Case of Binyam Mohamed

Summary: Binyam Mohamed, a native of Ethiopia who was living in Britain before going to Afghanistan, was held as a terrorism suspect by the United States from 2002 until 2009 at prisons in Morocco, Afghanistan, and Guantanamo Bay, Cuba. During that time, he alleged that was subjected to torture, either by Americans or by Moroccan agents acting in concert with US and British intelligence agents. After charges against him were dropped, he was released and sent to Britain. There, he filed suit to make public papers he said would prove his allegations of torture. Mohamed's case resulted in a multi-faceted scandal that included a British High Court ruling in 2010 denying the request of the British intelligence agency MI5 that certain information about Mohamed's case be kept secret on grounds of national security. The ruling also revealed threats by officials of the administration of Barack Obama to withhold future intelligence cooperation with Britain if details about Mohamed provided by the CIA were made public.

Binyam Mohamed, a native of Ethiopia and a legal resident of Britain, was arrested in Pakistan in 2002, accused of having traveled from Britain to Afghanistan to fight on behalf of the Taliban. He was turned over to the United States and held prisoner for seven years. During that time, he has alleged, he was subjected to harsh torture that included genital mutilation as his captors tried to force him to confess to participation in an Al Qaeda plot to plant a "dirty bomb" inside the United States.

Mohamed's allegations of torture were not unique. But in February 2010, his case took on a much broader significance when three of Britain's most senior judges ruled against the British government's request to keep details of his case secret on grounds of national security. Specifically, the government wanted to keep secret an excerpt from a memorandum received from the US Central Intelligence Agency relating to Mohamed's treatment as a US prisoner. The British government argued that officials of the Obama administration in Washington had threatened to refuse to share intelligence information in the future if the CIA memorandum were made public. The British government temporarily persuaded one British judge to edit the ruling in the case in a procedure regarded as having nearly overturned nearly 400 years of legal precedent.

The Mohamed case that culminated in February 2010 raised questions that threatened to go far beyond the specifics of one prisoner:

• Could British intelligence organizations continue to rely on the courts to keep information secret deemed by the government to be a matter of "national security?"
• What would be the future relationship of British and American intelligence agencies - chiefly MI5 and the Central Intelligence Agency - whose ties had long been regarded as among the closest between any national intelligence organizations? Did the Mohamed case mark a breach in Britain's cooperation with the United States in the war on terrorism?
• Was the Obama administration, in fact, maintaining the same position as the George W. Bush administration on using "national security" as an excuse to hide alleged instances of torture by American agents in the war on terrorism?

Facts of the case

Binyam Mohamed, son of an Ethiopian Airlines official, was born in Ethiopia on July 24, 1978. In 1994, he went to Britain and asked for political asylum, citing his family's opposition to the Ethiopian government. His request was denied, but in 2000, he was granted permission to remain in Britain for four years, pending lengthy appeals. In 2001, he converted to Islam and attended a mosque frequented by radical Muslims. Later that year, he traveled to Pakistan and Afghanistan. Mohamed says he wanted to escape a drug-centered social scene in London and to see firsthand the fundamentalist Islamist regime established by the Taliban. The United States alleges he received military training at an Al Qaeda camp, fought for the Taliban, and conspired to bring a radioactive "dirty bomb" to the United States, as well as receiving firearms training alongside "shoe bomber" Richard Reid.

In April 2002, en route back to Britain, Mohamed was arrested in Karachi, Pakistan, and handed over to the United States. In July 2002, he was flown from Pakistan to Morocco, where he was held in a secret "ghost prison" and frequently tortured for eighteen months before being taken in January 2004 to a "dark prison" in Kabul, Afghanistan. In September 2004, he was transferred to Guantanamo Bay, Cuba, where he was held until February 2009.

Mohamed has alleged that during his imprisonment, he was repeatedly subjected to torture that included slicing his penis, being beaten, scalded, held in the dark for twenty-three hours a day, and being subjected to ear-splitting sounds, including the screaming of women and children. During his imprisonment, he has alleged, he became aware that British intelligence officials were submitting questions to the Moroccans who were torturing him over a period of eighteen months. Mohamed has stated that to stop the torture, he admitted to meeting high Al Qaeda officials, including Osama bin Laden and the American terror suspect Jose Padilla, in cooperation with whom Mohamed supposedly planned to blow up an apartment building and/or bring a "dirty bomb" into the United States. Mohamed has subsequently denied all allegations of colluding with Al Qaeda.

In August 2007, the United States declined a British request to return Mohamed, along with several other Guantanamo prisoners, to Britain. Lawyers for Mohamed then sought the release of evidence relating to their client; in May 2008, after the British government declined to release the information, the lawyers brought suit to force Mohamed's release. Also in May 2008, the United States filed charges accusing Mohamed of conspiring with Al Qaeda to commit murder and terrorism; those charges were dropped in October - in part because a trial might lead to the disclosure of details about his torture - and in February 2009, the US returned Mohamed to Britain following a hunger strike he staged, along with others, to demand his release. Also in February 2009, a British High Court handed down a decision in Mohamed's favor; the ruling included a seven-paragraph summary of CIA information about Mohamed provided to British authorities. The British Foreign Office then went to a higher court in an effort to keep those paragraphs secret. The Foreign Office's appeal cited an American threat to withhold sharing intelligence if secret information were made public.

In February 2010, three of Britain's most senior judges - Sir Igor Judge, the lord chief justice; Lord Neuberger, the master of the rolls; and Sir Anthony May, president of the Queen's Bench - ruled against the government's claim that "national security" justified keeping secret the earlier court's summary of CIA information about Mohamed. The details and circumstances of the 2010 ruling raised yet another set of issues somewhat peripheral to the specifics of Mohamed's case after it was disclosed that a draft version of the High Court's opinion was circulated to interested parties, as is customary, to check for errors. In response, the British Foreign Office asked Lord Neuberger to eliminate a twenty-one-line paragraph in the draft ruling - subsequently called "Paragraph 168" - that included the judge's finding that MI5 had previously "deliberately misled" a parliamentary inquiry into torture and had engaged in a "culture of suppression." Before the ruling was published, the Foreign Office requested that Paragraph 168 be excised on grounds it was exceptionally damaging to the security services and might be "highly prejudicial to any criminal proceedings that might subsequently be brought. The judge initially agreed to remove Paragraph 168 from his ruling on the mistaken assumption that other parties to the case did not object. In fact, the Foreign Office letter had not been shared with other parties to the case - including several newspapers - thereby breaking a precedent in British jurisprudence set in 1637.

The original ruling implied that MI5's culture of suppression had caused the agency to be less than forthcoming in a recent British parliamentary inquiry into the possible role of Britain in the torture of terrorist suspects. In response to those allegations, the director general of MI5, Jonathan Evans, insisted that the court's allegations were "the precise opposite of the truth." Evans also insisted that his service had not withheld any documents pertaining to Mohamed from parliament's intelligence and security committee.

In 2010, the UK government agreed to pay Mohamed an undisclosed amount of money. Mohamed’s case brought to the forefront of discourse not just discussions on the ethical treatment of prisoners but the democratic accountability of governments and the transparency of government systems.

Bibliography

Norton-Taylor, Richard. “Binyam Mohamed court ruling shatters spies' culture of secrecy.” The Guardian, 10 Feb. 2010, www.theguardian.com/world/2010/feb/10/law-binyam-mohamed-case. Accessed 5 October 2023.

“Profile: Binyam Mohamed.” BBC News, 12 Feb. 2010, news.bbc.co.uk/2/hi/uk‗news/7906381.stm. Accessed 5 Oct. 2023.