The Obama administration says it may curtail Anglo-American intelligence sharing if the British High Court discloses new details of the treatment of a former Guantanamo detainee.
A court filing from the British Foreign Office released recently includes a letter from the U.S. government, identified as the “Obama administration’s communication.” Other information identifying the U.S. agency and author of the letter appears to have been redacted.
The letter says:
“If it is determined that [her majesty’s government] is unable to protect information we provide to it, even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in the future.”
The letter stands in contrast to President Obama’s decision last month to release four memos from the Justice Department’s Office of Legal Counsel providing fresh detail on the CIA’s enhanced interrogation program.
But, the U.S. letter points out: “Neither in [those four] memoranda, nor in any statements of the administration accompanying their release, was reference made to the identity of any foreign government that might have assisted the United States.
“Given the declassification of the highly sensitive information contained in the memoranda, the fact that the president refrained from providing any information about foreign governments is indicative that the United States continues to preserve the secrecy of such information as critical to our national security.”
At issue is whether the British courts will disclose a seven-paragraph summary of the treatment of Binyam Mohamed, a former detainee who was released from Guantanamo Bay prison in February.
The British terrorism suspect was set free after charges that he had collaborated with convicted terrorist Jose Padilla in a plot to set off a “dirty bomb” in the United States fell apart. Mr. Mohamed says he was tortured while in U.S., Pakistani and Moroccan custody.
In February, the British Foreign Office claimed that the U.S. government had threatened to reduce intelligence cooperation if details of the interrogations and treatment of Mr. Mohamed were disclosed.
The High Court agreed on Feb. 4 to keep the details of Mr. Mohamed’s treatment from the public. But two days later, the court decided to take up the matter again in response to an argument that the position of the U.S. government may have represented the Bush administration’s view and not that of the Obama administration.
The letter, however, put to rest any doubt that it reflects the position of Mr. Obama’s administration. Depending on what the court decides, it also may quash Mr. Mohamed’s efforts to get the court to disclose any U.S. confirmation that he was tortured.
“The seven paragraphs at issue are based upon classified information shared between our countries,” the U.S. letter said. “Public disclosure of this information, reasonably could be expected to cause serious damage to the United Kingdom’s national security.
“Specifically, disclosure of this information may result in a constriction of the U.S.-U.K. relationship, as well as U.K. relationships with other countries.”
Clive Stafford Smith, an attorney for Mr. Mohamed, said in a telephone interview that he was disappointed.
“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.
Mr. Smith said he is scheduled to meet with the Metropolitan Police next week. “One of the questions that will come up is whether these statements by the U.S. government are an independent crime that should be investigated,” he said.
David Rose, a contributing editor for Vanity Fair and one of the parties in the case petitioning the British court to release the details of Mr. Mohamed’s interrogation, said the U.S. government might be helping the British government shroud its own hand in Mr. Mohamed’s treatment.
“Binyam Mohamed has always alleged that MI5 agents colluded in his maltreatment and reiterated this in an interview with me after his release,” Mr. Rose said. “The British government’s attitude towards this case has been characterized by an absence of candor for many months. One has to wonder if this is in order to protect the true role the British agencies played.”
The White House and Justice Department declined to comment for this story.
Last month, the 9th U.S. Circuit Court of Appeals agreed to proceed with another case Mr. Mohamed was bringing against Boeing subsidiary Jeppesen Dataplan, claiming the company renditioned him to foreign jails from Pakistan to Morocco.
In that case, the Obama Justice Department requested that the circuit court vacate the case on the grounds that it would disclose state secrets, a plea the Justice Department lost.
Last month, Mr. Obama said at a press conference that the state secret privilege should be modified and that it was “overly broad.”
“But keep in mind, what happens is we come into office; we’re in for a week and suddenly we’ve got a court filing that’s coming up,” the president said. “And so we don’t have the time to effectively think through what exactly should a[n] overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.
“There - I think - it is appropriate to say that there are going to be cases in which national-security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety,” the president said.
Ben Wizner, a lawyer with the American Civil Liberties Union (ACLU) who represents Mr. Mohamed and others in a civil lawsuit against Jeppesen Dataplan, which is accused of supplying the equipment and personnel used to transport prisoners among nations, said the Obama administration should have no problem releasing the seven paragraphs disclosing details of Mr. Mohamed’s treatment.
“The U.S. actions viewed as a whole seem aimed at preventing accountability in either the United States or in Europe for the past administration’s crimes,” Mr. Wizner said.