In a ruling handed down yesterday, the High Court relucantly held that US documents containing information relating to the treatment of Binyam Mohamed, the last recognised British resident to be held in Guantanamo Bay, should be with withheld from publication (Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs  EWHC 152 (Admin); 11KBW’s Karen Steyn appeared on behalf of the Secretary of State). The case is a highly sensitive one as Mr Mohamed alleges that evidence allegedly implicating him in terrorist activity was obtained as a result of torture. It is his position that the withheld information would suport his case on this issue. The Court based its ruling on a statement made by the Foreign Secretary, David Miliband, to the effect that disclosure of the information would pose a risk to intelligence co-operation from the US if it was published and would, as a result, put the UK general public at risk. The judges (Thomas LJ and Lloyd Jones J) made clear in the ruling that they had serious concerns about the position that the goverment was adopting on the question of whether the information should be published, not least because, in their view, the information in question could not itself possibly be described as sensitive US intelligence. However, they went on to conclude that they had no alternative but to refuse publication in light of Mr Miliband’s statement. Notably, Clive Stafford Smith, who represents Mr Mohammed has commented that the judgment is in fact ‘canny’ because: ‘If the judges had ordered the material to be revealed, over the government’s objection, there would have been a protracted appeal and nobody would have learned anything for months or years. Instead, they have placed both the British government and the Obama administration in the immediate and uncomfortable position of having to confess whether they want to cover up evidence of torture.’ In a statement, the White House thanked the UK government ‘for its continued commitment to protect sensitive national security information’. In a statement made in Parliament today, Mr Miliband asserted that the question whether this information should be made public was a decision which only the US could take and that the UK ought not to interfere with those decisions. The ruling highlights the particular difficulties which courts face when dealing with applications for disclosure of information in the face of Government assertions that disclosure will damage national security.
Commentary by Clive Stafford Smith