The shame of secrecy
06 Feb 09

binyam_mohamedThe case of Binyam Mohamed (right) underlines the need for transparency in the justice system, even during a ‘war on terror’, writes Aisha Maniar

Last summer, solicitors acting on behalf of Binyan Mohamed brought a lawsuit at the High Court in London to force the government to disclose information it has in its possession about his whereabouts between 2002 and 2004, when he alleges he was held in Morocco for 18 months and horrifically tortured. This was after his lawyers were unable to get the American authorities to release these same documents; the alleged torture in Morocco then formed the basis for the ‘evidence’ for his military tribunal.

Mohamed has faced three sets of charges at Guantánamo Bay over the past four years; each time the charges were dropped. In October last year, the last set of charges was dropped after the prosecutor resigned in protest.

In the 4 February judgment (pdf), not only did the High Court judges state that the US may cease to share intelligence with the UK, threatening our national security, if these documents were made public, but that, although the position of the American government on the use of torture has changed considerably since the inauguration of President Obama, ‘We have […] been informed by counsel for the foreign secretary that the position has not changed’ (paragraph 78). The following day in the House of Commons, the foreign secretary played down claims of an American threat and conceded that the new administration had not actually been asked if it held a different position. In view of these admissions, aimed more perhaps at hiding British involvement in torture than protecting national security, the solicitors for Binyam Mohamed have applied to the High Court for the case to be reopened, and the parliamentary Intelligence and Security Committee has been asked to reinvestigate Britain’s role in his rendition. It had earlier concluded that the UK had no role to play.

Many of the hearings were held in closed session, due to the secret nature of the evidence. Hearings in closed session are not at all uncommon: ‘terror’ suspects subject to the Special Immigration Appeals Commission (SIAC) and the Proscribed Organisations Appeals Commission (POAC) regularly have evidence withheld from them and their counsel in the interest of national security. The evidence against them is never made known.

Secrecy has no part to play in the running of any healthy democracy.

President Obama has pledged his commitment to closing Guantánamo Bay and the CIA’s network of secret prisons, and to ending the use of torture. He has also recognised the rule of law and human rights as essential ingredients of democracy. In a recent article in the Guardian, David Miliband asserted his commitment to these principles too, calling the rule of law ‘the cornerstone of the democratic society’. Transparency and accountability are also fundamentals of a healthy democracy and the British public is entitled to know what role its government may be playing in wrongdoing and illegality at home and abroad. Indeed, in November, as a means of getting information disclosed, the High Court invited the media to make submissions to the court requesting the information be released in the public interest.

The High Court judgment has given the Obama administration and the Foreign Office an opportunity to show their commitment to democracy and the rule of law. Hiding behind one another and national security to conceal complicity in rendition and torture only ensures impunity for those involved. The UK has already admitted to involvement in the CIA’s extraordinary rendition programme and must commit to transparency regarding its full involvement in all such actions. The use of secret evidence, secret torture and secret hearings leads us down a slippery slope — and this is not in line with the ideals Obama and Miliband have so recently supported.

Aisha Maniar works for the London Guantánamo Campaign