What Was, and Is, at Stake

The opinion of the UK Court of Appeal ordering the British government to release the seven previously secret paragraphs is particularly vivid in laying out what has been at stake in Binyam Mohamed's lawsuit in the UK.

When Mohamed's lawyers first filed suit in the UK in May 2008, the information contained in the 42 CIA documents those seven paragraphs summarized was potentially a matter of life and death for Mohamed, who faced the possibility of trial before a military commission in Guantánamo for plotting with Jose Padilla to blow up apartment buildings and to set off a “dirty bomb” in the US.

As Baron Igor Judge, the Lord Chief Justice of England and Wales , put it in his lead opinion (PDF),

Although Mr. Mohamed is now discharged from the danger of proceedings in the USA , whether capital, or otherwise, there was a time when he was exposed to a genuine and serious risk that if convicted he would be executed. It was to address the risk of his conviction for a capital offence that the present proceedings were launched in this country against the Foreign Secretary. The redacted paragraphs formed part of the reasons of the court in a judgment which vindicated Mr Mohamed's assertion that UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of USA authorities.

It was during that ill-treatment and torture that Mohamed had confessed to the various plots for which he stood accused; when it became clear that the documents establishing the abuse would make their way into the military commission, the US dropped the “dirty bomb” charge, and a few days later the remaining charges against Binyam Mohamed were dismissed. Three months later, Mohamed was living as a free man again in London. So, in a sense, as the Lord Chief Justice noted,

Mr. Mohamed has undoubtedly achieved the objective of the litigation he brought against the Foreign Secretary. He no longer needs the material which was in the possession of the UK authorities to achieve his acquittal. It can indeed be safely assumed that proceedings based on the confessions while he was held incommunicado at the behest of the USA authorities will never again be contemplated. It therefore follows that later events made disclosure of the redacted paragraphs “unnecessary” and “gratuitous” in the limited sense that Mr. Mohamed is no longer at risk of prosecution on a capital charge. Putting it shortly, he has won.

“That however is not the whole story,” the Lord Chief Justice continued (PDF). There was in fact more at stake. First, there is the question of judicial transparency. The seven paragraphs redacted from the UK court's judgments had summarized the treatment described in the 42 documents and concluded that the abuse would have violated British commitments under international law; the public has in interest in seeing how the court reached its conclusion:

Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial.

It's more than judicial accountability, though. In a case like this one, when the conduct of the executive branch is at issue, fundamental democratic principles are at stake:

There is however a distinct aspect of the principle which goes beyond proper scrutiny of the processes of the courts and the judiciary. The principle has a wider resonance, which reflects the distinctive contribution made by the open administration of justice to what President Roosevelt described in 1941 as the “...first freedom, freedom of speech and expression”. In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.

Finally, and no less importantly, Mohamed himself continues to have a profound stake in the case. Not being tried and executed based on a confession elicited through torture is success of a sort, but Mohamed is entitled to more. Rejecting the “attractive argument that Mr. Mohamed has nothing further to gain from publication of the redacted paragraphs,” the Lord Chief Justice insisted:

The successful party is no less entitled to know the reasons for the court's judgment than the unsuccessful parties. I have already noted the strange consequence that if the redaction is maintained, Mr. Mohamed will know less about the reasons for the court's decision than the intelligence services which, even if innocently, were involved in or facilitated the wrongdoing of which he was the victim. There is a clear interest in Mr. Mohamed knowing, and the community at large also knowing, not only that his allegations were vindicated, but also the full reasons (even if not the entirety of the evidence) which led the court to its conclusion. The redacted paragraphs are integral to the reasoning that Mr. Mohamed's entitlement to relief fell within the ambit of executive involvement in wrongdoing.

This equal access to knowledge is an important step in the process of making the victim of torture whole—a process the Lord Chief Justice notes that Mohamed is pursuing through a separate lawsuit in the UK. “Mr. Mohamed is now taking civil proceedings for damages against the UK government, in effect for their tortuous involvement in the wrongdoing of the USA authorities,” he writes, warning that if the Foreign Secretary “will not make the desired concession” to release the information Mohamed needs in that case, “the court will make whatever decision is appropriate in those proceedings.”

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