Britain’s national security and the lives of its citizens will be put at risk if the High Court publishes its findings on what happened to former terror detainee Binyam Mohamed at the hands of the CIA, two judges were told yesterday.
This was the effective meaning of letters from US Secretary of State Hillary Clinton and CIA officials which warned that the US, even under the new Obama administration, would review its intelligence sharing agreement with the UK if the court releases seven brief paragraphs about Mohamed’s treatment into the public domain, the court was told.
Lawyers for Foreign Secretary David Miliband told Lord Justice Thomas and Mr Justice Lloyd Jones that the threat from America to restrict its intelligence co-operation with the UK had been assessed by Miliband as having a “high risk threshold”.
Lord Justice Thomas, after pointing out that the seven paragraphs in themselves did not pose any threat to national security, said: “So the US has taken the position that this is so serious that it is prepared to reassess its relationship with the UK and put lives at risk?”
Karen Steyn, counsel for Miliband, replied: “The Foreign Secretary’s assessment is based on his own considerable experience and expertise in this field, the expert advice he has received, his direct conversations with others on the issues involved and his direct contact with people in the US.
“I submit it is not open to your lordships to take a different view.”
The hearing was adjourned to a later date after Lord Justice Thomas ordered a transcript of the highly contentious hearing to be provided to Miliband so that he fully understood the court’s stance and that there was “no wriggle room”.
Last year, the judges reluctantly withheld from publication seven short paragraphs summarising US Government reports on Mohamed’s treatment, which were central to his claim that he had been subjected to torture and cruel, inhuman or degrading treatment, and that this had been done with the consent of UK authorities.
Their decision to redact part of their judgment was based on Foreign Office statements that disclosure might compromise the UK’s intelligence-sharing relationship with the US.
Since then, at the request of Mohamed’s lawyers and media organisations, the court has agreed to reopen its judgment with a view to publishing the seven missing paragraphs.
Mohamed, 30, an Ethiopian, was granted refugee status in Britain in 1994. He was detained in Pakistan in 2002 on suspicion of involvement in terrorism and then “rendered” to Morocco and Afghanistan.
After being subjected to alleged torture by his US captors, he was sent to Guantanamo Bay in 2004. Terror charges laid against him were dropped last year and he has since returned to the UK.
The Government has come under increasing pressure to allow disclosure of material which could indicate how much M15 and other government officials knew about the treatment of Mr Mohamed.
Guy Vassall-Adams, counsel for a group of media organisations including The Guardian, The Times, the BBC and the Independent, argued at yesterday’s hearing that the Foreign Office’s stance did not pass the “common sense test”.
It was unrealistic to suggest the publication of seven paragraphs which presented no threat to national security would cause the US authorities to be so “upset and shocked” that they might refuse to share vital intelligence with the UK in the future.
Vassall-Adams said such a situation was unthinkable in the light of the historical alliance between the two nations throughout World War 2, the Cold War and subsequent conflicts in Iraq and Afghanistan.
He told the judges: “Ask yourselves: Would the US jeopardise all of that for the sake of seven paragraphs in a judgment?”
Lord Justice Thomas said that, if Mrs Clinton was saying positively that the US “would”, rather than “could”, reconsider its relationship with the UK, the court would have to have the highest regard to what she said because the implication would be that the lives of men, women and children in the UK would be put at risk.
Steyn agreed and said the Foreign Secretary’s view was that disclosure of the seven paragraphs “could reasonably be expected to cause considerable damage to the national security of the UK” and might damage its international relationships with other countries.
The only reason Mr Miliband was opposing disclosure of the seven paragraphs was to protect the national security and international relations of the UK, she said.
Miliband said not disclosing allies’ intelligence was a “fundamental principle”.
Miliband said after talks with Mrs Clinton in Washington, Mr Miliband said: “Our two countries have a uniquely close intelligence-sharing relationship.
“I think I am right in saying that the House of Commons Intelligence and Security Committee has said that that relationship saves British lives.
“It is a relationship which is based on deep trust … and a fundamental principle for both countries is that we don’t disclose publicly each other’s intelligence.
“That is a fundamental principle of intelligence sharing between any countries and it one which I think is of enormous benefit to both countries.”
Clinton said: “The issue of intelligence sharing is one which is critically important to our two countries and we both have a stake in ensuring that it continues to the fullest extent possible.”