Statement to the House of Commons on Binyam Mohamed

05 Feb 2009

Foreign Secretary, David Miliband, made a statement in the House of Commons on the case of Mr Binyam Mohamed.

Foreign Secretary, David Miliband, made a statement in the House of Commons on the case of Mr Binyam Mohamed.

Read the statement

With your permission, Mr Speaker, I would like to make a statement to the House on the case of Mr Binyam Mohamed, following the judgment handed down yesterday in the High Court.

The fundamentals of the case are as follows. Mr Binyam Mohamed, an Ethiopian national, formerly resident in the UK, was arrested in Pakistan in 2002. In 2004 he was transferred to Guantanamo Bay. Until August 2007 the Government had taken responsibility for the release and return of British nationals from Guantanamo Bay. In August 2007, my Rt Hon Friend the Home Secretary and I wrote to then US Secretary of State to seek Mr Mohamed’s release from Guantanamo Bay and his return to the United Kingdom, along with four other former UK residents. Over the last eighteen months, we have mounted what the Court has called a strenuous effort to acheive that objective. We have throughout kept Mr Mohamed’s family and lawyers informed of his situation and our efforts to resolve it.

The United States brought terrorist charges in May of last year against Mr Mohamed before a Military Commission. Mr Mohamed subsequently brought proceedings against the British Government in an effort to secure the disclosure to his legal counsel of any material held by the British Government that might assist in the defence of his case before the Military Commission. Having looked through all the material we held across government, we provided through the appropriate legal and statutory mechanisms a great deal of both classified and unclassified UK information. Amongst the information we held, however, we also identified some highly classified US intelligence material. We took the view that the material was potentially exculpatory and ought to be disclosed to Mr Mohamed’s legal counsel. As this was sensitive US government material, we informed the relevant US authorities of our view. We also informed Mr Mohamed’s counsel. We have worked since then to ensure that all the material was indeed made available to Mr Mohamed’s legal counsel by the US Government through their own procedures.

Across the four judgments handed down by our High Court since last August, the Court has explicitly recognised the efforts of the Government both to secure Mr Mohamed’s release and return and to ensure that the material that we considered ought to be disclosed to him was indeed disclosed. This latter objective was achieved some time ago when the US Department of Justice disclosed the material to Mr Mohamed’s counsel in the course of proceedings in the US Federal Courts.

At the heart of Mr Mohamed’s case have been allegations that he was tortured by foreign government officials in a number of locations. It is the longstanding policy of the Government that we never condone, authorise or cooperate in torture. I repeat that commitment today. We also take seriously all allegations of torture and investigate them fully. Allegations have been made in the course of these legal proceedings that the UK is in some way complicit in the alleged mistreatment of Mr Mohamed. Following the Court’s judgment of 22 October, on 23 October last year my Rt Hon friend the Home Secretary referred the question of possible criminal wrongdoing to the Attorney General . This is now being considered by the Attorney General. This is, as the Court acknowledged yesterday, the proper democratic and legal process.

Yesterday’s judgment was not about that. It was about whether an English Court should in the interests of public debate and understanding, order the disclosure to the general public of sensitive foreign intelligence shared with our own intelligence agencies on the strict understanding that it would not be released.

As anyone who has read the judgments will appreciate, in circumstances in which Mr Mohamed’s access to the information relevant to his defence had been secured, the sole question for my consideration concerned the publication of classified material received from a foreign intelligence service, in this case the US.

The question at issue was whether intelligence provided, on a confidential basis, by one state to another, in absolute trust that it will be kept secure, may be disclosed to the public by order of a foreign court; or whether instead, the breach of trust would be so grave as to endanger intelligence sharing relationships and therefore affect national security. In this case it was US intelligence and an English court. But it could just as easily be British intelligence in a foreign court.

I had before me the clear and unanimous advice of all key UK Departments and Agencies. As the Court observed yesterday: “Intelligence is shared on the basis of a reciprocal understanding that the confidence in and control over it will always be retained by the State that provides it. It is a fundamental part of that trust and confidentiality which lies at the heart of the relationship with foreign intelligence agencies”.

Our intelligence relationship with the United States is vital to the national security of the United Kingdom. It is essential that the ability of the United States to communicate such material in confidence to the UK is protected; without such confidence they will simply not share that material with us. The same applies to our intelligence relationships with all those who share intelligence material with us. And what applies to them also applies to us. We share intelligence with a large number of countries. We do so to protect British citizens. And we do so on the basis that the material will not be put into the public domain against our wishes. To state the obvious, were our own classified information to be disclosed in this way, it could compromise our work, our sources and our security.

It therefore was – and remains – my judgment that the disclosure of the intelligence documents at issue by order of our courts against the wishes of the US authorities would indeed cause real and significant damage to the national security and international relations of this country. For the record, the United States authorities did not threaten to “break off” intelligence cooperation with the UK. What the United States said, and it appears in the open, public documents of this case, is that the disclosure of these documents by order of our Courts would be “likely to result in serious damage to US national security and could harm existing intelligence information-sharing between our two governments” . That’s a simple affirmation of the facts of intelligence cooperation. It is worth noting that last night, in response to the High Court’s judgment, the US National Security Council reaffirmed the longstanding US position concerning the importance of protecting sensitive national security information and preserving the long-standing intelligence-sharing relationship between our two countries.

Mr Speaker, the Court has concluded that there is no, I repeat no, prejudice to Mr Mohamed’s case as a result of yesterday’s judgment. The information in question is available to his US legal counsel. As the court said: “upholding the rule of law…is most unlikely to depend on making the information public”.

The issue at stake is not the content of the intelligence material but the principle at the heart of all intelligence relationships: that a country retains control of its intelligence information and that it cannot be disclosed by foreign authorities without its consent. That is a principle we neglect at our peril.