23 May, 2009 – guardian.co.uk

Binyam Mohamed may have returned home but his struggle to secure evidence from the government about his torture continues

Former Guantánamo prisoner Binyam Mohamed has been back in the UK for two months, but his lawyers’ year-long legal struggle to secure evidence from the British government – relating to its knowledge of his torture in Pakistan and Morocco between April 2002 and May 2004 – shows no sign of being resolved.

Last August, two high court judges – Lord Justice Thomas and Mr Justice Lloyd Jones – ruled that the government’s involvement in this period of his detention went ‘far beyond that of a bystander or witness to the alleged wrongdoing’. This was because two intelligence agents had interrogated Mohamed in May 2002, when he was being held illegally in Pakistani custody, and because the British government conceded that it had exchanged intelligence with its US counterparts after Mohamed was flown out of Pakistan by the CIA in July 2002.

The judges recommended that 42 documents relating to Mohamed should be released by the government – or, failing that, a seven line summary of the evidence compiled by the judges themselves – but for the last nine months the government has refused, repeatedly claiming that to do so would cause irreparable damage to the relationship between the UK and US intelligence services.

Two weeks ago, the judges announced that they were reopening the case, following submissions from Mohamed’s lawyers casting doubt on the government’s assertions that the Obama administration was pursuing the same policy as that of its predecessor.

Another letter from the US administration followed, indicating that, if the information were revealed, ‘we will necessarily have to review with the greatest care the sensitivity of information we can provide in the future’. In the high court yesterday there was further inconclusive wrangling about the letter, which was marked as being the ‘Obama administration’s communication’, but had the names of the agency involved and the letter’s author blacked out. At the end of the afternoon, the judges announced that they would hold another hearing in a month, when they would explain why they had decided to reopen the case, and would also announce their latest ruling.

However, while this seemingly endless case drags on, new information about Mohamed’s case has emerged in the last week, which indicates that the government was not being entirely truthful when Foreign Office officials conceded in the high court last year that the UK had exchanged intelligence with its US counterparts while Mohamed was being held incommunicado, but that they had not been told where he was being held.

In the Mail on Sunday, David Rose reported that Mohamed had explained to his lawyer, Clive Stafford Smith, the director of the legal charity Reprieve, that a British spy – a UK citizen of Moroccan descent, identified as Informant A – had been sent to persuade him to cooperate with his Moroccan torturers in September 2002. According to accounts given by Mohamed and other witnesses, Informant A had known Mohamed in London, had helped facilitate his travel to Pakistan, and, after being captured in Pakistan in the months before Mohamed was seized, had been recruited by the British intelligence services.

In another twist to the tale, on Wednesday, Stafford Smith was scheduled to deliver testimony about Informant A to the Commons committee on foreign affairs, but when he arrived at Portcullis House for the meeting, he was told that the Committee had been notified that his proposed testimony fell ‘wholly within the terms of the house’s sub judice resolution’, which states that ‘cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.’

In response, Stafford Smith has lent a letter to Mike Gapes MP, the chair of the committee, stating that, ‘If these rules were interpreted in accordance with the advice given to you, and consistently applied, this would eviscerate parliament’s function. Indeed, if the advice given to you was truly a reflection of the parliamentary rule, then a swathe of MPs and Lords are already in violation of it. With due respect, it is clear that the advice is wrong, and serves to limit debate without furthering any legitimate interest of the courts.’

He also pointed out, ‘If, as is true in Binyam Mohamed’s case, the courts allow complete public discussion of the case, then parliamentarians are the only people in Britain (indeed, the world) who are not permitted to talk about something as significant as the torture of Binyam Mohamed.’

Stafford Smith has yet to receive a response, but he made it clear that, if the sub judice rule cannot be ‘interpreted in a manner consistent with the … right to seek redress,’ or is not ‘revisited immediately and changed,’ he will have no choice but to embark on further litigation to address the previously undisclosed existence of Informant A, which, as he stated, reveals that the British authorities’ claim that they ‘did not know where Mr Mohamed was for more than two years of his torture’ is ‘a patent falsehood.’

With reference to the words of Lord Justice Thomas and Mr Justice Lloyd Jones, the revelations about Informant A also suggest that the British government’s involvement in Mohamed’s detention and torture went so ‘far beyond that of a bystander or witness to the alleged wrongdoing’ that further attempts to resist the disclosure of the judges’ summary may soon be the least of David Miliband’s worries.