As the Washington Post reported yesterday, the U.S. 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 U.S. 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 U.S. military prison at Bagram airbase, and his eventual arrival at Guantánamo in September 2004.
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 U.S. 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 Guantánamo Bay.
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 U.S. custody at the time -- Abu Zubaydah was seized six days before, on 28 March 2002, and al-Libi had been held since November 2001."
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 U.S. 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 U.S. administration by the British government -- is not the only undisclosed evidence in U.S. 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] defence," 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 U.S. government); secondly, because the U.S. 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 United States, 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 U.S. 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. 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 U.S. mainland, until the U.S. 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 January.
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 reported in detail, 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."