UK spooks forced to hand Gitmo files to suspect's lawyers
Dirty bombs, dirty hands for MI5
This was pretty much the British government's last line of defence against Mohamed's lawyers. Even so, the High Court beaks were in no hurry to hand over classified British government files to a pack of crusading lawyers - the more so as Mohamed's lawyers had, in addition to requesting any information specifically relevant to him, thrown in a broad "fishing" request for anything to do with any prisoners anywhere. The beaks asked the Guantánamo authorities - through Foreign Office channels - to halt their proceedings until the London High Court could sort out just what, if anything, should be disclosed to the British lawyers. But they got no answer.
We wrote to the Foreign Secretary... We asked him to consider drawing to the attention of the [Guantánamo authorities] to this case and the fact that normally in this jurisdiction the Executive Branch of Government would not make a decision in advance of the court giving its judgment...
Mr Bethlehem QC... wrote to the Acting General Counsel of the Department of Defense (with a copy to the Legal Adviser to the State Department) enclosing our letter and asking him to draw it to the attention of the Convening Authority if appropriate.
It is a matter of considerable regret that no response was received, despite our reiterating our request in the course of the hearing.
Nettled, the High Court justices held a rapid five-day hearing, partly in secret using security-cleared "special advocates" and partly in open court. The spook B was cross-examined, another spook (A) submitted written evidence, and the beaks and large numbers of lawyers sat up late arguing.
In the end, it seems plain that the judges were deeply offended by the idea of secret detention.
The United States Government has refused to provide any information as to [Mohamed's] location between the time he was clearly in the de facto custody of the United States in Pakistan on 17 May 2002 and his arrival in Bagram two years later... it is inconceivable that there are no documents in the possession of the United States Government that relate to what happened...
There must be documents that record or evidence his movements, his custody and his treatment when interviewed. We have been given no reason why such documents cannot now be produced by United States military prosecutors and can think of none... it is a basic and long established value in any democracy that the location of those in custody is made known to the detainee's family and those representing him.
Though they bent over backwards to avoid establishing any precedent for the future, the beaks said that in this specific case they will order the British government to disclose "documents and information specific to Binyam Mohamed" to the London lawyers "in confidence". However, they will not uphold the crusading lawyers' other requests, for "any evidence of extraordinary rendition carried out by the United States generally", "any evidence relating to the 'Dark Prison' near Kabul or of mistreatment of prisoners... any United States violations of its international legal obligations and the treatment of prisoners of war on terror, including but not limited to certain identified conventions". The exact details of what gets handed over will be settled next week.