UPDATE: English High Court and Guantanamo Bay

pic Royal Courts of Justice.JPG

By Tobias Thienel

I reported recently that the English High Court had found that one of the inmates and likely future indictees at Guantanamo Bay had a right to be given all information that the UK Foreign Office and MI6 had on his alleged ill-treatment by US officials. The Court held at the time that the claimant had such a general entitlement, but that the Foreign Secretary remained free to serve a certificate of Public Interest Immunity removing the claimant’s right, on the grounds that disclosure would damage the national security of the United Kingdom.

The Foreign Secretary served such a certificate, but the High Court held in a further judgment – of 29 August, published today – that he had failed to take into account all relevant considerations, as was his duty. In particular, he failed to have due regard to the severity of the claimant’s allegation, namely that he was subjected to torture and inhuman and degrading treatment. The High Court therefore gave the Foreign Secretary until Friday, 5 September (tomorrow), to revise his certificate, after which the Court will decide whether to accept that there should be no disclosure: R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 2100.

Unsurprisingly, it was and will remain the Foreign Secretary’s position that disclosure would endanger the – important – US-UK intelligence sharing relationship, thus raising an issue of British national security. I will have more to say on that when the final decision of the Court comes out. Suffice it to note now that senior figures in the US State Department have very forcefully made that point, after the High Court’s original judgment came out. Looks like that created a bit of a stir in DC, then.

[The statements, by John B. Bellinger III., Legal Adviser to the Department of State, and Stephen Mathias, his Assistant, are set out in the decision reported today.]

Even more remarkably, the new decision shows – and notes expressly – that there has been a change of policy in the US. The information at issue will now, with some redactions, be disclosed first to the Convening Authority of the Military Commissions, and later to the claimant’s military defence counsel. His civilian counsel will be allowed access to the information if and when the Military Commission so decides. That is, as their Lordships’ judgment notes, a welcome change. Whether it is enough remains to be seen. Watch this space.

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