Press Release by Leigh Day & Co Solicitors:
Tuesday 4th May 2010

COURT OF APPEAL OVERTURNS GOVERNMENT’S ATTEMPT TO DEFEND GUANTANAMO TORTURE CLAIMS WITH SECRET EVIDENCE :

The Court of Appeal has today “firmly and unambiguously” rejected the government’s argument that it is open to a Court, in the absence of statutory power, to order a “closed material procedure” in relation to the trial of an ordinary civil claim, such as the claims of former Guantanamo detainees brought against the British Security Services and various government departments for alleged complicity in their torture and maltreatment over several years.

On 18 November 2009, in a highly controversial judgment, Mr Justice Silber ruled that in principle it was possible for a Court to allow a party to rely on closed evidence and closed pleadings in a civil claim for damages. As the law currently stands, if the government successfully claims “public interest immunity,” excusing them from disclosing material in the civil courts (for instance, on the grounds of national security) they are then not allowed to rely on the material. The government’s proposals would have meant that they would be able to rely on such evidence, the judge trying the case would be able to see it and make a judgment dependant on such evidence but the other party and their legal team would not be able to see it, respond to it or cross-examine witnesses on it . This was particularly troubling in the context of such serious allegations, leading the Claimants to appeal against the judgment.

Today, Lord Neuberger (Master of the Rolls), Lord Justice Maurice Kay and Lord Justice Sullivan unanimously agreed with the Claimants that such a procedure would undermine some of the most fundamental principles of the common law and fly in the face of the Civil Procedure Rules.

Their Lordships referred to the “cardinal requirement that the trial process must be fair, and must be seen to be fair… which under the common law means that a trial is conducted on the basis that each party and his lawyer, sees and hears all the evidence and all the argument seen and heard by the Court.” They also referred to another fundamental principle of English law that a party to litigation should know the reasons why he won or lost.

Their Lordships commented that “[i]f the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”

Speaking after the judgment was delivered today, Sapna Malik, Partner at Leigh Day & Co, acting for Binyam Mohamed said: “We are delighted that the Court of Appeal has fully accepted the Claimants’ arguments that the government has been seeking to introduce, via the backdoor, unconstitutional and manifestly unfair measures to defend these most serious of allegations, which the Courts must be emphatically resist.”

Clive Stafford Smith, Director of Reprieve, who acted for Binyam Mohamed in the United States, said: “Perhaps the most dangerous legacy of the ‘War on Terror’ is a creeping secrecy that threatens to shutter the workings of British justice away with access limited to a privileged few. We applaud the Court of Appeal’s excellent decision to keep our courts open, so that the British public may continue to see justice done in their name. It is crucial that our government accept this ruling, and stop hiding the mistakes of the ‘War on Terror’ years. We cannot learn from history unless we know what it is.”

The Tragedy of Guantánamo

On 10 June 2006 it was announced that three detainees at Guantánamo Bay , two Saudi Arabians and one Yemeni, had taken their own lives. The US Deputy Assistant Secretary of State for Public Diplomacy issued a brutal response. She said that the deaths were the strategy of Islamic extremism and that they were a good PR move by people who showed no respect for people's lives. US Navy Rear Admiral Harry Harris said the suicides were ‘not an act of desperation' but ‘an act of asymmetric warfare'.

It is, of course, the US government which has shown no respect for people's lives. Official figures list 25 failed suicide attempts at Guantánamo to date, but defence lawyers estimate the figure is higher. Former detainee Moazzam Begg, answering questions at Social Forum Cymru in Aberystwyth on 30 April 2006, described how, suffering mental and physical torture, he himself had experienced a breakdown. This was not, however, the point that he had wished to underline in the talk he gave (following the publication of his book Enemy Combatant, Simon & Schuster). Indeed, he spoke very little of his own suffering, emphasising instead the need for justice for the detainees still held. He said that they should be given political asylum or refugee status, or brought to trial. As his father Azmat Begg had said whilst speaking at Aberystwyth two years previously, when campaigning so hard for the release of his son: it is not mercy that is being asked for, but justice.

Moazzam Begg said that his abduction and those of his fellow detainees was outside the rule of law. The status that he was given of “enemy combatant” was the mechanism that was used to deny him his rights, either as a citizen or as a prisoner of war. Moazzam Begg was left, as he describes in his book, virtually incommunicado with no access to the outside world, locked up without charge, lawyer or trial. He had been interrogated under torture and was convinced that  Guantánamo Bay served solely as a means for collecting information. In this, the British Government is complicit.

There are still 8 UK residents with British families incarcerated  in Guantánamo whom the British government also refuses to protect under international law: Shaker Aamer, Bisher al-Rawi, Ahmed Ben Bacha, Omar Deghayes, Jamil al-Banna, Ahmed Errachiddi, Binyam Mohammed and Abdelnour Sameur. Three of them have been held for more than 3 years. At least one is still believed to be on hunger strike since August 2005, force-fed by medical professionals who have been accused of contravening their professional code of ethics. The British residents have been subjected to torture and brutal treatment prohibited under the UN Convention Against Torture. None have been charged with any offence or any terrorist act. A UN report published on 16 February 2006 behalf of the UN Human Rights Commission, called on the US government “to close down the Guantánamo Bay detention centre and to refrain from any practice amounting to torture or cruel, inhuman or degrading treatment.” The US government has rejected the report.

During Lord Steyn's Attlee Foundation lecture he stated that:  “While our government condones Guantánamo Bay the world is perplexed about our approach to the rule of law... You may ask: how will it help in regard to the continuing outrage at Guantánamo Bay for our government now to condemn it? The answer is that it would at least be a powerful signal to the world that Britain supports the international rule of law” (quoted in The Guardian, 12th April 2006 ).

The rights of the families of the British residents still detained to have their relatives freed from Guantánamo and the right of their legal representatives to have access to US and British courts is at the apex of the defence of our democratic rights today.

It is through the abuses at Guantánamo that the US is seeking to create a new ‘legal' regime. The noxious, illegal culture of the global war against terrorism led by the White House, the Justice Department and the Pentagon, has permeated every nook and cranny of the New Labour government, the Ministry of Defence, the Foreign Office, the Home Office and the intelligence services in spite of the protests of former UK diplomats, military personnel, the Law Lords and almost all the international lawyers in Britain.

We join Moazzam Begg and all those campaigning against the very existence of the camp at Guantánamo Bay in calling for the British government to secure the release of the British residents who are still detained. We call for the closure of this camp and all other illegal detention centres operated by the USA or their allies, before there are any more tragic deaths.

FURTHER INFORMATION ABOUT GUANTANAMO BAY

Click here for information on a 2004 meeting held in support of Moazzam Begg while he was being held in Guantánamo Bay.

To hear audio clips from a meeting on detention without trial at Belmarsh, 'Britain's Guantánamo', click here.

The National Guantánamo Coalition's website features this article about Binyam Mohamed: 'The Last Londoner in Guantánamo Bay.'