The US government was accused today of using a “strategy of delay” to avoid having to disclose evidence that could support a Guantanamo Bay detainee’s torture allegations.
Binyam Mohamed, a British resident suspected of terrorism, is fighting a long, high-profile legal battle in both the American and English courts for access to 42 documents.
Lawyers for the 30-year-old Muslim convert believe the secret papers may contain information backing his claim that he only confessed to terrorist activities after being held incommunicado for two years between 2002-2004 and suffering ill treatment.
Allegations include that at one stage he was sent for interrogation in Morocco, where his penis was cut with a razor.
Dinah Rose QC, appearing for Mohamed, told London’s High Court it was Mohamed’s case that eventually he “said whatever his interrogators wanted to hear”.
Now mentally ill and close to breaking point, he denied American accusations that he was an “unlawful enemy combatant”.
Ms Rose said the 42 documents, arising out of co-operation between the British and American intelligence services in the “war on terror”, were needed urgently to persuade the relevant convening authority that Mohamed should not face trial in America before a US military commission because the evidence against him was tainted by torture.
The US authorities had so far disclosed only seven following an application for habeas corpus in the US courts. said Ms Rose.
The QC told Lord Justice Thomas, sitting with Mr Justice Lloyd Jones, the English courts should intervene to end the delay.
She said: “Torturers do not willingly disgorge evidence of torture. What one has actually seen in this case is every effort made by the US government to do everything they need to do at every stage of the proceedings to make sure the documents are not actually provided.
“Their strategy is delay.”
The UK government argues the documents are covered by public interest immunity and it is for the American courts to decide whether all of them should be disclosed in confidence to Mohamed’s US legal team.
Foreign Secretary David Miliband claimed public interest immunity, arguing that releasing the documents against the will of the Americans would damage the UK’s relationship with the US.
Ms Rose told the court Mohamed, who had been held for almost seven years without trial, was “desperate, fragile and very close to breaking point....The question of urgency remains as great as it has ever been.”
If Mohamed was sent for trial, there was a serious likelihood that he would continue to be detained and become embroiled in years of litigation.
Ms Rose said: “There is real doubt about whether he is mentally able to withstand that process in his situation.”
She argued that, in the face of serious allegations of torture, the balance was against the courts upholding the public interest immunity certificates obtained by the British Foreign Secretary.
She also wants the judges to provide “a public account” of what the documents show happened to Mohamed after his detention in Pakistan.
Mohamed alleges he was held incommunicado in Pakistan in 2002, handed over to the Americans and secretly rendered to Morocco and tortured, before being subsequently flown to Afghanistan and then to Guantanamo Bay in September 2004.
The hearing is expected to last five days.