This article was originally published in the Daily Mail
Every time I reassure myself that this government cannot sink lower, it surprises me.
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.
Binyam Mohamed seen arriving back in Britain in February 2009
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.
Government QC Jonathan Sumption has written to Master of the Rolls Lord Neuberger
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