PLANS BY British judges to accuse MI5 of operating a culture of suppression and showing a disregard for human rights were dropped following a warning by Foreign Office lawyers that the first draft of the judges’ ruling was “extraordinarily damaging” to the intelligence agency.
The Court of Appeal dismissed an attempt by foreign secretary David Miliband to stop publication of seven paragraphs detailing evidence that MI5 knew that Ethiopian Binyan Mohamed had been tortured by the CIA.
In its ruling, the court rejected Mr Miliband’s assertion that disclosure of American intelligence would damage US-British relations, partly on the grounds that a US court had released much of the information late last year.
Mr Mohamed, who was granted refugee status in Britain in 1994, was detained by the Americans in Pakistan in 2002.
He was subsequently questioned under duress in Afghanistan and Morocco, before being sent to Guantánamo Bay.
Up to yesterday, the foreign secretary refused to publish seven paragraphs from a British document which outlined how Mr Mohamed had been deprived of sleep, subjected to a mock execution, beaten and threatened with “disappearance” by CIA agents.
Similar treatment could not have been meted out by British officers without breaching undertakings not to mistreat prisoners – given in 1972 in the wake of beatings of Republican prisoners in Northern Ireland.
“Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” the document said.
Publishing their ruling, the judges openly stated that they had amended the original wording to remove remarks that the foreign secretary’s lawyer had warned were likely to “receive more public attention than any other parts of the judgment”.
While the first draft was not published, it is clear from the letter from Jonathan Sumption QC that it would have contained unprecedented criticism by the courts of the intelligence agency.
He said the original text would lead readers to believe that MI5 did not operate a culture that respected human rights or abjured participation in coercive interrogation techniques, and that it had deliberately withheld information from the foreign secretary.
In addition, Mr Sumption said the warning that courts should distrust any assurance given by the British government on the basis of MI5 information would mark an unprecedented breach between the executive and the courts.