Obama administration threatens Britain to keep torture evidence concealed

If a British court describes Binyam Mohamed's torture, then the U.S. will no longer inform Britain of terrorist plots, Obama threatens.

Published May 12, 2009 2:36PM (EDT)

(updated below - Update II)

Ever since he was released from Guantanamo in February after six years of due-process-less detention and brutal torture, Binyam Mohamed has been attempting to obtain justice for what was done to him.  But his torturers have been continuously protected, and Mohamed's quest for a day in court repeatedly thwarted, by one individual:  Barack Obama.  Today, there is new and graphic evidence of just how far the Obama administration is going to prevent evidence of the Bush administration's torture program from becoming public.

In February, Obama's DOJ demanded dismissal of Mohamed's lawsuit against the company which helped "render" him to be tortured on the ground that national security would be harmed if the lawsuit continued.  Then, after a British High Court ruled that there was credible evidence that Mohamed was subjected to brutal torture and was entitled to obtain evidence in the possession of the British government which detailed the CIA's treatment of Mohamed, and after a formal police inquiry began into allegations that British agents collaborated in his torture, the British government cited threats from the U.S. government that it would no longer engage in intelligence-sharing with Britain -- i.e., it would no longer pass on information about terrorist threats aimed at British citizens -- if the British court disclosed the facts of Mohamed's torture. 

As I wrote about in February, those threats from the U.S. caused the British High Court to reverse itself and rule that, in light of these threats from the U.S., it would keep seven paragraphs detailing Mohamed's torture concealed.  From the British court's ruling:

The United States Government's position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided (para. 62) . . . . [and] there is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains (para. 106).

Just think how despicable that threat is:  if your court describes the torture to which one of your residents was subjected while in U.S. custody, we will withhold information from you that could enable you to break up terrorist plots aimed at your citizens.

In the aftermath of that ruling, there was some dispute about whether the Obama administration had really issued this threat to Britain or whether it was merely a residual threat from the Bush administration.  But in the wake of a recent motion by Mohamed's lawyer to the British court for re-consideration of its ruling, in response to which the British government submitted the written threats from the Obama administration, there can now be no doubt not only that Obama made these threats to Britain, but did so in a remarkably extreme and heavy-handed manner.

The Washington Times' Eli Lake reported this morning that "the Obama administration [said] it may curtail Anglo-American intelligence sharing if the British High Court discloses new details of the treatment of a former Guantanamo detainee."  Last month, when I interviewed Mohamed's lawyer, Clive Stafford Smith, he made clear just how grave of an act -- a crime -- such threats are, but nonetheless expressed hope that the Obama administration would repudiate those threats:

On the other hand, it is clear that there has now been a threat, and indeed the judges say eight times in the latest opinion, that the British government was threatened with sanctions if they were to release evidence of torture. And this needs to be put into perspective. Actually covering up evidence of torture is a criminal offense for which you can go to prison here in Britain, and I imagine in the US but I'm not quite sure about that. And the idea that the British government would conspire with the US or be threatened by the US to do this is again an independent violation of the law. . . .

The British courts are saying that the British government relied on President Obama's view that this material about torture shouldn't be released to the public. It became clear to us in Britain that actually President Obama had never made that decision and that the British government had somewhat misrepresented his position to the courts. And what I thought was only fair and appropriate was for President Obama to make a decision himself: Do you, President Obama, I voted for you and I think he's a good man, do you really, really tell your officials to cover up evidence of torture committed by US personnel?

That question about Obama's intentions -- along with Obama's decision last month to release the 4 OLC torture memos -- is what led Smith to make his motion for the British High Court to re-consider its ruling that it would not make the torture details public:  namely, he wanted definitive evidence one way or the other as to whether Obama really was issuing these threats to the British government.

That definitive evidence came, and it leaves no doubt that these threats to the British government are now being issued every bit as emphatically from Obama.  I've obtained a copy of the letter excerpts submitted to the British court (.pdf - see pages 6-9), submitted by the British Government to prove that the U.S., under Obama, is continuing to make these threats.  Here are key excerpts from the Obama administration's letter; just marvel at what the U.S. is saying to Britian:

In other words:  if you let your courts describe how we tortured Mohamed -- even if your laws compel such disclosure -- we may purposely leave your citizens vulnerable to future terrorist attacks by withholding information we obtain about terrorist plots.  Smith re-iterated to Lake what he told me last month:  that the Obama administration's actions in issuing these threats in order to hide evidence of torture is itself a criminal act:

"What they are doing is twisting the arm of the British to keep evidence of torture committed by American officials secret," said Mr. Smith, a U.S. citizen. "I had high hopes for the Obama administration. I voted for the guy, and one hopes the new administration would not continue to cover up evidence of criminal activity."

The Metropolitan Police of London is investigating whether Mr. Mohamed was tortured when he was in American custody.

Mr. Smith said that by attempting to keep evidence of Mr. Mohamed's "abuse" secret, the U.S. official who communicated the threats to the British Foreign Office was in breach of British law, specifically the International Criminal Court Act of 2001.

"The U.S. is committing a criminal offense in Britain by seeking to conceal this information. What the Obama administration did is not just ill-advised, it is illegal," he said.

Independently, Article 9 of the Convention Against Torture requires that "States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings."  If the U.S. were a country that adhered to its treaty obligations -- rather than systematically ignored them whenever the mood struck -- that, too, would be significant.

The principal issue here is that the Obama administration is not merely failing to investigate (let alone prosecute) acts of high-level criminality by U.S. government officials.  Far worse, ever since he was inaugurated, Obama has engaged in one extraordinary legal maneuver after the next to block American courts from ruling on the legality of those actions.  He has now extended his Bush-protecting conduct to the international realm, as he re-iterates Bush's threats that we will purposely leave British citizens more vulnerable to terrorist attacks if their courts rule that, under their laws, their citizens are entitled to know what was done to Binyam Mohamed.  

Here is what the British High Court said when reversing its decision to disclose the evidence in light of these threats from the U.S. government (click to enlarge):

I believe their error was in conceiving of the United States as a country "governed by the rule of law."


UPDATE:  In cases like this, there is frequently a demand that speculation be put forth as to motives, i.e., why would the Obama administration do something like this?  I prefer to avoid such questions precisely because they rely on speculation and, independently, ultimately don't matter much.  Political leaders should be judged on their actual words and actions, not the secret motives that one can invent and then attribute to them to make their actions seem either more benign or more malevolent.  

If I had to guess here -- and it's only a guess -- it seems clear that the British Government does not want these facts disclosed.  After all, Mohamed's allegation is that British government agents broke the law by collaborating in his torture.  The British Government needs a reason to justify to its High Court concealment of the details of what was done to Mohamed, and being able to point to a "national security harm" from disclosure (i.e., the U.S. is threatening to cease intelligence-sharing) provides that excuse.  Since both the British and U.S. Governments obviously prefer that evidence of Mohamed's torture be concealed, it is not difficult to envision the Obama administration happily cooperating (as the Bush administration did) by providing the British with whatever they need to justify ongoing concealment of this evidence (if you need us to say that we'll cut off intelligence-sharing with you in the event of disclosure, here's a letter saying that).  In other words, this isn't really a case of the U.S. Government genuinely threatening Britain as much as it is the two governments collaborating to provide the British government with an excuse to justify concealment, on national security grounds, of the facts of Mohamed's torture.

Andrew Sullivan's suggestion that concealment might be necessary to protect the Pakistani government -- made in the course of justifably condemning the Obama administration's actions as "depressing news" -- makes little sense to me, since (a) it's possible (actually, quite easy) to detail what was done to Mohamed without disclosing in which foreign government's custody he was when it happened; (b) why would evidence of the Musharraf government's torture of Mohamed harm the current Pakistani government?; and, most of all, (c) it's already public knowledge that Mohamed was seized, detained and abused in Pakistan (see paragraphs 59-68 of Mohamed's complaint against Jeppesen, entitled "Detention, Interrogation and Torture in Pakistan").

Lastly, just to address some typical excuses from Obama supporters that are arriving in my email and comment section:  the letter that I've posted is one that the British Government submitted to the High Court and which lawyers for the British Government stated was authored by the Obama administration.  It is part of the public filing in that case.  That letter discusses disclosure of the 4 OLC letters, which occurred just last month, which means that the Obama letter must have been authored within the last several weeks, not in February.  The whole point of this motion was to determine if the Obama administration re-iterates and embraces the threats previously made by the Bush administration, and the British government stated emphatically that the Obama administration does embrace those threats. 

Those are just facts that won't disappear no matter how much one wishes them away.  Here is a Guardian article detailing the hearing at which British government lawyers made these claims, and here is an Associated Press article detailing the time line and how the Obama administration just this last week reiterated the Bush threats.


UPDATE II:  In fairness, it should be noted that not everyone is unhappy with what the Obama administration is doing in this case.  The Weekly Standard's Michael Goldfarb heaps lavish praise on Obama for his efforts to ensure that the details of Mohamed's torture -- which included, among other things, genital slicing -- are kept concealed.  So it's not as though Obama is without supporters in this matter.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

MORE FROM Glenn Greenwald

Related Topics ------------------------------------------