State Secrets Privilege Is Defeated...In Britain

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The decision by the government of the United Kingdom to release seven previously redacted paragraphs describing U.S. interrogators' treatment of Binyam Mohamed is a win for government accountability and a blow to state secrets -- in the United Kigdom. The Court of Appeals in the UK decided to release evidence gathered and summarized by the UK government, over their objections -- and over the objections of the U.S. Remember the highly choreographed leaks by U.S. intelligence officials suggesting they could no longer share information with Britain if the British courts force that information out? It was all a PR ploy, and one designed to pressure the sovereign courts of another country, but 10 Downing Street was equally as eager to keep the information suppressed.

Officially, the UK issued a public interest immunity certificate, which is analogous to a U.S. prosecutor invoking the State Secrets privilege in court. The public interest in question: if the U.S. was concerned about info leakage, they might not share counterterrorism info with MI5 or MI6 or the Special Branch, and Britain could be endangered. A lower court didn't buy it, and an appeals court today upheld the argument. Instead of appealing, Gordon Brown's government decided to let the decision stand -- a reflection of internal British politics and the ongoing British inquiry into the Iraq War, which has softened many a politician's resolve to protect secrets.

Here is the link to the Foreign Office website, which has published the information in question:

[It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 as part of a new strategy designed by an expert interviewer.

v)  It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation.  The effects of the sleep deprivation were carefully observed. 

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him.  His fears of being removed from United States custody and "disappearing" were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews 

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the inter views were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972.  Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities]"

The interesting paragraphs include information about the date that sleep deprivation was first used -- May of 2001 -- and an acknowledgment by the court that such treatment, if committed by the UK, would violate international law.

"From a state secrets perspective, however, this represents a welcome reassertion of the primacy of the rule of law, and a rejection of the knee-jerk responses of other courts that when the U.S. government claims a national security issue is at stake, all attempts at accountability are quashed," says Sudha Setty, a professor at Western New England College's School of Law. She's written a law review article discussing the SSP from the U.S. and international perspectives. It's worth a read.

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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