open to a court to consider the statement of a Secretary of State where there is no evidential basis for the assessment or there is evidence of a lack of good faith.
---However, they then concluded that there was substantial evidence to support the view that the decision was taken in good faith, referring to evidence they had been provided with:
[75] It is evident from the materials with which we have been provided that the assessment of the risk to the intelligence relationship with the United States was made by the Foreign Secretary in good faith and on the basis of evidence including statements made by officials of the United States Government who held office at the highest levels in the period from July to October 2008. Indeed there is evidence for the Foreign Secretary's further view that the United States Government would perceive making public the redacted passages as "gratuitous".
At [78], the court also states:
It was submitted to us by Mr David Rose that the situation had changed significantly following the election of President Obama who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment and to close Guantanamo Bay. We have, however, been informed by counsel for the Foreign Secretary that the position has not changed. Our current understanding is therefore that the position remains the same, even after the making of the Executive Orders by President Obama on 22 January 2009 [...]The concern of the United States pertains not to disclosure of the treatment of detainees that might be levelled against the administration of President Bush, but to the disclosure of information obtained through intelligence sharing. However, as we have observed the United States Government will still not make the information public
3) Can the real risk of serious harm to national security and international relations be protected by other methods or more limited disclosure?
One such avenue was to release the documentation to the ISC, the body set up to oversee the Intelligence Services and report to Parliament. This had already happened, due to these provisions; and the judgment continued (at [88]) to say:
Although the express provisions of the Act do not [...]permit the ISC to investigate particular cases, we understand that with the agreement of the Prime Minister, it has extended its remit to do so, as part of its general Parliamentary scrutiny of the operation of the SyS and the SIS. This is an important constitutional development as the ISC is being made a powerful means of ensuring that the SIS and SyS can be made democratically accountable for their conduct and of ensuring that they act in accordance with the rule of law and do not facilitate action by other States which is contrary to our law and values.
However, the ISC cannot disclose the information into the public domain (at [91]), and its annual reports are subject to being edited by the Prime Minister.
Another alternative is a reference to the Attorney General (the assessment at [96]-[98] is quite interesting!), which has already happened - at the request of the Home Secretary. This, again, does not guarantee public disclosure of the information, however - in the court's opinion.
At 102, they also state that:
"these [alternative] means do not address two other aspects of the public interest in upholding the rule of law and democratic principles:
i) Provision of information that might enable others to be prosecuted in other jurisdictions.
ii) Provision of information for an informed debate to take place on the issues of torture and cruel, inhuman or degrading treatment"
4) If the alternatives are insufficient, where does the balance of the public interest lie?
The court concluded that
"in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain. "
Quite how all this tallies with the "Special Relationship" touted by Milliband and Clinton just a day before the judgment, I'm not sure...
Of course the UK Government aren't going to allow the documents to be disclosed, especially if (as has been suggested in several BBC reports) they knew what was going on at Guantanamo and asked the US to ask Biniyam Mohamed questions... This is the key overlap between national security and civil liberties - while the government can hide sensitive information under the cloak of "national security", they are protecting their own skin at the same time, by preventing disclosure of them suppressing civil liberties.
It's just as well we have a new American administration, but it seems this is yet another offshoot of the first serious test of Obama's committment to balancing civil liberties and national security. Will he live up to it?