Binyam Mohamed: finally, an end

I’m sorry it’s taken me so long to comment on the Court of Appeal’s judgment in R(Mohamed) v Foreign Secretary. People usually claim to hate saying they told you so. I love saying it if I’m honest, but only if I really did tell you so, something you may well doubt if you listen again to my podcast discussion with Charon QC about the case at an earlier stage.

I said at that time that I thought the whole case has become something of a farce, since Binyam Mohamed already had disclosure of the material he needed; the question whether one judgment should or should not contain a few paragraphs was a side issue. I criticised the judges for going back on their original ruling that the paragraphs should not be published, on the basis of an unduly close reading of a General’s letter and a wrong assessment that the US position had changed. My guess in my podcast with Charon was that an appeal court might come down on the government’s side.

Well, I was wrong about that. But I think the Court of Appeal judgment is in line with my analysis otherwise.

Lord Neuberger at paragraph 145 agrees with me that the American position as put before the court in its fifth judgment was similar to the position as the court understood it in making its fourth judgment. There was no real change of approach in Washington. Lord Neuberger also agrees (para. 146) that the judges got far too caught up in analysis of a CIA letter:

the court subjected the CIA letter to what, in a very different context, Lord Diplock referred to disapprovingly as “detailed semantic and syntactical analysis”

and at paras. 148-151 he rejects the Divisional Court’s interpretation of Hillary Clinton’s view in May last year as different from that in the CIA letter and (I thought breathtaking) conclusion that it was less representative of the US view.

At paragraph 191, Lord Neuberger makes it clear that, had nothing else changed, he’d have ruled that the Divisional Court was right the first time: the public interest in including the seven paragraphs in the judgment was indeed outweighed by the risk to national security in doing so. The implication is clear, that the judges below were wrong to change their minds.

What changes everything, however, as Lord Neuberger said at para. 199, was the fact that the same information had in the intervening time been publicly disclosed by Judge Kessler in her habeas corpus judgment the Columbia District Court in Farhi Saeed Bin Mohammed v Barack Obama. The last paragraph on page 64 is the key passage.

Lord May reaches the same conclusion. In his view (para. 284)

the issue of the exclusion of the seven subparagraphs has taken on an unsatisfactory life of its own as satellite litigation… which in the present case has taken the parties and the court way beyond any issue in the original litigation, thereby generating huge complexity and expense.

At paragraph 287, he too implicitly criticises the judges below for making too much of the difference between “would” and “could”. At paragraph 290 he suggests his “provisional view” would also be against inclusion of the seven disputed paragraphs. But at paragraph 295 he also reaches the opposite conclusion because of the intervention of the American District Court:

In my judgment, the decision of the US District Court shifts the already fine balance in this case against the exclusion of the seven subparagraphs.

Thus ends a case that represents a fairly unfine hour for the British judiciary: a prolonged self-referential series of judgments about judgments, no longer referring to any real dispute (and which would be entirely lacking in seriousness were it not for the fact of Binyam Mohamed’s torture) resulting in an unjustified and petulant change of judicial mind. And a final conclusion determined not by any proper resolution of the legal position but by the action of an American court. At least in the end the right thing was done: what happened to Binyam Mohamed should always have been disclosed by the American authorities, and in the end it was.

How fitting that this final judgment should have ended with a ludicrous dispute about whether Lord Neuberger should edit his own judgment. I see no great constitutional outrage in Jonathan Sumption’s letter to the judge, though its not finding its way to the other parties was a bad mix-up. What the outcome of that last row is seems to me hardly to matter.