As the Washington
Post reported yesterday, the US Justice Department has dropped the
key allegation against British resident and Guantánamo prisoner Binyam
Mohamed – that he was involved, with American citizen Jose
Padilla, in a plot to detonate a "dirty bomb" in a US city.
For over three years, Binyam's lawyers at Reprieve,
the London-based legal action charity, have been arguing that the allegations
against Binyam were extracted through the use of torture – in Morocco, where
Binyam was tortured for 18 months, after being rendered by the CIA, and at the
CIA's own "Dark Prison," near Kabul, where he was held for four or
five months from January 2004, before his transfer to the US military prison
at Bagram airbase, and his eventual arrival at Guantánamo in September
As Binyam explained to Reprieve's Director, Clive Stafford Smith, during the
meetings at Guantánamo that first established what had happened to him
after he was seized in Pakistan in April 2002, his torturers in Morocco insisted
– in spite of his protests that he had only recently converted to Islam and
did not speak Arabic – that he knew some of the big names in al-Qaeda:
"Some of the time they said that some big people in al-Qaeda were talking
about me. Some of the time they told me that the US had a story they wanted
from me and it was their job to get it. They talked about Jose Padilla and they
said I was going to testify against him and big people. They named Khalid Sheikh
Mohammed, Abu Zubaydah and Ibn Sheikh al-Libi. I was meant to be working with
these people, giving them ideas like the dirty bomb. It is hard to pin down
the exact story, because what they wanted changed all the time. First in Morocco
it changed, then when I was in the Dark Prison, then in Bagram and again in
Binyam explained that, between the savage beatings and the razor cuts to his
penis, his torturers "would tell me what to say." He added that even
towards the end of his time in Morocco, they were still "training me what
to say," and one of them told him, "We're going to change your brain."
As it happens, one of the confessions that was tortured out of Binyam is so
ludicrous that it was soon dropped, but not before Clive Stafford Smith had
learnt of it and had been able to use it to demonstrate the extent to which
it indicated that all of Binyam's "confessions" were untrustworthy.
As he explained in his book The
Eight O'Clock Ferry to the Windward Side, "[T]he US authorities
insisted that Padilla and Binyam had dinner with various high-up members of
al-Qaeda the night before Padilla was to fly off to America. According to their
theory the dinner party had to have been on the evening of 3 April in Karachi
… Binyam was meant to have dined with Khalid Sheikh Mohammed, Abu Zubaydah,
Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla." What made the scenario
"absurd," as Stafford Smith pointed out, was that "two of the
conspirators were already in US custody at the time – Abu Zubaydah was seized
six days before, on 28 March 2002, and al-Libi had been held since November
Binyam's lawyers have long maintained that the charges against him would not
stand up to independent scrutiny in a courtroom, and this is indeed what has
happened. After June's ruling
by the US Supreme Court – that the prisoners have constitutional habeas corpus
rights (the right to ask a judge why they are being held) – the District Court
in Washington D.C. established
a timeline for the government to submit factual returns stating their reasons
for holding the prisoners.
When Binyam's case came up for habeas review last month, Judge Emmet G. Sullivan
ordered the government to release any exculpatory evidence in its possession
by October 6. The evidence in question – 42 documents provided to the US administration
by the British government – is not the only undisclosed evidence in US hands,
but Judge Sullivan was able to order these particular documents to be released
because their existence had already been confirmed this summer, during an extraordinary
judicial review of Binyam's case in the British High Court.
In the judicial review, Lord Justice Thomas and Mr. Justice Lloyd Jones ruled
that the evidence in the possession of the British government was "not
only necessary but essential for [Binyam's] defense," and explained that
there were three reasons why David Miliband, the British Foreign Secretary,
was "under a duty" to disclose the information "in confidence"
to Binyam's lawyers: firstly, because the Foreign Secretary had not made the
documents available to them (and had, instead, handed them directly to the US
government); secondly, because the US authorities had also refused to provide
them to Binyam's lawyers; and thirdly, because the Foreign Secretary had accepted
that Binyam had "established an arguable case" that, until his transfer
to Guantánamo, "he was subject to cruel, inhuman and degrading treatment
by or on behalf of the United States," and was also "subject to torture
during such detention by or on behalf of the United States."
Despite this ruling, the judges then gave the government the opportunity to
respond by filing a Public Interest Immunity Certificate, which they did, claiming
that disclosing the evidence would cause unprecedented damage to the relationship
between the British and American intelligence services. This part of Binyam's
story has not yet concluded. This week the judges have met again to consider
whether the government's claims trump Binyam's need to have evidence released
that backs up his case that he was rendered and tortured.
But while the British side of the story has not yet reached a conclusion, the
British government's 42 documents have ended up having far more of an impact
in the US, where it was Judge Sullivan's demand for their disclosure that
prompted the Justice Department to drop the main charges against Binyam – the
"dirty bomb plot" and other outrageous claims that he was planning
to blow up apartment buildings and release cyanide gas into US nightclubs. Speaking
to the Washington Post, Clive Stafford Smith said, "It's no coincidence
that this happened when the judge ordered discovery." He proceeded to explain
that the government had only released seven of the 42 documents, which were
all heavily redacted, and added, "It's clear they think that by dropping
the allegations they can avoid having to turn over the documents." He insisted,
however, that Binyam's legal team would pursue the case in federal court until
all the documents are disclosed.
Despite this story's Transatlantic twists and turns, what's most remarkable
about it is the fact that the "dirty bomb plot" allegation has survived
for so long, as it has been clear, almost from the moment that Binyam was seized,
that the plot never even existed. Speaking in June 2002, Paul Wolfowitz, the
deputy to US defense secretary Donald Rumsfeld, admitted that "there
was not an actual plan" to set off a radioactive device in America, that
Padilla had not begun trying to acquire materials, and that intelligence officials
had stated that his research had not gone beyond surfing the internet.
And yet, Padilla was labeled an "enemy combatant," and was held for
three and half years in complete isolation in a military brig on the US mainland,
until the US courts got close to his case. At that point, the "bomb plot"
disappeared like a mirage, all mention of Padilla's three and a half years of
torture was prohibited, and he was dropped into the federal court system to
face extremely vague charges of "material support for terrorism,"
which, nevertheless, led to a conviction and a 17-year sentence
In Binyam's case, it took another three years for the "dirty bomb plot"
to be discarded, but even though the Justice Department has capitulated, there
is, as yet, no sign that the Defense Department is also prepared to drop the
charges. The DoD, rather than the DoJ, oversees the Military Commissions at
Guantánamo (the system of trials for "terror suspects" that
was conceived by Vice President Dick
Cheney and his close advisers in November 2001), and, as I have recently
everything about them suggests that they work in a parallel reality, where exculpatory
evidence is an inconvenient obstacle to their sole aim: securing convictions
at all costs.
It is, of course, hard to believe that the charges against Binyam can survive
the Justice Department's craven capitulation, but, when approached by the Washington
Post, a spokesman for the Office of Military Commissions said only that
Binyam's case was "under review."
In conclusion, then, it is perhaps worth recalling the words of Lt. Col. Darrel
Vandeveld, the self-confessed "conformist" and prosecutor in seven
cases before the Military Commissions (including that of Binyam Mohamed), who
quit his job on September 24, complaining that potentially exculpatory evidence
was not provided to the defense lawyers, and that the Commissions system was
"not served by having someone who may be innocent be convicted of the crime."
Lt. Col. Vandeveld was referring to the Afghan prisoner Mohamed
Jawad, but he could just as well have been referring to Binyam Mohamed,
and I can only hope that his wonderfully lucid explanation of why he was compelled
to leave his job, which he provided in an email exchange with the Los
Angeles Times just a few days ago, will strike at the heart of the Commissions'
corrupt processes. "I don't know how else the creeping rot of the commissions
and the politics that fostered and continued to surround them could be exposed
to the curative powers of the sunlight," he said. "I care not for
myself; our enemies deserve nothing less than what we would expect from them
were the situations reversed. More than anything, I hope we can rediscover some
of our American values."