A Samurai's Confessions: the torture of Binyam Mohamed and the state secrets privilege

The NY Times' editorial on February 10, 2009 said, "The Obama administration failed - miserably - the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law."
This unequivocal editorial statement was about the federal Court of Appeals' hearing held on February 9, 2009 in a lawsuit filed on behalf of an Ethiopian, but a British resident, Binyam Mohamed, and four other detainees against a subsidiary of the Boeing Company, Jeppesen Dataplan. The suit argues that the subsidiary arranged rendition flights that took the detainees to countries where, they say, they were tortured.
The original suit was filed by the American Civil Liberties Union in the Federal District Court in San Francisco in May 2007. It was dismissed last February after the Bush administration asserted the "state secrets privilege," claiming that the disclosure of information in the case could damage national security and US foreign relations.
At the hearing in San Francisco last week we obtained a glimpse into the future how the Obama administration would make a break from the Bush administration's claim of government secrecy concerning an "extraordinary rendition" program of terrorism suspects to undisclosed countries where they may face torture.
Given President Obama's first set of executive orders issued within a week in office closing the Guantanamo facility in a year and banning torture in the treatment of prisoners, there was no doubt an expectation that this administration would repudiate the claim of a privilege on secrecy.
The US Department of Justice, however, argued that the subject matter of the suit was so sensitive to national security that it cannot be discussed in court, therefore, the suit should be dismissed as the lower district court had done. That is the same expansive state-secrets argument that was pressed by Bush's lawyers to persuade a trial court to dismiss the case without any evidence being presented.
They claimed the privilege of state secrets, the practice of which Obama as a presidential candidate harshly criticised. What secret? There is ample information about the CIA's rendition, detention and coercive interrogation programs that is already in the public domain. Under international law participation in torture is a crime, so should the concealment of such torture. The Obama administration should not invoke state secrets to cover up charges of rendition and torture.
At the same time at the other side of the Atlantic, lawyers for Binyam Mohamed, a Guantanamo detainee, at the center of a diplomatic stand-off between Britain and the United States appealed directly to President Obama to have classified information about his treatment in US custody made public.
The case could potentially be embarrassing for the new administration. The Obama administration came to power promising a shift in policy on torture, rendition and state secrets. The torture Mohamed endured there "would make waterboarding seem like child's play," said. Lieutenant Colonel Yvonne Bradley, Mohamed's US military lawyer.
In the judgement given in the High Court case in London as discussed last week in this column (see "The case of Binyam Mohamed: An extraordinary judgment," February 11, 2009), the High Court judges complained that they could not release details of Mohamed's alleged mistreatment and Britain's role in it, even though it was in the interests of justice, because the United States Government had threatened to withdraw intelligence co-operation from Britain and this could put British lives at risk.
"It was and remains (so far as we are aware) the judgment of the Foreign Secretary that the United States Government might carry out that threat and this would seriously prejudice the national security of the United Kingdom," the judges wrote.
The judges end the decision with a plea to the United States Government to reconsider its position: "If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain."
About three weeks before the High Court judgment, Ms Suzan J. Crawford, the Convening Authority for Military Commission, US Department of Defence, gave an interview, published in the Washington Post on 14 January 2009, in which she told the reason why she had refused to allow the charges against Al Qahtani, a Saudi detainee, to be referred to a Military Commission - "We tortured [Mohamed al] Qahtani," said Ms Crawford.
The cumulative effect of the interrogation techniques employed at Guantanamo Bay on him in 2002 amounted in her view to torture in view of the extreme effects they had had on him. Ms Crawford concluded: "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution. "It did shock me," Crawford said. "I was upset by it. I was embarrassed by it.
If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it." That decision by Ms Crawford means that any question regarding the illegality of the method and treatment of the detainee concerned will not be argued before the Military Commission.
There is no possibility of such information will be placed in the public domain unless the United States Government decides to disclose it on its own volition. In his inaugural address on January 20, 2009, Obama rejected "as false the choice between our safety and our ideals." These ideals were reflected in "a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations."
Obama said, "Those ideals still light the world, and we will not give them up for expedience's sake." And so, he tells to all other peoples and governments that the United States is ready to lead again by making itself "a friend of each nation and every man, woman and child who seeks further of peace and dignity."
At the hearing in San Francisco referred to above a lawyer for the Obama administration surprised the judges by arguing for preserving state secrets that was originally formulated by the Bush administration. Judge Mary M. Schroeder Schroeder asked, "Is there anything material that has happened"? The lawyer, Douglas N. Letter, replied "No, your honour."
The judge asked again, "The change in administration has no bearing?" Again, Letter said, "No, Your Honour." He elaborated that the position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorised positions." That shocked the New York Times; hence, the editorial quoted at the outset.
Noting that "Transparency promotes accountability and provides information for citizens about what their Government is doing," President Obama said, "a democracy requires accountability, and accountability requires transparency," and instructed the Freedom of Information Act should be administered with a clear presumption in favour of disclosure: "In the face of doubt, openness prevails." What has happened to such a clear and unequivocal statement of policy?
Part of this new executive order that was so refreshing was his specific instruction: "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve."
The Obama administration is now negating what it has set out to do - at least in the case of the disclosure of information. The High Court judges say, "The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy. Championing the rule of law, not subordinating it, is the cornerstone of a democracy."