Binyam Mohamed

Statement

13:50:00

The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown)
My Lords, with your permission, I shall now repeat a Statement on Binyam Mohamed made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:

“With your permission, Mr Speaker, I would like to make a Statement to the House on the case of Mr Binyam Mohamed, following the judgment handed down yesterday in the High Court.

The fundamentals of the case are as follows. Mr Binyam Mohamed, an Ethiopian national, formerly resident in the UK, was arrested in Pakistan in 2002. In 2004 he was transferred to Guantanamo Bay. Until August 2007 the Government had taken responsibility for the release and return of British nationals from Guantanamo Bay. In August 2007, my right honourable friend the Home Secretary and I wrote to the US Secretary of State to seek Mr Mohamed’s release from Guantanamo Bay and his return to the United Kingdom, along with four other former UK residents. Over the last 18 months, we have mounted what the court has called a strenuous effort to secure that objective. We have throughout kept Mr Mohamed’s family and lawyers informed of his situation and our efforts to resolve it.

The United States brought terrorist charges in May of last year against Mr Mohamed before a military commission. Mr Mohamed subsequently brought proceedings against the British Government in an effort to secure the disclosure to his legal counsel of any material held by the British Government that might assist in the defence of his case before the military commission. Having looked through all the material we held across government, we provided through the appropriate legal and statutory mechanisms a great deal of both classified and unclassified UK information. Among the information we held, however, we also identified some highly classified US intelligence material. We took the view that the material was potentially exculpatory and ought to be disclosed to Mr Mohamed’s legal counsel. As this was sensitive US government material, we informed the relevant US authorities of our view. We also informed Mr Mohamed’s counsel. We have worked since then to ensure that all the material was indeed made available to Mr Mohamed’s legal counsel by the US Government through their own procedures.

Across the four judgments handed down by our High Court since August of last year, the court has explicitly recognised the efforts of the Government both to secure Mr Mohamed’s release and return and to ensure that the material that we considered ought to be disclosed to him was indeed disclosed. This latter objective was achieved some time ago when the US Department of Justice disclosed the material to Mr Mohamed’s counsel in the course of proceedings in the US federal courts.

At the heart of Mr Mohamed’s case have been allegations that he was tortured by foreign government officials in a number of locations. It is of course the long-standing policy of the Government that we never condone, authorise or co-operate in torture. I repeat that commitment today. We take seriously all allegations of torture and investigate them fully. Allegations have been made in the course of these legal proceedings that the UK is in some way complicit in the alleged mistreatment of Mr Mohamed. Following the court’s judgment of 22 October, on 23 October my right honourable friend the Home Secretary referred the question of possible criminal wrongdoing to the Attorney-General. This is now being considered by the Attorney-General. This is, as the court acknowledged, the proper democratic and legal process.

Yesterday’s judgment was not about that. It was about whether an English court should, in the interests of public debate and understanding, order the disclosure to the general public of sensitive foreign intelligence shared with our own intelligence agencies on the strict understanding that it would not be released.

As anyone who has read the judgments will appreciate, in circumstances in which Mr Mohamed’s access to the information relevant to his defence had been secured, the sole question for my consideration concerned the publication of classified material received from a foreign intelligence agency.

The question at issue was whether intelligence provided on a confidential basis by one state to another—in absolute trust that it will be kept secure—may be disclosed to the public by order of a foreign court, or whether instead the breach of trust would be so grave as to endanger intelligence-sharing relationships and therefore affect national security. In this case it was US intelligence and an English court but it could just as easily be British intelligence in a foreign court.

I had before me the clear and unanimous advice of all key UK departments and agencies. As the court observed yesterday:

“Intelligence is shared on the basis of a reciprocal understanding that the confidence in and control over it will always be retained by the State that provides it. It is a fundamental part of that trust and confidentiality which lies at the heart of the relationship with foreign intelligence agencies”.
 

Our intelligence relationship with the United States is vital to the national security of the United Kingdom. It is essential that the ability of the United States to communicate such material in confidence to the UK is protected; without such confidence it will simply not share that material with us. The same applies to our intelligence relationships with all those who share intelligence information with us. What applies to them also applies to us. We share intelligence with a large number of countries. We do so to protect British citizens and on the basis that the material will not be put into the public domain against our wishes. To state the obvious, were our own classified information to be disclosed in such a way, it could compromise our work, our sources and our security.

It therefore was, and remains, my judgment that the disclosure of the intelligence documents at issue by order of our courts against the wishes of the US authorities would indeed cause real and significant damage to the national security and international relations of this country. For the record, the United States authorities did not threaten to “break off” intelligence co-operation with the UK. What the United States said—it appears in the open documents of this case—is that the disclosure of these documents by order of our courts would be,

“likely to result in serious damage to US national security and could harm existing intelligence information-sharing between our two governments”.

That is a simple affirmation of the facts of intelligence co-operation. It is worth noting that last night, in response to the High Court’s judgment, the US National Security Council reaffirmed the long-standing US position concerning the importance of protecting sensitive national security information and preserving the long-standing intelligence-sharing relationship between our two countries.

The court has concluded that there is no prejudice to Mr Mohamed’s case as a result of yesterday’s judgment. The information in question is available to his US legal counsel. As the court said,

“upholding the rule of law … is most unlikely to depend on making the information public”.

The issue at stake is not the content of the intelligence material but the principle at the heart of all intelligence relationships: that a country retains control of its intelligence information and that it cannot be disclosed by foreign authorities without its consent. That is a principle we neglect at our peril”.

My Lords, that concludes the Statement.

13:58:00

Baroness Neville-Jones
My Lords, I thank the Minister for repeating the Statement and I say with confidence that all sides of your Lordships’ House believe that no British Government should participate in or condone torture under any circumstances and that the due process of law should be upheld and followed in all cases. The case of Binyam Mohamed raises serious questions about both these principles. I want to ask the Minister about three things: first, Binyam Mohamed’s detention at Guantanamo Bay; secondly, the allegation that UK security and intelligence officials have been complicit in torture; and, finally, how these issues bear on our important intelligence relationship with the United States.

The Minister outlined the facts of Binyam Mohamed’s detention by US authorities and the case that they brought against him. All sides of your Lordships’ House support the new Administration’s decision to close the detention centre at Guantanamo Bay. Since August 2007, the Government have sought Mr Mohamed’s return to the UK. To date, the US has declined to release him. What is the basis for the request for his release and what was the basis for his return being denied? Can the Minister confirm whether the Government are still continuing to seek the return of Mr Binyam Mohamed? Also, in the light of the Administration’s decision to close the Guantanamo Bay detention facility, can he tell us if they have indicated whether they will now accede to the Government’s request? If the Government are still seeking the return of Mr Mohamed to this country, what assessment have they made about the threat to public security that his return could present?

Let me turn to the allegations that Binyam Mohamed had been subject to torture and cruel, inhuman and degrading treatment, and that security officials from this country were complicit in this. In August last year, a High Court ruling found that,

“by seeking to interview”,

Binyam Mohamed,

“in the circumstances described and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing”.

It also said that the security services had facilitated interviews with Binyam Mohamed “in the knowledge” of what had been reported to them about his treatment and conditions of detention. Yesterday’s ruling confirmed that, in the court’s view, Mr Mohamed had an arguable case that he had been subject to torture and cruel, inhuman and degrading treatment. As my right honourable friend the shadow Foreign Secretary said in another place, if such torture has occurred, it is absolutely wrong. I understand that the Government raised the allegations of torture with the US Government and asked them to investigate. Can the Minister say whether this investigation is complete and will he tell your Lordships’ House about the outcome?

In a letter dated 29 September last year to Mr David Lidington, the then Minister of State in the FCO, Dr Kim Howells, said that the Government rejected the allegation that security and intelligence officials from this country were complicit in torture. But given the anxieties displayed by the court on this very point, can the Minister confirm the definition of “complicity” in the Government’s language? The High Court ruling from last August contains an extract of a letter sent to a UK security official. The letter said that, as the detainee in question was,

“not within our custody or control, the law does not require you to intervene to prevent”,

treatment that is not in accordance with appropriate standards. That might legally be the case but, morally, should not the Government have made the strongest possible representations to the US about poor treatment? Were any such representations made?

How does the Government’s position that security and intelligence officials were not complicit in torture square with referring the matter of possible criminal wrongdoing to the Attorney-General? When does the Minister expect the Attorney-General’s investigations to be completed?

Finally, I should like to look briefly at the bearing that this has on the important intelligence relationship with the United States. The Minister is right to say that our intelligence relationship with the US is vital to our national security—no argument. He is also right to say that, by convention, the sensitive information of another country is not and should not be publicly disclosed without that country’s permission. This is well established practice.

On the basis of their understanding of statements made to them by FCO officials, in their High Court ruling the judges said 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”.

Can the Minister confirm that the US Government made such representations and related them to this case? The statement of the National Security Council in Washington, which was quoted by the Minister when he repeated the Statement, appears to me to be a restatement of the general position only.

When there is a suggestion of wrongdoing, we have to try to find a way through. It is also important that the public should have trust in the integrity of the UK/US intelligence relationship. So does the Minister accept that the Government must do everything in their power to enable the release of the information without prejudicing our relationship?

Yesterday the Prime Minister’s spokesman said that Downing Street had “not engaged” with the new Administration on the detail of the case. If that is correct, will the Minister say when such engagement will take place? Given the new Administration’s position on extraordinary rendition, Guantanamo Bay and torture, would it not be worth checking with the White House whether it cannot, in this important instance, help to find a way through by ordering release? Even if complete release would be prejudicial to national security, could at least some of the redacted details be made public by separating them from sensitive intelligence information, thus aiding the court?

14:07:00

Lord Wallace of Saltaire
My Lords, it is a great pleasure to follow the noble Baroness, Lady Neville-Jones, for the first time. I have had a professional relationship with her for a little less than 40 years and I have great respect for her judgment.

This is clearly an interim Statement; the saga will continue for some time. I think that we can look forward, not with an enormous amount of enjoyment, to the bits of information about extraordinary rendition that will slip out in one way or another, in Washington, London and elsewhere, over the next two or three years.

We on these Benches of course accept the importance of the US/UK intelligence relationship, the crucial element that mutual trust plays in that relationship and the importance of maintaining it. However, this seems an extraordinary circumstance in which the United States, in a hangover from the Bush Administration, appears to have pleaded national security from what I understand, if I have read the report of the judgment correctly—I tried to read through that lengthy document at some speed an hour ago—are just seven paragraphs providing the full details of the alleged torture and relating to the circumstances of Mr Mohamed’s detention and his treatment while he was held. I am quoting the BBC to some extent. That does not seem to me to be central to the national security of the United States or of Britain; it seems to be a matter of political embarrassment to the outgoing Administration.

Many of us listened to President Obama’s inauguration speech and heard him say:

“We reject as false the choice between our safety and our ideals”.
 

This is an area that we need to probe further. It is in the interests of the new US Administration to be as open as possible about the details of the alleged torture and the circumstances in which Mr Mohamed was held.

Like the noble Baroness, Lady Neville-Jones, I noted with some unease the phrase in the Statement “possible criminal wrongdoing” and the issue of UK complicity. I ask the Minister to assure us that the Government will continue to push vigorously to uncover the extent to which we have been engaged.

We on these Benches, as the Minister will know, are constantly uneasy about the extent to which Her Majesty’s Government approach relations between the United States and Britain from a perspective of dependence, asking the United States to give us what we want without recognising that we also have considerable assets to offer. Indeed, in the intelligence relationship, GCHQ is of value to the United States, and Menwith Hill is of considerable value.

Diego Garcia is also of very considerable value to US defence. I hope that the Minister will recognise that there is, of course, more to come out on Diego Garcia. We talk about the importance of maintaining trust and confidentiality. All the information that has come out on Diego Garcia has slipped out to the newspapers in Washington. It has, incidentally, undermined what Ministers have said in this House and another place on the non-use of Diego Garcia for extraordinary rendition. Can the Minister reassure us that, as more of this story continues to slip out, little by little, one way or another, the Government will ensure—as far as possible and within the terms of a continuing mutually assured intelligence relationship with the United States—that we do not compromise the rule of law and our commitment to our ideals?

14:11:00

Lord Malloch-Brown
My Lords, the noble Lord, Lord Wallace, observes that it is a privilege to follow the noble Baroness, Lady Neville-Jones. To respond to her is more of a challenge, as she is obviously expert in this area. I therefore attempt to respond to her with some humility and anxiety, since she knows far more about these issues than I do. I start with her first question, on Guantanamo. We continue to press for Mr Mohamed’s return from Guantanamo as vigorously as before and we very much hope that we will be successful. As to whether his return would be a threat to public security, I assure her that, as she well knows, the UK authorities would not do anything that was prejudicial to our national security.

The noble Baroness’s second question was whether UK agencies, or individuals in those agencies, were complicit in torture. Because of the ruling of the court last year, the Home Secretary felt that it was absolutely necessary to refer the matter to the Attorney-General to make sure that this had, indeed, been fully investigated and that the rights of both the individual and, more broadly, British freedoms and the rule of law had been fully respected in this case. Equally, because of that referral, the noble Baroness would not expect me to comment further on what the Attorney-General might recommend.

The noble Baroness refers to “complicity”. The Government are clear that this is not a matter of a wink and a nod or of turning the other way and somehow extracting information because torture is done by another hand. We are very clear about this: we do not participate in torture. We will get information through interview techniques, confident, we hope, that the individual being interviewed has not been subjected to torture. That is an absolute principle of our conduct. I do not want there to be a suggestion that, somehow, we are complicit in some sort of partial cover-up or attempt by the right hand to deny that it knows what the left hand is doing.

On the question of specific representations to the US, I reassure the noble Baroness that, across several exchanges at different levels between different officials on both sides, this has been discussed in intimate detail. We are not hiding behind some generic American reluctance to see intelligence published. This case has been discussed very specifically, most recently by the Foreign Secretary on Monday in Washington with the new Secretary of State. Similarly, the statement of the US National Security Council was very much in response to the specific findings of the High Court this week. It expressed gratitude to Her Majesty’s Government,

“for its continued commitment to protect sensitive national security information and preserve the long standing intelligence-sharing relationship that enables both countries to protect their citizens”.

I reassure the noble Baroness that we were not hiding behind generic official boilerplate. This is the very clear view of the US.

As to the complete release of the material, including redacted paragraphs, let me be clear that the lawyers have received full access to the material that they need. The material was subjected to a legal review and all material that was felt to be necessary was released to the defendant’s US lawyers. The only question is that of public release. On that point, because it is US material, it is for the US authorities and legal system to determine whether it should be released. As the noble Baroness and the noble Lord noted, the very different position of the incoming Administration is obviously relevant. It is very much their privilege, and within their rights, to change policy and release this material, but we cannot breach these rights and do so for them. That is something for the new Administration to do.

The noble Lord, Lord Wallace, notes that only seven paragraphs have been redacted and therefore wonders whether they are central to the case or amount only to political embarrassment. The public sharing of these paragraphs would certainly be viewed by our intelligence agency counterparts in Washington as a politicisation of intelligence, which is, in this regard, much the same as embarrassment. It is information that they own, which we would be sharing in a way that they felt was against their interests. I come back to the point that, if it is to be released, it should be a US decision, based on US courts and US government practice.

How quickly the Attorney-General will be able to proceed is a matter for her. As noble Lords know, Attorney-Generals are historically reluctant to comment until they have finished their review.

Finally, on the noble Lord’s point about Diego Garcia, we share his hope that there will be no more surprises on this. We sought and received clear assurances from the US Administration that there had been no further use of Diego Garcia beyond what had been debated in this House. Again, if that is not true, we will be the first to want to know.

14:18:00

Baroness D'Souza
My Lords, I thank the Minister for repeating this important Statement. It seems that the UK Government are effectively preventing Mr Binyam Mohamed accessing justice. I wonder whether the Government are proposing any alternative steps. For example, are the Government planning to compensate Mr Mohamed for his losses? Furthermore, in view of the now public knowledge that the UK intelligence authorities were unaware of the rendition of Mr Binyam Mohamed until well after the event, does the Minister agree that the 1944 Convention on International Civil Aviation, otherwise known as the Chicago Convention, should be examined with care and amended where necessary to pre-empt any future extraordinary rendition?

Lord Malloch-Brown
My Lords, I make it clear that while it is certainly within the rights of Mr Binyam Mohamed to seek legal redress for any disadvantage at which he feels that the UK has put him, we are not preventing him meeting his full rights. As I have said, the full dossier of what is relevant has been shared with his US lawyers, so he is not disadvantaged in any way. On the noble Baroness’s point about the Chicago Convention, I confess to her that I shall have to get back to her.

Baroness Ramsay of Cartvale
My Lords, does the Minister agree with me—I go straight to the main issue of the Statement, which is publishing American intelligence material without American permission—that there is an unbreakable rule, known by every intelligence officer, however junior or senior, that if service A receives material from service B, service A cannot pass it to anyone else without the express permission of the originating service, service B? In my day, it was called the third-party rule, and probably still is. It always came into play everywhere and anywhere it was relevant. Does the Minister agree that the importance of this rule should be obvious to everybody? It is the basis on which intelligence is able to be exchanged and passed to other services. It is not for anyone—not another service nor even learned judges—to make a judgment on whether the material deserves to be regarded as sensitive or protected. Only the originator of intelligence material knows its source details. Does the Minister agree that if British material was ever published or passed to anybody else without our express permission we would be very angry, feel very betrayed, and certainly review our relationship with the service that had let us down?

Lord Malloch-Brown
My Lords, my noble friend Lady Ramsay is another in this House who has enormous experience of these matters. She has described to us the essential Hippocratic oath of the intelligence-gathering profession: that we must protect our foreign sources and never breach their trust or betray them by releasing, of our own volition, information shared with us. It goes to the heart of the integrity of intelligence co-operation. That copyright of the originator of the intelligence is the central, cardinal principle of international intelligence co-operation. I suspect that many in this House would agree that we jeopardise a lot if we breach it. The noble Baroness pointed to the outrage that we would feel if a court of any one of our close allies was about to unleash or release British secrets to the public of that country in a way that embarrassed us and affected our future intelligence operations. We should put ourselves for a moment in those shoes to understand just how important this principle is.

Lord Goodhart
My Lords, some two or three years ago, the Appellate Committee of your Lordships' House ruled that, where a defendant claims that his confession should not be admitted as evidence because it had been obtained by torture in another country, the burden of the proof of torture rests on the defendant. Do the Government accept that, where it appears that evidence which may establish torture exists but has not been available to the United Kingdom court, the prosecution should be required to prove that the confession was not obtained by torture? That would be highly material if a prosecution of either Mr Mohamed or anybody else in a similar position was contemplated in the United Kingdom.

Lord Malloch-Brown
My Lords, I reassure the noble Lord that all material, including the material covering the circumstances in which evidence was taken from Mr Mohamed, has been shared with his lawyers. Those lawyers do not have a hand tied behind their back, nor is the information available to them in any way limited. The sole issue is whether the information should be released beyond the lawyers to the public at large.

Lord Hylton
My Lords, can the Minister confirm that Mr Mohamed is still at Guantanamo? I ask this because the Statement mentioned the United States federal courts, so he could be somewhere else. As to the Attorney-General, whose presence we all welcome, can the Minister confirm that her conclusions will be published as soon as possible? Does he agree that Guantanamo is only the tip of the iceberg of a far greater amount around the world of detention without trial? We in this House argue whether there should be detention of 14 or 28 days or some other figure, but many of the people concerned have been held for several years. That cannot be helpful to democracy or the defence of the rule of law.

Lord Malloch-Brown
My Lords, I assure the noble Lord that the prisoner is still detained at Guantanamo. He has exercised his rights to appeal to the federal system, which is probably why the confusion has arisen. We are pressing strongly for his return to the UK. We were able to make a consular visit to him last year. The broader issues of detention, habeas corpus and the rule of law arise. It is a global problem, and it is why we all commend what President Obama has done to begin the process of putting the US back in the vanguard of those countries which fight for the right of habeas corpus and the rule of law around the world.

Lord Ryder of Wensum
My Lords, do the Government deny awareness as well as complicity?

Lord Malloch-Brown
My Lords, the noble Lord is passing words. We have made it clear that the information around this case became available to us only from 2007. In that sense, there was a period when we were speaking without full information being to hand. We have acknowledged that to this House in the past. Without wanting to go too deeply into the details, I again make it clear that the case of the intelligence services is that, if any interviews of the defendant took place, they did so under circumstances where our services were utterly unaware that torture might have taken place.

Baroness Manningham-Buller
My Lords, I declare the obvious interest that I was director-general of the Security Service at the time when some of the events of this case occurred. However, it would be wrong of me to speak of that in this House, not only because of the Attorney-General’s work but also because I have no access to the papers and cannot remind myself of the details and chronology of this case. However, all those details were shared by me and, I believe, my successor with the parliamentary Intelligence and Security Committee.

I shall make three points not directly related to this case as background. The first is to endorse the comments of the noble Baroness, Lady Ramsay, about the third-country rule. I sympathise with those who think that rules are there to be challenged and checked for continuing validity. However, it is pretty well impractical always to check whether something has been derived from torture unless you have reason to suspect it at the beginning. Literally thousands of pieces of intelligence are shared daily between the UK, our allies and people who might not so reasonably be described as our allies. That intelligence would dry up if we did not honour the third-country rule. Not all other counties honour it; in that case, we deny them our intelligence. The second—

Baroness Finlay of Llandaff
You have to ask a question.

Baroness Manningham-Buller
My Lords, I am being reminded that I have to ask a question. I hope that the Minister will be able to confirm my comment on the amount of material that is going around the place and the impracticality of checking each bit for torture. I apologise to the House for not getting these things quite in the right order.

Lord Malloch-Brown
My Lords, it must be a source of great comfort to this House that the noble Baroness was involved in some of the earlier decisions about information going to the appropriate UK institutions. She has already in her short time in this House demonstrated her commitment to the rule of law and to, above all else, not detaining prisoners for the wrong reasons without the right legal basis to do so. Our intelligence services have in recent years always been in the hands of individuals who very much understand the obligations and values under which they are expected to operate.

Fortunately, this Minister does not have to see the several thousand pieces of intelligence that move each day, and always has a suspicion that some are of better quality than others. However, I equally agree with the noble Baroness that any breach of the third-country rule risks drying up that stream in a way that would seriously jeopardise British national interests.

Lord Dubs
My Lords, I welcome Her Majesty's Government’s continued commitment to oppose torture in all its forms. I ask my noble friend two questions. First, when did we last approach the American Administration—not the security services but the Administration—about whether they would be prepared to release this information or allow us to do so? I ask that because, of course, there has been a complete change of heart on torture and Guantanamo since President Obama took office. Whereas approaching the security services in the United States may give us the same answer as we got under Bush, I wonder whether approaching the American Administration might not give us a more positive answer now. Secondly, is the issue about whether Mr Mohamed has been tortured—and, therefore there are fewer security implications as regards the fact, even while there is political embarrassment—or about the whole raft of evidence against him?

Lord Malloch-Brown
My Lords, the most recent direct contact at the political level was this week between the Foreign Secretary and the Secretary of State. There is no lack of understanding at the highest reaches of the new Administration of this case and the issues that it raises. Again, however, the decision must rest with the new Administration on whether they choose that it is in the American public interest to make that information available. We cannot breach the third-country rule and make that decision for them. On the issues of concern about the withheld information, I really do not think that it is appropriate for me to comment. I hope that noble Lords will understand why.

Lord Hurd of Westwell
My Lords, will the Minister clarify one point? Nobody as I have heard it has suggested that we should breach the third-country rule; its importance has been emphasised in the most authoritative way. Would he confirm, however, that there would be no breach of the rule, or breach of convention or practice, if Her Majesty's Government in confidence expressed to the United States Government their view about publication of material which they, as the Minister confirmed, have themselves seen in confidence?

Lord Malloch-Brown
My Lords, I absolutely confirm that there would be no reason why we would not do so. Indeed, it would be completely consistent with our position. Again, the decision lies in their hands. Just as we pressed for the release to us of Mr Binyam Mohamed, in the same way we think this case would be served by as much release of information as possible.