UK spooks forced to hand Gitmo files to suspect's lawyers
Dirty bombs, dirty hands for MI5
Meanwhile, US military prosecutors attempted to try Mohamed in front of a Guantánamo tribunal late in 2005. However, the US Supreme Court ruled that these military trials were illegal in June 2006, taking the case against Mohamed back to square one. A new US law was passed setting up a new regime for military trials at Guantánamo, and Mohamed now faces one of these. The most serious charge he faces is still that of plotting a dirty-bomb outrage in the States, and he has given signed confessions to that effect. He could face the death penalty.
A lot of telegrams and letters went back and forth between the US and Britain relating to Mohamed's case and those of other sometime British residents and citizens. The UK eventually succeeded in persuading America to hand over most of the people concerned, but the US authorities were obdurate in the case of Mohamed.
In August 2007 the United Kingdom Government requested the United States Government to return BM and others to the United Kingdom; the others were returned but BM was not. Efforts on behalf of the United Kingdom Government to have BM returned continue.
Mohamed's only defence is that he was tortured, a thing which would make all his confessions inadmissible - even before a Guantánamo tribunal. However, the US government refuses to provide Mohamed's London lawyers with any information whatever regarding where Mohamed was or what happened to him from 2002 to 2004. But they have been slightly more willing to talk to the British government, in particular to deny any evidence of the Moroccan genital torture alleged by Mohamed.
The Foreign and Commonwealth Office disclosed a... medical record received by the United Kingdom Government from the United States authorities at Guantanamo Bay. That document is from the Senior Medical Officer dated 24 January 2008. It stated that BM arrived in Guantanamo Bay in fair health... the Foreign Office also stated that the United States Government had informed them that there was no evidence to support the claim that BM's genitalia had been brutalised; nothing abnormal about his genitalia was noted in any his medical records and no scarring had been identified.
Mohamed's lawyers in London believe that the British secret services have other evidence which could help show what happened to him, accumulated during the lengthy correspondence between British and US officials in the case. The lawyers believe this because the British government admits it has some such evidence, but refuses to hand it over on "national security" grounds. As the Foreign Office said to the British lawyers:
All the various branches of the Government have recently undertaken a further review of the material held on their files. In the course of this review, some limited additional material was discovered. While this material may not have a bearing on the charges preferred against [Mohamed], and may not be definitive, it is possible that it could be considered to be exculpatory or might otherwise be relevant...
Given its nature, we are not in a position to provide you with this information. However... [the Guantánamo prosecutors] would be required to disclose the information to the defence as soon as practicable. We have raised this issue with U.S. officials.
The Foreign Sec's people did in fact have a chat with the US military prosecutors, reminding them of things which ought to come up at Mohamed's tribunal hearings. They also suggested again that it might be a better idea if the Americans simply handed Mohamed over to Blighty, rather than carrying on with the dirty-bombs prosecution. Having done all this, their faith in the fairness of the new Guantánamo court system seems to have been a trifle shaken.
Mr Bethlehem QC visited the United States on 16 June 2008 and met senior officials of the Department of Defense and the State Department to reiterate the request of the United Kingdom Government for the return of [Mohamed]. Mr Bethlehem QC gave to the Acting General Counsel to the Department of Defense and to the Legal Adviser to the Slate Department a classified letter which drew detailed attention to the additional material which had been identified as relevant... the purpose of that letter was to "draw formally to the attention of the relevant United States authorities the documents in question to enable them to address issues of relevance, exculpation and disclosure"...
On 25 July 2008 the Treasury Solicitor on behalf of the Foreign Secretary wrote to [Mohamed]'s lawyers to state that the Foreign Secretary would no longer rely upon the fact that the prosecuting authority would necessarily disclose of its own motion the material requested by [Mohamed]'s lawyers...
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