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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (Rev 1) [2009] EWHC 2549 (Admin) (16 October 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/2549.html Cite as: [2009] EWHC 2549 (Admin) |
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This is a revised redacted version of the redacted version of our 5th judgment we handed down on 16 October.
Lord Justice Thomas
QUEEN'S BENCH
DIVISION DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE LLOYD JONES
____________________
The Queen on the Application of Binyam Mohamed |
Claimant |
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- and - |
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Secretary of State for Foreign and Commonwealth Affairs |
Defendant |
____________________
Thomas de la Mare and Martin Goudie (instructed by The Treasury Solicitor's Special Advocates Support Office)
as Special Advocates for the Claimant
Pushpinder Saini QC and Karen Steyn (instructed by The Treasury Solicitor) for the
Respondent
Guy Vassall-Adams (instructed by Jan Johannes) for the Guardian News and Media Ltd, British Broadcasting Corporation,
Times Newspapers Limited, Independent News and Media Ltd, The Press Association (The UK Media)
Geoffrey Robertson QC, Kate Annand and Alex Gask (instructed by Finers Stephen Innocent LLP)
for The New York Times Corporation, The Associated Press, the LA Times,
the Washington Post and the Index on Censorship (The International Media)
Guy Vassall-Adams (instructed by Bindmans LLP) for The Incorporated Council of Law
Reporting
David Rose in person
____________________
Crown Copyright ©
THE RE-OPENING OF OUR FOURTH JUDGMENT
(1) The legal principles
"No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as an exception into some sort of criteria for what is required for the recalling of an order before it is sealed."
In a further judgment of the Court of Appeal in Paulin v Panlin [2009] EWCA Civ 221 Wilson LJ conveniently set out at paragraph 30 examples of the application to particular facts of the jurisdiction to reverse an error prior to the perfection of a judgment.
(2) The basis upon which PII was claimed by the Foreign Secretary
"10. ...Their advice has been clear and unanimous and my judgement is the same; disclosure of these documents by order of our courts or otherwise by United Kingdom authorities would seriously harm the existing intelligence sharing arrangements between the United Kingdom and the United States and cause considerable damage to national security. I have also assessed that it may damage international relations of the United Kingdom more generally in liaison arrangements with third parties.
11. In reaching my assessment I have taken into account the fact that the US administration on the basis of clear, consistent and forceful communications, both written and oral, from senior officials, including at the highest national security levels from all of the departments and agencies concerned, have indicated that such damage was likely to occur...."
He then referred to a letter dated 21 August 2008 to Mr Daniel Bethlehem QC, the Legal Adviser to the Foreign and Commonwealth Office, from John Bellinger, the then Legal Adviser to the then United States Secretary of State, which stated in the clearest terms that the public disclosure of the documents or the information contained therein:
"is likely to result in serious damage to US national security and could harm existing intelligence information sharing arrangements between our two Governments."
"This correspondence also underlines publicly the wider US concerns going to "serious and lasting damage to the US-UK intelligence sharing relationship" that would be caused by the disclosure of the information in question by order of our courts."
(3) The need to distinguish between the principle of control over intelligence and the statement of consequences which would follow (the threat)
i) The principle of control over intelligence: There can be no doubt that there is a general principle or convention that intelligence information received by one State from another will not be released into the public domain or otherwise used without the consent of the state supplying it. This principle is often referred to as the "principle of control over intelligence" and we shall refer to it as such. For example, that principle was very clearly expressed by Baroness Neville-Jones in the debate in the House of Lords on 5 February 2009 in the following terms:
"[The Minister] is also right to say that by convention the sensitive information of another country is not and should not be publicly disclosed without that country's permission. That is well established practice."
As we set out at paragraph 69.iv) below, the evidence is that while the receiving State will normally be expected to resist the making of a court order for disclosure, such court ordered disclosure is well understood by the Governments of the United States and the United Kingdom to be an exception to the principle of control which, accordingly, cannot be considered an absolute principle. As a result, court ordered disclosure would not ordinarily have adverse consequences to the national security of the United Kingdom.
ii) The statement of consequences which would follow (the threat): In the communications from the United States Government leading to the two PII certificates of August and September 2008, the Bush Administration made clear the consequences that would follow to the United Kingdom if the court disclosed the redacted paragraphs. We were satisfied that there was evidence for the Foreign Secretary's claim in his Certificate that the court should not order disclosure because there was a risk of serious harm to United Kingdom national security. The Bush Administration was not merely taking the position that there would be a breach of the principle of control over intelligence; it was making clear that, if the court ordered disclosure, specific consequences would follow, namely the reconsideration of the intelligence sharing relationship. It was the fact that the Bush Administration was making clear that specific consequences would follow which led us to reach the decision we did. We did not make our decision on the basis of a breach of the principle of control over intelligence. We made it because of the specific consequences spelt out by the Bush Administration which we characterised, in the language of everyday life, as the threat it undoubtedly was.
(4) The submission by Mr David Rose in November 2008 as to the possible effect of a change of Administration in the US
"a US President avowedly determined to eschew torture and inhuman and degrading treatment and to close Guantanamo Bay. The Administration of Barack Obama is unlikely to protest at further confirmation that its predecessor saw the inhuman and degrading treatment of detainees as acceptable."
"Mr Rose suggests that the national security concerns no longer arise following the Presidential election. He is not in a position to give evidence to the court on that issue. But, in any event, the situation has not changed since the election of Presidentelect Obama. The concern relates to the disclosure of closed information; it is not a concern that criticism of the treatment of detainees may be levelled at the Administration of President Bush. The Secretary of State's assessment of the likelihood and severity of the damage to national security has not changed. All the developments since the Secretary of State's further certificate of 5 September 2008 have tipped the balance more firmly in favour of safeguarding UK national security."
"As we understand it, the national security objection to disclosure arises out of a concern that the US authorities would respond by limiting their security and intelligence co-operation in the event that details of their unlawful conduct were to be made public. Given that President-Elect Obama has committed to ending the current US practice of torture, it is doubtful that the incoming administration would view the disclosure of evidence of torture by an English court in the same manner as the administration of President Bush. If it is genuinely the assessment of the Secretary of State that the position will be entirely unchanged under the incoming administration, evidence should be provided to that effect. If necessary, there can be a closed annex to a further PII certificate."
Unfortunately the letter was not copied to the court. No response was made by the Treasury Solicitor on behalf of the Foreign Secretary. That omission proved, in the event, to be regrettable.
(5) The inauguration of President Obama
(6) The making available of the draft judgment
(7) Enquiries of the Obama Administration prior to the handing down of the fourth judgment
i) The Foreign Secretary was referring in the submission made on 18 December 2008 to the view that there would be no change between Administrations in respect of the general principle of control over intelligence.
ii) The Foreign Secretary had not intended to represent (as he had made no enquiry for the reasons we have set out) that there would be no change to the position on threat (or the consequences that would follow) made by the Bush Administration in relation to the redacted paragraphs, namely that if the 7 redacted paragraphs were made public, the United States would reconsider its intelligence sharing relationships with the United Kingdom.
"We haven't made any representations to the court regarding the new Administration's approach to this case. We have not approached the new Administration about these paragraphs. We haven't made any representations about their attitude and we haven't been asked by the court to do so, despite the new Executive Orders and the attitude that may now prevail in Washington."
It appears that when questions were asked of the Foreign Secretary, both by the media and in Parliament, as to whether there was any change of position of the Obama Administration, his response was made in relation to the general principle of control over intelligence and not in relation to the specific statement made by the Bush Administration that it would reconsider its intelligence sharing relationship.
(8) The initial statements made by the Obama Administration after the hand down of our fourth judgment
"The United States thanks the UK government for its continuing commitment to protect sensitive national security information and preserve the long-standing relationship that enables both countries to protect their citizens."
"I wanted to ask you about the case of the British resident Binyam Mohamed, who is currently in Guantanamo Bay. Can you tell us from the point of view of the United States Government, would it do serious harm to intelligence information sharing arrangements between the US and the UK if the documents that describe his treatment as a detainee were to be made public in the UK?"
The spokesman responded as follows:
"Well, look one of the things that I want to make clear is that we really thank the United Kingdom for, you know, its continued commitment to, you know, protecting sensitive national security information and to preserve our longstanding intelligence-sharing relationship. You know, it's the best I can tell you on that."
In response to a follow up question on the same subject, the State Department spokesman said:
"Well, look, the best way I can describe it to you is that the British have been very steadfast in agreeing to preserve the confidentiality of the intelligence that we share with them.
In response to a further question as to the attitude of the Obama administration, the spokesman said:
Well, I've just outlined to you what our position is with regard to intelligence sharing. And you know, President Obama has - as you know, through an executive order, has, you know, basically requested a review of the detention of, you know, or should I say detention conditions at Guantanamo. But beyond that, I just don't have anything more I can give you."
The understanding upon which we acted
II THE PROCEDURAL EVENTS: APRIL to JULY 2009
(1) The order for directions: further evidence served before the hearing on 22 April 2009.
i) The UK media served the statement of Jan Johannes setting out the public exchanges that had taken place immediately after the handing down of our fourth judgment, and statements of Gillian Phillips and Valerie Nazareth setting out interviews between the Foreign Secretary and various journalists.
ii) The international media served the witness statements of Morton Halperin, who had served in the Clinton, Nixon and Johnson Administrations at a high level in National Security, David Schultz, a US lawyer with extensive experience of US constitutional law relating to the media and a lecturer at Columbia University School of Law, and James Bamford, an investigative reporter.
(2) The submissions made to us on 22 April 2009 as to the position of the Obama administration
i) We were referred, for example, to the views expressed by Senator Obama (as he then was) on 11 April 2007 when he said:"The secret authorisation of brutal interrogation is an outrageous betrayal of our core values, and a grave danger to our society ... When I am President America will once again be the country that stands up to these deplorable tactics. When I am President, we won't work in secret to avoid honouring our laws and constitutions, we will be straight with the American people and true to our values."ii) The translation of that commitment into action was foreshadowed by the Executive Orders made on 22 January, two days after his inauguration.
iii) His commitment to transparency and the rule of law in relation to the treatment of detainees suspected of terrorist activity was made clear by a statement made by him on 16 April 2009 and the release of a number of memoranda issued by the United States Department of Justice's Office of Legal Counsel dealing with the treatment of Al-Qaida detainees. In his statement President Obama said:
"The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law......My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past...."iv) The memoranda that were released set out details of the treatment inflicted on detainees by the CIA and a minute legal analysis as to whether those techniques would constitute an infringement against the prohibition on torture. One of those memoranda dated 1 August 2002, from Mr J S Bybee, Assistant Attorney-General, to Mr John Rizzo, acting General Counsel of the Central Intelligence Agency, made clear that the techniques described were those employed against Mr Zubaydah, alleged to be a high-ranking member of Al-Qaida.
The remainder of the paragraph has been redacted. The redacted passage is a verbatim quotation from the memoranda made public on 16 April 2009 illustrating the detail of what is set out in the memoranda.
(2) The request of the Foreign Secretary at the hearing of 22 April 2009 for an adjournment
"The Foreign Secretary also discussed this with US Secretary of State Clinton on 2 March 2009. Secretary Clinton made clear that the position of the US Administration on the disclosure of US intelligence material had not changed."
He then stated that on the basis of these exchanges, his understanding was that the position of the United States remained as previously represented in the open and closed proceedings.
(3) Our refusal of an adjournment
(4) The further request for a further delay in handing down our judgment
"the USG will not consent to any disclosure of the underlying US intelligence documents or the information therein, consistent with the approach the USG has adopted in proceedings before its own courts. The USG will document its position in respect of the 7 paragraphs and the underlying documents in correspondence to HMG by 6 May."
"whether the threat which was so clearly enunciated on behalf of the Bush Administration by Mr Bellinger and Mr Mathias is being maintained by the Obama Administration".
(4) The provision of the statement from the United States Government on 1 and 6 May 2009
(5) The hearing on 22 May 2009
(6) The identity of the sender and recipient of the letter of 30 April 2009
"5. ..as it is in issue before us whether the communication does represent the concluded view of the Obama administration and the weight to be attached to the statements made, it is necessary that the other parties know the nature of the communication and the nature of the entities between which it passed in order that they should be able to make effective submissions.
6. Moreover, no reason has been advanced by the Secretary of State for keeping this information in relation to the identities of the entities confidential other than that it was a confidential communication and the US source has not consented to its disclosure. There is no basis on which we could conclude that the disclosure of this information could cause any risk of serious harm to national security or the international relations of the United Kingdom. Furthermore, we consider that it is necessary for these matters to be disclosed, despite the fact that the communication was originally confidential. This follows from the reliance which the Secretary of State now seeks to place upon it.
7. The difficulty with the version of the communication which has been disclosed by the Secretary of State is that it is not itself an original communication between the two governments. It is a modified version of an actual communication designed to withhold certain matters. One of these is the nature of the source entity and recipient entity. To the extent that amendments have been made to withhold the identity of the entities, they are unnecessary and unjustified in the light of our decision that there is no basis for withholding the identity of the entity which sent the letter and the identity of the entity that received it."
(7) The provision of further documents relating to the original claim
PART III: SHOULD THE REDACTED PARAGRAPHS BE MADE PUBLIC?
(1) The Certificate of the Foreign Secretary
i) The change of administration in the United States had not changed the position.
ii) He made clear his reliance on the principle of control over intelligence:
"It is my continued view that real harm to the national security of and international relations of the United Kingdom would be caused were there to be public disclosure of the seven paragraphs in issue in these proceedings. The critical issue is the principle of trust and the fundamental requirement of confidentiality that lies at the heart of intelligence relationships......in coming to my conclusion I began by paying regard to the long established practice within intelligence communities that information passed on intelligence channels cannot be publicly disclosed without the consent of the State providing it. This custom is of fundamental importance to the intelligence relationships maintained by the United Kingdom in protecting its national security. It is a custom which has always to the best of my knowledge, in practice been respected by UK courts"iii) He spelt out the consequences, as he believed them to be, of publication in breach of this principle which he considered to be a custom:
"If the court were to disclose the 7 paragraphs in the current circumstances, that would cause a loss of confidence in the United Kingdom's ability to comply with this custom (not only by the United States but also by other foreign governments) which would cause considerable damage to our national security. It would not be a question of the United States taking "umbrage", as it has been described to the court, but of the United States and other foreign governments re-evaluating the extent to which they believe they can safely provide the UK with information in light of what would be a highly significant breach by the UK of the control principle. A failure of the UK legal system to protect and respect information disclosed in an intelligence relationship will have serious consequences for the intelligence liaison."iv) He then turned to consider the position of the Obama Administration and the letter of 30 April 2009.
"The US correspondence accords with the position of the Administration communicated to me in more general terms by US Secretary of State Clinton on 2 March 2009 in my discussions with her as indicated in paragraph 14 of Mr Bethlehem's correspondence to the Court of 24 March 2009. She was clear then that the position of the new US Administration on the disclosure of US intelligence material had not changed, indicating that it was an inviolable principle that one State should not disclose publicly the intelligence information shared with it by a liaison partner.Since receipt of the US correspondence on 1 May 2009, the matter also arose for discussion when I met Secretary of State Clinton in Washington on 12 May 2009. She was fully aware of the issues and reiterated the US position on public disclosure in this case had not changed with the change in Administration, the protection of intelligence going beyond party politics. She indicated that the US remained opposed to the public disclosure of US intelligence information in this case. The US Secretary of State indicated further that public disclosure in this case would affect intelligence sharing and would cause damage to the national security of both the US and the UK. Comment by those representing the National Security Council at the same meeting made it clear, if further clarification was needed, that this was also the position of the White House." (emphasis added)v) He concluded that there was no difference in substance between the earlier and more recent correspondence. He then referred to the fifth paragraph of the CIA letter of 30 April 2009 set out at paragraph 79.vi) below and observed that this was central to his assessment.
vi) He set out at length the factors that favoured making the 7 redacted paragraphs public and those that weighed against that course.
vii) The certificate was accompanied by a Sensitive Schedule; it set out detailed reasons why the identity of the sender and recipient of the letter of 30 April 2009 should not be disclosed and why its full content should not be disclosed. As we have set out at paragraph 54, there is nothing further of relevance in the letter. It set out further arguments in relation to the principle of control both from the perspective of the US and UK intelligence services all of which are addressed in this open judgment.
viii) He also sets out reasons why the intelligence sharing arrangements are so valuable. No one has doubted this or the impact the loss of intelligence sharing would have.
(2) The status in law of the Certificate.
(3) The submission of BM and the UK and international media in relation to the lack
of evidence for the Foreign Secretary's certificate
i) As everyone had been at pains to point out, the relationship between the United States and the United Kingdom had been very close. Quite apart from the bond of two societies founded on the Rile of law and sharing democratic values and a common legal heritage, the United States and the United Kingdom had been close allies in two World Wars and the United Kingdom had supported the United States in the invasion of Iraq and was currently fighting alongside the United States in Afghanistan.
ii) The text of the CIA letter dated 30 April 2009 had been very carefully drafted. It referred to what could happen if the court made the 7 paragraphs public. There was no reference in any passage as to what would happen - no threat or statement of consequences which would follow.
iii) The Obama Administration had made public on 16 April 2009 the CIA memoranda dealing with interrogation techniques to which we have referred at paragraph 38.iv); President Obama had made clear that he had prohibited such techniques as they undermined the moral authority of the United States and did not make it safer.
iv) The evidence of Mr Halperin was that it is well understood between the United States and the United Kingdom that, although intelligence provided would not be disclosed without the consent of the state supplying it, that principle could not be an absolute principle, but was subject to a court deciding to order disclosure. His evidence was that where requests for intelligence information provided by other states such as the United Kingdom were made under the provisions of United States law, the commitment of the Executive branch of the United States Government was to resist such requests, but that it was well understood that such efforts might not always be successful and that the US courts might order such information to be disclosed under the provisions of US law including the Federal Freedom of Information Act (5USC § 552). The United States Government recognised and accepted that a similar outcome could result under the laws of the United Kingdom. His evidence was specifically supported by the more detailed analysis of United States law contained in the evidence of Mr David Schultz.
v) The Foreign Secretary had himself made clear in his second PII Certificate that he would have been prepared to hand over the underlying 42 documents, if the United States Government had not made them available. It followed therefore that he accepted that the principle of control was not inviolable and that the United States Government knew that there were circumstances in which much more sensitive information than that contained in the 7 paragraphs could have been provided against its wishes. No adverse consequences had followed.
vi) It was therefore inconceivable that the Obama Administration would actually reconsider the intelligence sharing relationship, thereby putting the citizens of the United Kingdom at risk.
vii) Neither the Foreign Secretary's recollection of what Secretary of State Clinton had told him on 12 May 2009 nor the subsequent note of the conversation referred to at paragraph 90.ii) could supersede the letter from the CIA, as General Jones had made it clear in his letter of 30 June 2009 that what was in the letter of 30 April 2009 represented the concluded view of the Obama Administration.
(4) Our conclusions
(i) The principle of control
i) The Foreign Secretary was prepared to consider disclosing to BM's lawyers the 42 documents. At paragraph 15 of his first PII Certificate dated 26 August 2008, the Foreign Secretary stated that he might have reached a different conclusion with regard to the release of the 42 documents, if the United States had not agreed to make the documents available.
ii) The evidence of Mr Halperin (to which we have referred at paragraph 69.iv) is unchallenged. Secretary of State Clinton told the Foreign Secretary on 2 March 2009 that the principle of control over intelligence was inviolable (see the extract from the PII Certificate set out at paragraph 66.ii) above and the note of the meeting which we set out at paragraph 90.i) below). However, we cannot accept the oral assertion, even from the Secretary of State, when the detail of the evidence of Mr Halperin has not been addressed in the evidence given on behalf of the Foreign Secretary.
iii) In the exceptional circumstances of the present case, it would not have been possible to put a significant part of the narrative of our original first judgment into the public domain had the principle been absolute. For example, the information at paragraphs 10 and 11 of our first judgment as to the arrest and identity of BM was information provided to the United Kingdom authorities by the United States authorities. No objection was made to the publication of such information.
i) It is necessary and justifiable:
a) It was BM's case that the United Kingdom Government had facilitated or become mixed up in wrongdoing of the United States, alleged to amount to cruel, inhuman or degrading treatment or torture.b) Although it was accepted by the Foreign Secretary that there was an arguable case of such wrongdoing by the United States, it was part of BM's case that the United Kingdom Government knew of that wrongdoing and in the light of that wrongdoing facilitated further wrongdoing by interviewing BM when it knew of the treatment that had been accorded to BM and thereafter providing information to the United States authorities about BM.
c) It was therefore necessary for us to explain what the United Kingdom Government actually knew about what was alleged to be cruel, inhuman or degrading treatment or torture, in particular what Witness B knew before he interviewed BM whilst BM was held in Pakistan and what the SyS and others knew when they provided further information to the United States to be used in the interrogation of BM whilst he was under the effective control of the United States authorities.
d) As the knowledge of Witness B was in dispute, it was necessary to refer to the source of the information - that is to say information supplied to the SyS by the United States authorities as to what officials of the United States Government admitted actually doing to BM in the period immediately before Witness B interviewed BM. It was not possible, as we have done elsewhere, simply to state that the SyS was aware of a fact; it was necessary to set out the source of that information as Witness B disputed what he knew about the treatment of BM.
e) As we pointed out at paragraph 72 of our fourth judgment the suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law. Championing the rule of law, not subordinating it, is the cornerstone of democracy.
ii) It is exceptional. The proceedings in this case are, we believe unprecedented. We have addressed the need to refer to information supplied by the United States. The information related to matters of great public importance for reasons we set out in our fourth judgment
iii) As between the United States and the United Kingdom, it is accepted that the court of each State can order there be put into the public domain information otherwise subject to the principle of control. The information with which we are concerned in this case is derived solely from the United States and relates solely to the activities of officials of the United States. It is not information supplied by any other State or relating to the activities of any persons acting on behalf of other States. Both the United States and the United Kingdom have a ready understanding of the necessary qualification of the principle of control in the case of court ordered disclosure.
i) As we pointed out at paragraph 68 of our fourth judgment there is nothing in the redacted paragraphs that would identify any agent, facility, secret means of intelligence gathering, or any other matter relating to intelligence. There would therefore be no disclosure of any matter relating to intelligence. No court would contemplate putting a matter of that kind into the public domain.
ii) This sub-paragraph has been redacted. The redacted subparagraph explains that what is in the seven paragraphs redacted from our first judgment is akin to what is already public.
iii) The fact that any such breach would now receive publicity in the context of the current debate over action by the British Security Services carried out with knowledge of the use of unlawful interrogation techniques, would not make any infringement "highly significant".
(ii) The consequences of pulling the paragraphs into the public domain
(a) The letter from the CIA and General Jones
i) As we have set out at paragraph 54 above, it was expressly confirmed to us that there was nothing additional to the open text in the terms of the full text of the letter from the CIA which added to the evidence on which the Foreign Secretary relied.ii) It was submitted to us on behalf of the Foreign Secretary that the Foreign Secretary and his advisers, including the SIS to whom the letter was addressed, were better placed in interpreting the letter than other persons and the court. The Foreign Secretary's view, based on such advice, was that "could" should be read as meaning "would". The letter therefore contained an explicit statement of consequences.
iii) We cannot accept the view that the Foreign Secretary or his advisers are better placed than other persons or indeed ourselves to interpret the CIA letter. It is clear that the CIA letter was written for the court with the express purpose of providing the views of the Obama Administration on the consequences of disclosure by us of the 7 paragraphs. The letter from General Jones again makes clear that the CIA letter was intended to be read by the court. The United States Administration is well used to drafting documents to be provided to courts which operate on the same common law principles as our own. Both letters are written in ordinary English. They do not require expert interpolation to be placed between the drafter and the court.
iv) The first three paragraphs of the letter set out the background and refer to the previous occasions on which the United States Government had indicated its strong objection to public disclosure of "highly sensitive information". They also refer to the argument being made that the publication of the CIA memoranda on interrogation techniques on 16 April 2009 might be an indication that the United States Government would not object to the disclosure of the 7 paragraphs.
v) The fourth paragraph of the CIA letter stated:
"The seven paragraphs at issue are based upon classified information shared between our countries. Public disclosure of this information, reasonably could be expected to cause serious damage to the United Kingdom's national security. Specifically, the 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. Among the most crucial sources and methods in the collection of foreign intelligence are the relationships the United Kingdom maintains with foreign countries. Through these relationships, the United Kingdom's intelligence and security services are able to provide national security and foreign policy officials with information that is critical to informed decision making: information that the United Kingdom cannot obtain through other means. Without the assistance of these foreign governments, it is almost certain that the United Kingdom's ability to identify and arrest suspected terrorists and to disrupt terrorist plots would be severely hampered. Quite clearly, the information that the United Kingdom obtains from the United States and other foreign governments is a critical component of the United Kingdom's counterterrorist efforts." (Emphasis added.)
We have emphasised the words on which BM and the media relied in support of their contention that the letter did not contain any statement of what would happen as opposed to what could happen. It is important to note that the seven paragraphs relate to information derived from documents sent by the United States authorities about actions of United States officials and not those acting for other States whose understanding of the principle of control over intelligence may be different. Publication would therefore not have any impact on the provision of information by other States.vi) The fifth paragraph of the CIA letter stated:
"The cooperation and sharing of intelligence between the United Kingdom and United States, as well as with other foreign governments, exists under strict conditions of secrecy. Public disclosure by the United Kingdom of information garnered from such relationships would suggest that the United Kingdom is unwilling or unable to protect information or assistance provided by its allies. As a consequence, if foreign partners learn that information it has provided is publicly disclosed, these foreign partners could take steps to withhold from the United Kingdom sensitive information that could be important to its safety and security. Any decreased cooperation from those foreign partners would adversely impact counterterrorism missions and other endeavours." (Emphasis added.)
It is self evident that intelligence sharing is carried out on the basis of secrecy. Making such information public could infringe the principle of control in relation to other States. If unexplained or unjustified, it could suggest that the United Kingdom was unable or unwilling to protect information. It is also self evident that a consequence could be that there would be a withholding of sensitive information. Nothing in the paragraph states that this would be the case if the 7 paragraphs were made public, particularly given the exceptional circumstances in which the information would be put into the public domain.vi) The sixth paragraph states:
"Quite distinct from the significant harm to the U.S.-U.K. partnership if the seven paragraphs—or underlying documents—are released, is the impact of President Obama's declassification of the OLC memoranda. The memoranda focused solely on intelligence-gathering methods previously utilized by the CIA. In releasing the memoranda, President Obama made clear his administration's intention that the enhanced interrogation techniques discussed therein would no longer be utilized by the United States Government. Neither in the memoranda, nor in any statements of the administration accompanying their release, was reference made to the identity of any foreign governments 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."The 7 paragraphs, as we set out at paragraphs 22 and 69 of our fourth judgment and paragraph 73.iii) and 79.vii) of this judgment, relate to admissions of what officials of the United States did to BM during his detention in Pakistan. The paragraphs do not contain anything about actions or assistance by other persons and in particular by the Government of Pakistan. As the paragraphs relate to the actions of the United States itself, disclosure of the redacted paragraphs is consistent with the publication of the CIA interrogation technique memoranda (to which we referred at paragraph 38.iv)) and does not publicise any information about foreign States.
viii) The seventh paragraph states:
"Public disclosure of the information contained in the seven paragraphs withheld from the High Court's open decision, as well as the documents from which the information was drawn, could likely result in serious damage to U.K. and U.S. national security. If it is determined that your Service is unable to protect information we provide to you 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 future." (Emphasis added.)The United States Government does not explain how disclosure of information in relation to the action of its own officials could damage United States national security. It is therefore difficult to see how it would damage that security or for the reasons we have given would cause a real risk of serious damage to the national security of the United Kingdom. The statement as to the review of the sensitivity of information provided is the furthest that this letter goes, but significantly, given the carefully chosen language, it does not suggest that there would be a curtailment of the supply of information.
The remainder of the paragraph has been redacted. The redacted passage explains (1) the relationship of what has been placed into the public domain to what is in the seven paragraphs redacted from our first judgment, (2) why in the light of that relationship it is impossible to believe that President Obama would take action against the United Kingdom and (3) why publication of the seven redacted paragraphs is necessary to uphold the rule of law and democratic accountability.
(b) The evidence in relation to Secretary of State Clinton
"The Foreign and Commonwealth Office has informed members of my staff that in the case of the Queen on the application of Binyam Mohammed v. Secretary of State for Foreign and Commonwealth Affairs, the court has questioned whether the April 30, 2009 letter from a senior United States official, appointed by President Obama, is indeed the official position of the United States Government. Members of my staff reviewed that letter prior to its dispatch and have been following this case, and the court's actions, closely. The author and recipient of the former letter were chosen because they are best able to recognize and articulate the concerns and the potential for damage to the national security of both of our countries in the event the court refuses to protect the information at issue.
I want to thank you, and your government, for taking all necessary steps to help protect sensitive U.S. information. To allow United Kingdom officials to correct any misperception the Court and parties to this case may hold, allow me to directly, and emphatically affirm that a senior United States official, appointed by the President, indeed speaks on behalf of the United States Government."
i) Meeting of 2 March 2009: Note of the Private Secretary to the Foreign Secretary:"Guantanamo"11. The Foreign Secretary explained the concern in the UK over the Binyam Mohamed case.We were grateful for the Administration's decision to return Mr Mohamed to the UK. We would have no objection to the US making public the 42 intelligence documents related to the case. We would welcome any further details on the review of state secrets privilege.12. Clinton confirmed that it was an inviolable principle that it should be for the US to decide on the release of its own intelligence material. She would arrange for US experts to provide a briefing on the review. The new Administration simply didn't know what information there was on the files."ii) Meeting of 12 May 2009: Note of the Principal Private Secretary to the Foreign Secretary dated 13 May 2009:
"1. On 12 May the Foreign Secretary raised the Binyam Mohamed legal case with Hillary Clinton. Clinton was accompanied by Dan Fried (Assistant Secretary, State Department) and Tobin Bradley (NSC); the Foreign Secretary by Nigel Sheinwald, Ian Bond and me.2. The Foreign Secretary said that the Court had questioned the continuing non-release of the US documents in the case given (1) the arrival of the Obama Administration, and (2) the release of the 4 DoJ memos. The Court had said it could not see how, in the light of the publication of these memos, anything in the US papers could be regarded as sensitive.3. The Foreign Secretary said that the British Government would continue to make the case that it continued to be an inviolable principle of intelligence co-operation that we did not give away other peoples secrets, and that doing so would cause serious harm to the UK/US intelligence relationship.
4. Clinton (who was clearly well aware of the case and the associated issues) said that the US position had not changed, and that the protection of intelligence went beyond party or politics. The US remained opposed to the UK releasing these papers. If it did so it would affect intelligence sharing. This would cause damage to the national security of both the US and UK.
5. Bradley said that this was also the position of the White House. They appreciated that this left the British Government in a difficult situation. But they did not see it as being affected by the release of the DoJ memos"iii) Meeting of 12 May 2009: Further note of 14 May 2009 addressed to Mr Bethlehem QC in response to a request for clarification:
"For clarity, I should record that both Clinton and Bradley were explicit that the US Government was opposed to the release by the UK of any US intelligence material, whether in the form of the actual documents or the 7 summary paragraphs"
i) The statements of both the Foreign Secretary and Secretary of State Clinton proceeded on the erroneous assumption that the principle of control of intelligence was inviolable for the reasons we have set out above.ii) The discussion between the Foreign Secretary and Secretary of State Clinton on 12 May 2009 was directed at the 42 documents which plainly contain important intelligence material and not at the 7 paragraphs which do not. That is made clear by a note which expressly records the Foreign Secretary's statement that the United Kingdom did not give away other people's secrets and Secretary of State Clinton's response that the protection of intelligence went beyond party or politics. Such statements can only have applied to the 42 documents that contained intelligence and not the 7 paragraphs. Although the further note sent to Mr Bethlehem QC to clarify the principal note stated that the same considerations applied to the 7 paragraphs, it is difficult to understand how that issue can have been properly discussed or analysed by those present at the meeting. The note makes no reference to any discussion on the critical distinction between the 42 documents which contain intelligence information and the 7 paragraphs which do not contain anything of an intelligence or secret nature. It cannot be suggested that information as to how officials of the US Government admitted treating BM during his interrogation is information that can in any democratic society governed by the rule of law be characterised as "secret" or as "intelligence".
iii) It is therefore very difficult objectively to discern any rational basis for the conclusion that the making public of 7 paragraphs (as opposed to the documents themselves) was action that would justify affecting intelligence sharing and putting the lives of British citizens at risk. On the contrary, a proper analysis of what was contained in the 7 paragraphs could not have led to such a statement being made, as no secrets and nothing of an intelligence nature was being made public.
iv) We therefore conclude that the statement made by Secretary of State Clinton that intelligence sharing would be affected was made without a proper analysis or understanding of what the 7 paragraphs contain.
(v) The good faith of the Foreign Secretary
The application of the balancing test.
The remainder of this paragraph has been redacted. The redacted passage explains the reasons why the position is different because of the action of President Obama in releasing the memoranda (at paragraph 38 iv) above) and because the seven paragraphs redacted from our first judgment do not refer to anything about actions of authorities of the State of Pakistan (as set out at paragraphs 79 vii above).
i) The background of the relationship between the United Kingdom and the United States to which we have referred.ii) The fact that this court would be doing no more than putting historic material into the public domain against the wishes of the United States Government.
iii) The fact that there would be no infringement of the principle of control for the reasons we have set out.
iv) The fact that the statement of Secretary of State Clinton was based on a misunderstanding and lack of analysis of what was contained in the 7 paragraphs.
We cannot accept looking at the matter objectively on all the evidence (which is fully summarised in this judgment) and as a matter of reality, that there is a real risk that the United States would reassess its intelligence relationship or reduce its intelligence sharing if we made the 7 paragraphs public.
"The public interest has many facets and it would be deplorable if the assessment of the public interest were to become the exclusive province of the executive itself. Secrecy and security have to be balanced against the legitimate demands for an informed public opinion which is, when all is said and done, the essential element in a country which claims to be democratic"
We have therefore concluded that, as the public interest in making the paragraphs public is overwhelming, and as the risk to national security judged objectively on the evidence is not a serious one, we should restore the redacted paragraphs to our first judgment by adding these to paragraphs 87 and 88 respectively. We shall therefore re-issue our first judgment with the paragraphs restored.
PART IV: APPLICATION TO MAKE PUBLIC THE CLOSED JUDGMENT
PART V THE GENERAL POSITION IN RELATION TO CLOSED SUBMISSIONS AND JUDGMENTS
(1) The difficulties faced in the law reporting of closed proceedings
i) Law Reporters struggle to understand the scope of the submissions made when there is no record of what was said in the closed hearing.ii) It is often impossible to establish which materials are open and which are closed. Reporters fail to get access to documents to which they are entitled, as had happened in the instant case.
iii) As law reporters cover other cases, it is important that sufficient notice of closed hearings is given.
iv) When a law reporter cannot be present for the argument, the law reporter often checks the argument by listening to the tape. It is therefore necessary that there be a clear record of that portion of the tape that is open and that which is closed.
i) The advocate for Her Majesty's Government should prepare a summary of the main legal submissions by the parties to be disclosed to the law reporters.
ii) Skeleton arguments (redacted where necessary) should be made available to law reporters. In the previous proceedings in this case, counsel made these available, but this was the exception rather than the rule.
iii) The court should record in its open judgment the legal submissions made. In the earlier judgments in these proceedings this had been done with the assistance of counsel following the submissions made by the ICLR to which we referred at paragraph 19 of our fourth judgment.
iv) A schedule should be kept of open material so that reporters knew what they were entitled to receive.
v) Better notice should be given and a clear record kept of which part of the hearing was open and which part closed.
(2) The records and release of closed judgments
Conclusion