“Drop it”, ministers strongly advised, as I sensed the government was not coming clean about their role in “extraordinary rendition”, the US practice of secretly transferring terror suspects to places where they were likely to be tortured.  It was the familiar attempt to smother an embarrassing tale, a practice at which New Labour and its spin doctors were particularly adept. The first indications from the Con-Lib coalition are that it intends to unearth its predecessor’s activities. William Hague, the foreign secretary, has delivered what he promised before the general election — a judge-led inquiry into allegations of complicity in torture.

What was astonishing was the lengths to which ministers and officials went to cover up their activities. As they persisted in a shameless pursuit of secrecy, they blamed journalists and conspiracy theorists, fed, they claimed, by human rights groups and misguided lawyers, for not letting go.

The determination of the Blair and Brown administrations, which in their very early days promised a new era of openness, to suppress information was more than an instinctive bureaucratic reaction by those simply enjoying power and wanting as quiet a life as possible. Ministers, and Blair in particular, adopted an extraordinarily cavalier attitude to the rule of law, and to constitutional and democratic principles.

The government was quick to use the Official Secrets Act for political reasons. In 2007, David Keogh, a Cabinet Office official, and Leo O’Connor, former researcher to a Labour MP, were convicted after an Old Bailey trial, partly heard behind closed doors, in a move that stopped the public finding out whether George Bush proposed to Blair at a meeting about Iraq in Washington in April 2004 what would have been a war crime and how Blair reacted.

The evidence the government suppressed was an official record of the Washington meeting when the situation in Iraq was deteriorating fast. The leaked memo is reported to have referred to Bush’s alleged proposal to bomb the Arabic TV channel al Jazeera and, ironically, to have revealed how far Blair went in criticising US military tactics when its forces were assaulting the Iraqi town of Falluja.

Before the trial, Margaret Beckett, then foreign secretary, made it clear embarrassment was the real issue at stake. She signed a Public Interest Immunity (PII) certificate claiming the disclosure of the document would have a “serious negative impact” on UK-US diplomatic relations. “The ultimate consequence”, she claimed, “would be a substantial risk of harm to national security.” Such a claim, implying that good relations with Washington were more important than upholding the rule of law or standards of morality, was echoed precisely by David Miliband, Beckett’s successor, in the Binyam Mohamed case.

Strikingly, and to the government’s chagrin, it was not Parliament but the courts, and the country’s most senior judges, who have proved the most effective enemies of secrecy. For 18 months, David Miliband, the foreign secretary, egged on by MI5 and MI6, dismissed increasingly angry warnings by the high court about the implications, notably for the rule of law, about the government’s determined attempt to suppress evidence of British complicity in the torture of terror suspects.

Bit by bit, more and more evidence emerged of MI5’s involvement in the unlawful treatment of Binyam Mohamed. A British resident of Ethiopian descent, he was arrested in Karachi in 2002 with a false passport. Held incognito, he was interrogated by an MI5 officer, known only as Witness B. He was subsequently secretly rendered to Morocco, where he was brutally tortured, then rendered to the notorious “black” prison at Bagram in Afghanistan before being flown to Guantanamo Bay. MI5 officers willingly provided information and photographs to the CIA about what they knew of Mohamed’s past even though the US authorities refused to tell MI5 where the prisoner was being held.

In six separate damning judgments, Lord Justice Thomas and Mr Justice Lloyd Jones observed that the relationship of the UK to the US in connection with Mohamed “was far beyond that of a bystander or witness to the alleged wrongdoing”. The government and its lawyers relied on the tired old argument, to which English courts have traditionally deferred, whereby claims by ministers that secrecy is needed on the grounds of national security cannot be challenged.

The long-held assumption has been that when the executive flies the flag of “national security”, the courts, Parliament, the media, must immediately genuflect. In the Binyam Mohamed case, it was the courts – and not Parliament – which broke that taboo. “The suppression of reports of wrong- doing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law”, Thomas and Lloyd Jones insisted. “Championing the rule of law, not subordinating it, is the cornerstone of democracy.”

In particular, in a judgment last October, they ordered the release of a seven-paragraph summary of a CIA report showing what MI5 knew of Mohamed’s “cruel, inhuman and degrading treatment“. They dismissed Miliband’s claims that disclosing CIA evidence of unlawful treatment would harm national security and threaten the UK’s vital intelligence-sharing arrangements with the US.

“Of itself”, said the judges, “the treatment to which Mr Mohamed was subjected could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or ‘a summary of classified intelligence’.” What the seven paragraphs revealed was “admissions of what officials of the US did to BM [Mohamed] during his detention in Pakistan”.

They added: “It was impossible to believe that President Obama would take action against the United Kingdom” if the summary of CIA material was disclosed. Publication was “necessary to uphold the rule of law and democratic accountability”, the judges continued. “In our view”, they said, “as a court in the United Kingdom, a vital public interest requires, for reasons of accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.”

Would Obama really “curtail the supply of information to the United States’ oldest ally when what was put into the public domain was not intelligence?”, they asked rhetorically. There was no “rational basis”, they said, for claims made by Miliband and Hillary Clinton, the US secretary of state, that disclosure would affect the supply of US intelligence to the UK and put British lives at risk. Miliband’s case was irrational because it was “logically incoherent”.

Moreover, it transpired that the British government and their lawyers were trying to suppress information that had already been released by the Obama administration, notably his decision to publish CIA memos on interrogation techniques. One document Miliband eventually agreed could be disclosed referred to a memo from Jay Bybee, former US assistant attorney general, to John Rizzo, acting CIA general counsel, which, the judges said, “made clear that the techniques described were those employed against Mr Zubaydah, alleged to be a high-ranking member of al Qaida”. Another document which the British government insisted had to remain secret consisted of a “verbatim quote” from a memo made public in the US seven months previously.

When, to the government’s dismay, the appeal court, consisting of three of the country’s top judges, also dismissed Miliband’s argument in a devastating ruling in February, it did so partly because of what had been revealed already in the US courts – namely, evidence about Mohamed’s torture an American judge accepted as true. If any doubts remained, the Lord Chief Justice, Lord Judge, the Master of the Rolls, Lord Neuberger, and the President of the Queen’s Bench division of the high court, Sir Anthony May, made it clear that what Miliband wanted to suppress was not only involvement in unlawful activities but attempts to lie about it.

A passage written by Neuberger (and toned down at the request of Miliband’s counsel, Jonathan Sumption QC) refers to MI5’s denial that it “knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government”. Neuberger continued: “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.”

Some security officials “appear to have dubious records when it comes to human rights and coercive techniques”, Neuberger added. There was reason to “distrust” the advice and information of the security services when it came to Mohamed’s mistreatment. This in turn, Neuberger added, raised the whole question of whether statements in public interest immunity (PII) certificates – gagging requests to the court – signed by ministers on the basis of advice from the security and intelligence agencies could be relied on as being accurate. “The Security Services have an interest in the suppression of such information”, noted the appeal court referring to knowledge of torture and inhuman treatment.

In a key passage, the judges stated: “In principle, a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice when it concerned UK knowledge of unlawful interrogation techniques used by US officials”. They also rejected Miliband’s claim that the “control principle” applied, whereby only the provider of intelligence could release it, not the receiver of it, whatever the circumstances. The principle could not be applied, they said, if it concealed that “those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture”.

While the government and its security and intelligence agencies were publicly insisting that it abhorred torture and the abuse of prisoners, privately they were complicit in it. The Mohamed case showed that this was not on the grounds that in the fight against international terrorism they had to cooperate with countries and agencies which did not share the same “standards” as Britain – an explanation they now deploy. No, Miliband defended his actions and those of his officials not out of any conviction, however misguided, or even for pragmatic reasons, but ultimately because he did not want to upset the US government. This was the case even though Washington had severely embarrassed the British government, to put it no higher than this, by not informing it of the use of Diego Garcia, the US air base on the British Indian Ocean Territory, for secret CIA rendition flights, or the whereabouts and torture of terror suspects, including Binyam Mohamed and – as Baroness Manningham-Buller, the former head of MI5 recently complained – Khalid Sheikh Mohammed, the alleged mastermind of the 11 September 2001 attacks on the US. Questions remain about what ministers, including Tony Blair, privately knew of the activities of American security and intelligence officers, who in the Bush administration sanctioned them, and what his own attitude was.

That the government secretly tried to suppress what it knew about CIA “torture flights” was made clear as early as 2005 with the leak of a note from Irfan Siddiq, a member of then Foreign Secretary Jack Straw’s private office, to Grace Cassy in Tony Blair’s office, drawn up in response to a Downing Street request for advice “on substance and handling” of the controversy over CIA rendition flights and allegations of Britain’s connivance in them. “We should try to avoid getting drawn on detail”, Siddiq warned, “and try to move the debate on, in as front foot a way as we can, underlining all the time the strong anti-terrorist rationale for close cooperation with the US, within our legal obligations.”

After referring to a statement by Condoleezza Rice, Bush’s secretary of state, that, “where appropriate”, the US would seek assurances before transporting suspects to countries where they risked being tortured, the Foreign Office noted: “We would not want to cast doubt on the principle of such government-to-government assurances, not least given our own attempts to secure these from countries to which we wish to deport their nationals suspected of involvement in terrorism: Algeria etc.” In April, Amnesty International singled out the UK among European countries striking “no torture” deals with foreign countries as a means to deport people it labels a threat to national security.

Less than two years after he came to power in 1997, Blair repeatedly intervened in an attempt to deport asylum seekers to Egypt, despite being told that they might be tortured and sentenced to death. Court documents showed how he tried to get Egypt to give assurances that the men would cooperate with countries and agencies which did not share the same “standards” as Britain – an explanation they now deploy.

Warned that there was “ample evidence from a range of sources of serious human rights abuses in Egypt” and that there was “little scope for pushing deportations any further”, he replied: “This is crazy. Why can’t we press on?” Told that no assurances were forthcoming, Blair wrote: “This is a bit much. Why do we need all these things?” All this may help to make The Ghost Writer, directed by Roman Polanski and based on Robert Harris’s political thriller about the memoirs of a prime minister threatened with war crime charges, particularly piquant.

Guidance given to MI5, MI6 and military intelligence officers interrogating detainees abroad remains secret at the time this article was going to press. In March last year, Gordon Brown responded to growing evidence of British collusion in the torture and abuse of detainees abroad by promising to give the parliamentary Intelligence and Security Committee (the ISC) new guidelines on interrogation. Eight months later, the ISC were given them – in a form, noted officials, “in which they could be published”.

A year later, the ISC sent Downing Street its criticisms of the guidelines. The prime minister’s office, which vets ISC reports and decides how and when they can be published, suppressed them until after the general election. Stung by criticism of its ineffectiveness by both the courts and the media, MPs on the committee directed their fire at their critics rather than the security and intelligence agencies they are supposed to hold to account.

One of the tools successive governments have relied on to suppress information in court cases is the PII (public interest immunity) certificates. They are signed by ministers and are meant to alert judges to the damage to national security, or threat to individuals or the administration of justice, if sensitive information is released. That is their proper function. As independent lawyers argued in the Binyam Mohamed case, PII is not supposed to be invoked “to prevent disclosure of evidence of serious criminal misconduct by officials of the United Kingdom”. If PII certificates are upheld by the judge, then the information or evidence referred to or contained in them cannot be used by either the prosecution or the defence in a subsequent trial.

Special procedures are now in place governing the proceedings of the Special Immigration Appeals Commission (SIAC) set up to hear challengesto Home Office decisions to deport or exclude someone from Britain. Special Advocates, suitably vetted, are appointed on behalf of the defendants to have sight of information gathered by the intelligence agencies. But they cannot pass this on to lawyers representing the defendants, let alone the defendants themselves.

The Brown government wanted to extend this way of suppressing information for the first time to civil cases. Pressed by MI5 and MI6, ministers argued it should be introduced so that seven British residents incarcerated in Guantanamo Bay, or their lawyers, will not have access to what the security and intelligence agencies describe as “secret government information” – a reference to what British officials knew about the prisoners’ ill-treatment. The seven – Binyam Mohamed, Bisher al- Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes, Moazzam Begg and Martin Mubanga – are suing MI5 and MI6, and the home and foreign secretaries, for unlawful acts, negligence and conspiracy. In a further devastating judgment, the appeal court said this attempt to suppress evidence in a civil trial undermined deep- seated principles of common law and open justice. One of those principles, ruled Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan was that “trials should be conducted in public, and the judgements should be given in public”. The judges ruled: “In our view the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim such as a claim for damages for tort or breach of statutory duty.” They added: “Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that is applicable only in exceptional circumstances nonetheless often becomes common practice.”

The determination to suppress information on the grounds of national security has been extended to military operations in Iraq. Senior judges last year accused the Ministry of Defence of “lamentable” conduct over attempts to suppress information on the interrogation of Iraqi detainees held by British troops in Camp Abu Naji, an army base in Amara, north of Basra, after a fierce battle in 2004. The high court described the MoD’s handling of the case, including false claims made in PII certificates, as “truly alarming”. Perhaps we have witnessed the nadir in the pursuit of official secrecy in the name of security. It was a theme pursued with special vigour by Tony Blair after all.

During their post-election negotiations, the Liberal Democrats and David Cameron’s Conservatives cited civil liberties as an area they could agree on. They had both called for an independent judicial inquiry into complicity in the abuse and torture of terror suspects. Now David Cameron has announced a judicial inquiry, though its scope and how much of it will be held in public or behind closed doors remains unclear. Given the mounting evidence, it is difficult to see how the new government could have continued as if nothing happened.

This article appears in Radio Redux, the new issue of Index on Censorship, out now. It has been updated for the web to reflect developments in the time since the magazine went to print.

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The paragraph reveals the Master of the Rolls, Lord Neuberger’s opinion that members of the security services had a “dubious record” on torture.
The court emphasised that it had at no point been coerced by the government, pointing to the fact that at all stages of the case, judges had rejected attempts by the Foreign Office to claim that evidence should be concealed.

The full text of paragraph 168 reads:

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 Mohammed 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 court also ordered that Mohamed’s legal costs be paid by the Foreign Office.

“[Binyam Mohamed’s] trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The [US] Government does not dispute this evidence.”

So the Court of Appeal, quoting US federal judge Gladys Kessler, described what is now accepted fact: Binyam Mohamed was tortured at the hands of America and its proxies, the Pakistanis and the Moroccans.

At issue before the Court of Appeal on Wednesday was whether seven paragraphs excised from the original High Court judgment should be restored — a few sentences that were notable mainly because they indicated British complicity in the crimes.

Foreign Secretary David Miliband took to the airwaves forcefully to proclaim his good faith: the government was firmly against torture, he said, and had worked long and hard to achieve justice for Mohamed. Yet it is worth casting back two years ago, when the case began. I met his team then, and I told them that they should help us defend Binyam. If the government refused, I said, they would lose in court, for justice was on our side.

I don’t suppose a minister should feel bound to take my legal advice, given Jack Straw’s cavalier attitude to scholars of far greater gravitas. So we sued. Did they then accept that there was justice in our cause? Not a bit of it. As the Court of Appeals reminds us, the Foreign Secretary announced that our claim was “unarguable”, and the allegation “that the UK government has been ‘mixed up‘ in the alleged wrongdoing (by USA authorities) was ‘untrue’. He said that ‘no department or agency of the UK government was involved in the [Binyam’s] alleged torture in Morocco and Afghanistan. Nor ha[d] the UK government done anything to facilitate [him] being subjected to torture.”

The court, as the judgement noted with typical understatement, “reached conclusions adverse to the UK services on the issue.” In plain English, the government’s defence had been a false one.

Did the Foreign Secretary learn his lesson? No. To give credit where it is due, the government provided some exculpatory evidence to us for use in the secret American system, but Miliband has fought tooth and nail for two years to keep the material from the British public. His nose bloodied at each turn, this week he was still taking the position that evidence of torture should be suppressed, even though we had since persuaded an American judge to publish it.

By now, the appeal judges wrote, his position was bizarre: “the Foreign Secretary’s case is now based on ‘a principle entirely devoid of factual content on which to hang it’.”

“Indeed,” wrote one judge “it seems to me to be logically insupportable and therefore irrational.”

A second judge suggested that Miliband was now “being inconsistent with common sense.”

So, one might think, the judges’ verdict was a victory for good sense. Yet there are troubling aspects of the litigation. There is a “vast body” of secret material that remains under wraps. I have seen much of it, and while I am bound by law not to reveal classified evidence, the judges have made clear that the infamous seven paragraphs comprise only the crumbs of the conspiracy.

We must remember what we are tussling over: proof that the British and Americans committed the international crime of torture. How can anyone possibly argue that it should remain classified?

And in this battle, the government takes a troubling attitude towards the courts. Miliband argues that “the court should not operate as a sort of general guardian of the public interest….” Presumably he believes that the government is best placed to play this role. Indeed, Miliband filed three “Public Interest Immunity” certificates assuring us that it was not in our interest to know the facts.

Torture is unspeakable; yet allowing torture to remain secret is still worse. The conflation of national security with political embarrassment is the hallmark both of this case and of this government. Our challenge is to pierce the veil of secrecy. This judgement was a small victory, but the true struggle lies ahead.

Clive Stafford Smith is the director of Reprieve, the UK legal action charity that uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay and the secret prisons beyond.

Every time I reassure myself that this government cannot sink lower, it surprises me.

The attempt by the Foreign Office to suppress evidence that the British security services colluded in the torture of at least one detainee is a stain on our public life.

For months David Miliband has tried every trick in the book to try to suppress a court judgment which condemns the UK for its ‘cruel, inhuman and degrading’ behaviour towards Binyam Mohamed.

Miliband was not acting alone. Egged on by Downing Street, officials at the Foreign Office and the leadership of MI5 and MI6, desperate to keep their dirty secrets out of the public eye, he repeatedly went to the courts to try to keep the information secret.

Initially, Miliband argued that release of the torture trail would damage Anglo-American relations, of which intelligence sharing is a crucial part.

The only problem with this argument is that the Obama administration said it had no problem with releasing the evidence. The British then went behind the scenes and begged the Americans to forget this line of defence and insist that, after all, it would have grave repercussions for the ‘special relationship’.

It is a testament to the zeal of several senior lawyers that Miliband was eventually defeated yesterday in a Court of Appeal decision which could have major repercussions for Britain’s beleaguered culture of free speech.

Now, at last, we know the truth, or at least most of it. The seven key paragraphs that Miliband demanded be taken out of an original High Court judgment in August 2008 make for damning reading.

Mohamed was ‘intentionally subjected to continuous sleep deprivation’, it says, before adding chillingly: ‘The effects of the sleep deprivation were carefully observed.’

This evidence leaves a terrible taste in the mouth. The prisoner was kept under suicide watch, such was the ‘significant mental stress and suffering’ that he was undergoing.

The court implied – without actually feeling able to say it in black and white – that the connivance of British agents in the Americans’ violent practices contravened the UN Convention on Torture which the UK signed in 1984. This expressly bans sensory deprivation, hooding and other stress techniques.

Some people argue that the ends justify the means. Just as America came under attack on September 11, 2001, so Britain, too, should do whatever it takes to keep the terrorists at bay.

Yet when Tony Blair declared, after our own attacks on July 7, 2005, that ‘the rules of the game have changed’, did that really mean helping the Americans – or any government for that matter – employ torture tactics of which dictators would be proud?

Instead of holding their hands up and apologising profusely on behalf of the Government, both for the original actions of the MI5 and MI6 agents, and for the attempted cover-up, David Miliband and his aides were at it again this week.

On Monday night, the Government’s QC, Jonathan Sumption, wrote to the Master of the Rolls, Lord Neuberger, urging him to delete from yesterday’s final judgment one paragraph which was particularly revealing about British participation in torture.

In an astonishing action which tramples on 400 years of legal custom that guarantees all sides are given due notification of any request, Mr Sumption failed to inform the other legal parties.

Amid fury from the other legal representatives, this led a somewhat embarrassed Lord Neuberger to admit that he had been ‘over-hasty’ in acceding to this latest attempt at censorship.

He has asked all parties, including my campaigning organisation, Index on Censorship (which was one of the original parties seeking publication), to submit our complaints by tomorrow. It is possible that this further evidence will be published then.

We know its gist already, as the court ruled that Mr Sumption’s letter could be published. It says the paragraph that was being withheld is ‘likely to receive more public attention than any other parts of the judgments’.

In other words, it is even more damning. It talks about the previous ‘form’ of the security services, presumably a deeply worrying reference to a history of connivance in, or participation in, torture.

To cap it all, it says officials of the services ‘deliberately misled’ the all-party parliamentary Intelligence and Security Committee, reflecting a broader ‘culture of suppression in its dealings with the Committee’.

A more devastating verdict would be hard to find. A more disreputable set of actions would be hard to identify, and this from a government which proclaims it is a leader in human rights around the world.

David Miliband attempted to put a brave face on the humiliation. In a statement to the Commons yesterday, he said the most important aspect of the judgment was that it had upheld the ‘control principle’ of intelligence sharing.

Depressingly, Shadow Foreign Secretary William Hague echoed the sentiment. He expressed concern about Mohamed’s treatment and the time it took to resolve the issue, but his tone suggested that an incoming Conservative government would be equally likely to put underhand practice ahead of civilised behaviour and free expression.

If so, the Conservatives would destroy in one fell swoop the credibility they have been seeking to build up on issues of good government and propriety.

This latest court ruling, whatever the last-minute caveats, is a major victory for free speech and civil liberties. A government and Whitehall culture which lives off threats and secrecy has been dealt a blow.

Once the details of this case recede into history, the line in the Court of Appeal’s judgment which is likely to have the most profound effect is this: ‘(In) principle, a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice.’

John Kampfner is Chief Executive of Index on Censorship

Miliband forced to reveal secret torture evidence in Binyam Mohamed case. Index on Censorship party to key test of open justice

Index on Censorship today hails a major victory for free expression and open justice in the UK, after the Lord Chief Justice dismissed an appeal by David Miliband seeking to conceal evidence of the torture of “war on terror” detainee Binyam Mohamed.

Index was one of several organisations party to the case, demanding the release of the materials.

In a rare ruling against the government, Lord Judge ruled that several paragraphs detailing Mohamed’s treatment in secret jails should be disclosed. The Foreign Office had claimed that revealing the suppressed details of Mohamed’s torture would endanger intelligence sharing with the US and threaten national security.

But the lengthy Court of Appeals judgement stated: “[In] principle, a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice…”

The seven redacted paragraphs describe how Mohamed was shackled during interrogation, subjected to sleep deprivation and suffered severe mental stress.

One of the paragraphs the Foreign Office attempted to conceal stated:

“The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment of BM by the United States authorities.”

John Kampfner, chief executive of Index on Censorship, commented: “The Foreign Office’s secrecy and obfuscation on this vital issue has only heightened the suspicion that Britain’s security services were complicit in the torture of a UK resident. David Miliband must now reveal the extent to which he and the cabinet were aware of this scandal.”

He added: >”National security should not be used as an excuse to censor material that is clearly in the public interest.”

Last December declassified documents revealed that the US district court considered there was credible evidence to suggest that Mohamed was tortured while being held at the request of the US in Morocco and Pakistan .

Judge Gladys Kessler’s opinion states: “Binyam Mohamed’s trauma lasted two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in plots to imperil Americans. The [US] government does not dispute this evidence.”

Read the redacted paragraphs here

(iv)    It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 as part of a new strategy designed by an expert interviewer.

(v)    It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

(vi)    It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

(vii)    It was reported that the stress brought about by these deliberate tactice was increased by him being shackled during his interviews;

(viii)    It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

(ix)    We regret to have concluded that the reports provided to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

(x)    The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment of BM by the United States authorities.

In an unprecedented judgment, Lord Justice Thomas and Mr Justice Lloyd Jones ordered the release of a summary of communications between the CIA and British security officials. Index on Censorship, along with other media organisations, was a party to the claim for the release of the documents by former Guantanamo detainee Binyam Mohamed.

It is understood that the Foreign Office will appeal the judgement, which means that the documents may not yet be released.

A key secret service employee, Witness B, was also shown to have visited Morocco on three occasions while Mohamed was detained there. Witness B and his employers maintain that he did not know Mohamed was in Morocco at the time.

Index on Censorship, along with US and UK media, is seeking the discloure of materials concerning Binyam Mohamed’s treatment in detention.

Read the full revised judgment here

In a letter to the judges presiding over the case, Lord Justice Thomas and Mr Justice Lloyd Jones, the Treasury Solicitor has claimed that a Public Interest Immunity certificate could be necessary for any further evidence submitted by the Foreign Secretary, David Miliband. This would allow the Foreign Office to supply evidence to the court in secret, on a basis not open to challenge or scrutiny.

The government is fighting an application by international media organisations, including Index on Censorship, to obtain the release of seven paragraphs that were redacted from an earlier judgment concerning Mohamed’s treatment at the hands of US officials. The Foreign Office had claimed that any release would endanger future intelligence-sharing arrangements with the US, a claim Mohamed’s lawyer, Dinah Rose QC, has described as ‘seriously misleading’.

Read the government letter here (pdf)