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British Court Blasts Inaction, Says Documents Are Vital to Guantanamo Case
By Peter Finn
Washington Post Staff Writer
Thursday, October 23, 2008; A14
The British High Court yesterday condemned the U.S. government's failure to turn over intelligence documents that could support the claims of a British resident held at Guantanamo Bay, Cuba, who has argued that statements he made confessing to terrorism resulted from torture and are, therefore, worthless.
In a judgment, the British jurists hinted that unless the 42 documents are handed over quickly to the defense counsel as part of a habeas corpus proceeding in U.S. District Court, the London court might take that step itself, despite the threat of damage to ties between the two countries.
The court noted that the United States has said "it will reconsider the intelligence relationship with its oldest and closest ally if we, as a court in England and Wales, order the documents be provided . . . to enable justice to be done."
"This matter must be brought to a just conclusion as soon as possible, given the delays and unexplained changes of course which have taken place on the part of the United States Government," wrote Lord Justice Thomas and Justice Lloyd Jones, adding that they hope the matter will be resolved at a federal court hearing in Washington on Oct. 30.
"We are pleased that the High Court has stayed proceedings in the U.K. and has deferred to the process in U.S. federal court," a Bush administration official said.
"We do have concerns," the official added, "that a U.K. court might order the disclosure of U.S.-provided intelligence without our permission, just as one would expect the U.K. to have concerns if a U.S. court were to order the disclosure of U.K.-provided intelligence without the U.K.'s permission."
Binyam Mohammed, a 30-year-old native of Ethiopia, was arrested in Pakistan in April 2002. He says he was tortured while in Pakistani custody before being secretly transferred by the United States to Morocco, where, he says, he was again tortured, including having his penis cut with a razor blade. In January 2004, Mohammed was transferred to Afghanistan. He was sent to Guantanamo that May. The U.S. government has said there is no basis for his allegations of torture.
Shortly before he was taken to Morocco, Mohammed was interviewed by a British security service officer. In May of this year, after learning of that meeting, Mohammed's attorneys sought any information that the British government might have that could assist in their client's defense. The British government said it found 42 potentially relevant documents.
In a series of rulings, one of them classified, the British High Court said Mohammed's attorneys were entitled to the material, although it could not be released to the public.
The documents, which include communications between U.S. and British intelligence agencies, are "essential to his defense as they provide the only independent evidence that is potentially capable of helping him undermine the case against him," the court wrote. The judges said the United States and Britain share the principle that "involuntary confessions obtained by torture or cruel, inhuman or degrading treatment are inadmissible at trial."
The British government said that although there was an "arguable case" that Mohammed had been tortured, turning over the documents in London would damage relations with Washington. In a written statement to the court, British Foreign Secretary David Miliband said that the material should be handed over within the American judicial system and that U.S. officials had agreed in writing to do so if charges against Mohammed were referred by the Pentagon to a military court.
"The United Kingdom Government will continue to engage with the relevant U.S. authorities to ensure that such disclosure does indeed take place," Miliband wrote.
Military prosecutors swore out charges against Mohammed in May, including the accusation that he was involved in plans to detonate a radioactive "dirty bomb," among other attacks inside the United States. The charges, however, were not approved by the Pentagon official in charge of military commissions. On Tuesday, the charges were dismissed. Earlier this month, the Justice Department withdrew the most serious allegations against Mohammed in a habeas corpus proceeding in Washington.
U.S. officials then allowed Mohammed's attorneys to see seven redacted documents, but the British court said that is insufficient.
"All of the documents need to be read in sequence to see the proper context," the court wrote yesterday, noting that the British government had acknowledged that "all are relevant and potentially exculpatory."