Further Lessons in Transparency and Accountability

The opinion the U.K. Court of Appeals handed down last month ordering the release of the seven paragraphs corroborating Binyam Mohamed's account of his treatment in Pakistan contained this paragraph:

Fourthly, the Foreign Secretary must have prepared the certificates on the basis of advice from members of the SIS and the SyS, whose involvement in the mistreatment of Mr. Mohamed has been the subject of findings by the Divisional Court . Having said that, witness B is currently under investigation by the police; and it is impossible, at any rate at this stage, to form a clear or full view as to precisely what his involvement was in the mistreatment of Mr. Mohamed.

The paragraph was part of Lord David Neuberger's concurring opinion, and when the court's decision was handed down on February 9, 2010, Lord Neuberger made clear it was a draft paragraph and that it was subject to further revision.

This past Friday, the Appeals Court issued an extraordinary document that not only contains Lord Neuberger's final version of the paragraph, but also chronicles the drama surrounding the drafting of what is known as paragraph 168 of the Court's opinion.

Here is the paragraph Lord Neuberger originally drafted:

Fourthly, it is also germane that the SyS were making it clear in March 2005, through a report from the Intelligence and Security Committee that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet that does not seem to be true: as the evidence in this case showed, at least some SyS officials appear to have a dubious record when it comes to human rights and coercive techniques, and indeed when it comes to frankness about the UK's involvement with the mistreatment of Mr Mohamed by US officials. I have in mind in particular witness B, but it appears likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by SyS personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning such mistreatment can be relied on, especially when the issue is whether contemporaneous communications to the SyS about such mistreatment should be revealed publicly. Not only is there an obvious reason for distrusting any UK Government assurance, based on SyS advice and information, because of previous “form”, but the Foreign Office and the SyS have an interest in the suppression of such information.

The original passage contained what would have been the Court opinion's most direct criticism of the conduct of the U.K. in connection with Mohamed's treatment while in U.S. custody: intelligence officials have a “dubious record” when it comes to human rights abuses and “to frankness about the UK's involvement with the mistreatment of Mr. Mohamed by U.S. officials”; their misstatements to the Foreign Secretary about what they knew raise questions about whether any statements they made about the case are credible; and in addition to this “obvious reason for distrusting any U.K. Government assurance” that relies on intelligence service information, both the Foreign Office and the intelligence services “have an interest in the suppression” of information about the extent to which the U.K. knew about, and was complicit in, his abuse.

Following established practice, the Judges had circulated their draft opinions to the parties in the lawsuit, and the Foreign Office had objected particularly strongly to this paragraph. Judge Neuberger published the short “draft” version of paragraph 126 as a placeholder while he considered the Foreign Office's objections. Last week, he largely restored the original paragraph, having clarified that he was speaking specifically about the U.K. 's involvement in Binyam Mohamed's case and not about abusive U.S. interrogations in general and removing the reference to the Foreign Office's interest in suppressing information. Here's the final version of the paragraph:

Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services' advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

This seems, on one level, like arcane and dull court business. But there's something thrilling about this document. It has to do with the Court's insistence on doing its work to the maximum extent possible in the public eye. It has to do with one Judge's insistence on underscoring the most troublesome aspect of the Binyam Mohamed case for British citizens—that their government's intelligence services were complicit in his torture and then lied about their involvement. And it has to do with the fundamental belief that underlies this little drama about the drafting of one paragraph: that words matter, and never more than in the quest for truth and accountability.
 

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