Original URL: http://www.theregister.co.uk/2008/08/22/dirty_bombs_dirty_hands/

UK spooks forced to hand Gitmo files to suspect's lawyers

Dirty bombs, dirty hands for MI5

By Lewis Page

Posted in Law, 22nd August 2008 16:35 GMT

The High Court has told British intelligence services to hand over relevant files to lawyers representing Binyam Mohamed, an Ethiopian and one-time UK resident, facing a US military tribunal at Guantánamo Bay. Mohamed is accused of plotting to trigger a radioactive "dirty bomb" on US soil, and could face the death penalty if found guilty.

The British judges set out their findings in a lengthy ruling, which offers a rare insight into the way British and American spooks have co-operated and, sometimes argued with one another, in the post-9/11 era. It sets out Mohamed's progress through the parts of the US overseas prisoner system which are visible to the UK intelligence services - and highlights his two-year disappearance into the invisible, "dark" detention sector.

Some things in the case were agreed by all hands: that Mohamed is an Ethiopian national, and that having been refused asylum in the UK he was granted leave to remain for four years from 2000. However, in early 2001 he went to Pakistan, and in June that year - a few months before 9/11 - he went on to Afghanistan. In April 2002 he was seized by Pakistani authorities attempting to fly from Karachi to London using a faked British passport. But he never entered the Pakistani criminal justice system, instead passing into US hands.

The British spooks say they were notified that Mohamed had been grabbed by their American opposite numbers, he having revealed his true identity to them after initially claiming to be from Nigeria. The Americans believed that Mohamed had been an active fighter in Afghanistan for the Taliban, and following their defeat in late 2001 had returned to Pakistan. There, according to the US spooks, he was trained in remotely-activated explosives and in "dirty bombs". Able to speak English and with residency permission in the UK, he was considered to be a likely prospect for terrorist operations in the UK or US. The American intelligence operators contended that he was heading for the US when seized.

A British spook from the Security Service (aka MI5, or SyS* as they seem nowadays to prefer to be known) went to Pakistan and interviewed Mohamed in Karachi a little over a month after he had vanished into US custody. The spook, identified only as "Witness B", said that at that point Mohamed looked thin but in good shape. According to B, Mohamed didn't try to deny that he'd fought against the Northern Alliance. He also admitted being trained in remote-activated explosives, but said this was merely so that he could blow up US armoured vehicles in combat.

Regarding the supposed "dirty bomb" plot, he said it was true he had seen information about such things on a computer, but hadn't taken it seriously. As for a second 9/11 on US soil, it was his opinion that such a thing would soon happen, but he wasn't part of such a plan and hadn't got any concrete information. B said all this in his subsequent report, seen by the court:

That report records BM telling Witness B about his time in the United Kingdom, how he obtained his United Kingdom passport from a criminal and the mosques he attended in London. He was recruited to travel to Afghanistan. He was trained in Afghanistan on weapons and explosives and thereafter, after the [2001] collapse of the Taliban, on remote devices, including landmines to be used against United States forces... The report records that BM had been asked to return to the United Kingdom to help in the provision of passports. BM said the report of a dirty bomb was "the FBI perception". The real story was that he had seen a file on a computer in Lahore and decided it was a joke - part of the instructions included adding bleach to uranium 238 in a bucket and rotating it around one's head for 45 minutes. He thought another major attack would happen - this was his assessment, but he did not know although the FBI thought he did.

B admitted to the high court beaks that he believed Mohamed was holding back on people and operations he knew of in the UK and possibly southwest Asia, and that he leant on Mohamed to some degree, telling him that the UK couldn't help him unless he fully cooperated. Mohamed refused to cough anything more and B departed.

Mohamed's position is that he went to Afghanistan to kick a drugs habit he had acquired in London, and to see if the Taliban were a good Islamic nation. He never fought against the Northern Alliance (which subsequently became the basis of the internationally-recognised Afghan government). He admits trying to leave Pakistan on a false passport.

After being handed over by the Pakistanis, Mohamed says he was interrogated by US operatives, whom he believed to be from the FBI, who had already decided that he was involved in a dirty-bomb plot against America. At this point he stuck to his fake identity and refused to talk without a lawyer. However, after being starved and put in stress positions for some days, the US agents threatened that he would be taken to another nation and tortured if he kept silent. At this point he admitted his real identity, and that he had been to Afghanistan, which he had previously denied.

After that, Mohamed says he was beaten several times by Pakistani agents and threatened with a gun. Before the British agent - B - arrived, Mohamed says all torture ceased. (The High Court beaks noted that throughout the year after 9/11, various British officers from both MI5/SyS and the Secret Intelligence Service SIS had expressed concerns regarding American treatment of prisoners, and had often sought assurances from their allies on such matters.)

Mohamed confirms there was no torture during the interview with B: however, his account of it differs from that given in B's report. He says an American officer was present, and that explicit threats of torture in a different country were made. According to Mohamed's account as provided by his lawyers to the high court:

They gave me a cup of tea with a lot of sugar in it. I initially only took one. 'No, you need a lot more. Where you are going you need a lot of sugar'. I didn't know exactly what he meant by this, but I figured he meant some poor country in Arabia. One of them did tell me I was going to get tortured by the Arabs.

Mohamed says he nonetheless refused to say anything until he was given access to a lawyer. The British agent, B, strongly denied to the high court that any such threats were made either by him or in his presence. This was after initially refusing to testify on the grounds that he might incriminate himself.

Two months later, in July 2002, Mohamed says that he was taken to Morocco by CIA jet, where his troubles really began. He says he was tortured repeatedly in Morocco, sometimes by people who wore masks - the suggestion being that these may have been Americans rather than Moroccans. Some of those who questioned him he considered to be CIA operatives - in particular a woman who told him she was Canadian. In particular, "he contends that apart from being severely beaten and subjected to sleep deprivation, his penis and private parts were cut with a scalpel".

Mohamed says that after 18 months of torture in Morocco, he was taken back to Afghanistan, to a facility near Kabul he calls "The Prison of Darkness", in January 2004. Here he was "deprived of sleep, blasted with sound, starved and then beaten and hung up", and threatened with a return to Morocco or some similar place unless he confessed to the dirty-bomb plot. He says he would have said anything his captors told him to by this point.

In May 2004, Mohammed entered US military custody at Bagram Air Base in Afghanistan. Here he signed various confessions, including admissions that he had planned a dirty-bomb outrage on US soil. After four months at Bagram he was moved to Guantánamo, where he signed more confessions.

During the two years Mohamed spent in limbo, the British spooks repeatedly asked for access to him in order to find out what he might know about terrorists and plots in the UK. It was also during this period that they became aware of the CIA black-prisons system and the use of third countries for interrogations, and it gradually became apparent to them that Mohamed must be in such a facility. The Brits also began to get more and more panicked about the cleanliness of their own hands, and their own potential liabilities - especially with respect to prisoners who had held British residency status or citizenship.

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...

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.

All in all, it looks quite plausible that Binyam Mohamed may have trained to fight US forces and their allies in Afghanistan and Pakistan, and may have seen combat in that theatre. But plenty of us have done that in the past - even us Brits have fought American forces (and more successfully, American allies) if you go back far enough. Americans have seldom found it necessary until lately to disappear people for years - and then possibly torture and finally execute them - just for taking on Uncle Sam.

Prevention of terrorist attacks on home soil is, of course, a vital objective of all spooks. But a "dirty bomb" attack - even if it were for real - seems like flimsy justification for the measures used here. After all, according to the US nuclear regulatory commission:

"A dirty bomb is in no way similar to a nuclear weapon or nuclear bomb... A dirty bomb is not a Weapon of Mass Destruction... Most [dirty bombs] would not release enough radiation to kill people or cause severe illness... health effects from exposure to the low radiation levels expected from a [dirty bomb] would likely be minimal."

In other words, Mohamed couldn't possibly ever have been any more dangerous to America than, say, a drunk at the wheel of an 18-wheeler. There's every reason to see him as an irritating, untruthful petty criminal as well as a possible irregular serviceman of the pre-2001 Taliban government in Afghanistan - but not in any way as the mastermind of another 9/11.

Even if you agree with the idea that we now have "terrorists", who aren't enemy soldiers and aren't criminals either - and therefore have only Guantánamo rights, or none at all - this is feeble stuff. Even the most fervent War on Terror supporter, the strongest backer of recent US/UK invasions, might agree with the Foreign Secretary and the British spooks that the best move by America at this point would be to send Binyam Mohamed back to Blighty for release and hope to goodness the whole thing blows over quickly. There's no possible benefit to America in pushing on with this.

The publicly-available high court ruling can be read in full here. ®

*"Sy" is the official British contraction of "Security". You can see why they didn't fancy "SS". MI5 was never a proper term to use for the Security Service spooks.