The protection of confidential information is essential to strong, effective security and intelligence cooperation among allies. The decision by a United Kingdom court to release classified information provided by the United States is not helpful, and we deeply regret it.

The United States and the United Kingdom have a long history of close cooperation that relies on mutual respect for the handling of classified information. This court decision creates additional challenges, but our two countries will remain united in our efforts to fight against violent extremist groups.

Marc Ambinder was clearly right to guess that the White House was only bluffing about the Mohamed disclosure limiting U.S.-U.K. intelligence cooperation.

Running through the list of situations that we’ve been reporting on in which the Obama administration continues to conceal evidence of torture — from the efforts of British resident Binyam Mohamed to seek justice for his “extraordinary rendition” and torture; to the administration’s continued efforts to dismiss cases alleging government-sponsored torture and illegal wiretapping by raising the “state secrets” privilege; to President Obama’s continued insistence on hiding photos of brutal detainee abuse — The Times highlights how President Obama, despite his grand promises of openness and accountability in the early days of his administration, has caved to Republicans and some conservative Democrats who want to bury the evidence of criminal and moral wrongdoing by the United States government.

“We do not take seriously the government’s claim that it is trying to protect intelligence or avoid harm to national security,” The Times writes. And it shouldn’t. As we’ve pointed out repeatedly at TWI, the outlines of our government’s abusive and in some cases criminal conduct is already well-known and can hardly endanger us further. Only by unearthing, acknowledging and accounting completely for the past can the new administration finally move beyond it to focus, unencumbered, on making sure it does not happen in the future.

This is a breakthrough for Mohamed, because while he claims that he was tortured while detained in Pakistan and interrogated by U.S. and British agents, he’s never been able to obtain evidence from the U.K. government that he says will prove his allegations. Meanwhile, the British Foreign Secretary had urged the British court not to make Mohamed’s specific torture claims public, citing a risk to relations between the United Kingdom and the United States, suggesting that the U.S. had urged him to keep the charges hidden.

Friday’s ruling, reported by JURIST over the weekend, reversed the previous decisions to redact Mohamed’s allegations, saying that “the public interest in making the paragraphs public is overwhelming” and “the risk to national security judged objectively on the evidence is not a serious one.”  The court’s earlier opinion therefore will be re-issued with the paragraphs restored.

More details on the court’s decision can be found at JURIST, and more on the strange and difficult case of Binyam Mohamed, who was released from Guantanamo and returned to the United Kingdom last February, can be found here and here.

The U.S. government tried to convince Mohamed to sign an agreement upon his release promising not to discuss his treatment by U.S. authorities. He refused.

The state secrets privilege, of course, is what the government invokes when it wants a judge to dismiss a lawsuit that it claims will reveal “state secrets” just by going forward, even if the judge is the only person who gets to see the sensitive secret evidence. The government invoked “state secrets” in the case of Mohamed v. Jeppesen Dataplan, and several other cases involving torture and warrantless wiretapping that the Justice Department wants dismissed. Pending legislation would limit the executive’s ability to use this confidential evidentiary privilege to dismiss outright legal challenges to government conduct. The administration so far has avoided taking a position on the legislation.

As I reported almost two months ago, Holder told the Senate Judiciary Committee on June 17 that he would issue a new policy on when the government will invoke the state secrets privilege to conceal evidence from the public — and even from federal court judges — “in a matter of days.”

Well, it’s August, and still nothing. After Ed asked me the question, I followed up with Dean Boyd, spokesman for the Justice Department’s national security division, asking him if that policy had ever been issued. After all, maybe we’d just missed it.

Boyd’s response:  “Not yet; still in the works.”

In addition, The Guardian has written the British High Court requesting that it disclose the photographs “in the interest of open justice and freedom of expression.” Mohamed’s lawyer, Stafford Smith, expressed discontent with the Obama administration, largely in line with transparency advocates concerned with the torture of detainees: “It is difficult to understand the continuing policy of the Obama administration. Surely the public has the right to know the crimes committed by US personnel against a British resident like Binyam Mohamed.”

As I’ve written before, lawyers representing the ex-Guantanamo detainee Binyam Mohamed have been complaining that the U.S. government is forbidding the release of evidence that the Ethiopian-born U.K. resident was tortured in U.S. custody.In February, Clive Stafford Smith, director of the nonprofit organization Reprieve, which represents many Guantanamo Bay detainees, sent President Obama a letter saying that the Defense Department was not letting Obama see the evidence. Smith suggested that, as the commander-in-chief, Obama may want to change that.

Well, officials from the Department of Defense who make up a “privilege review team,”  which monitors and censors communication between Guantanamo prisoners and their lawyers, didn’t like that at all.  So in March, they filed a report with a federal court in Washington, D.C., calling the Reprieve lawyers’ letter “unprofessional” and charging that they’d violated the court’s protective order, which protects classified evidence. The odd thing about it was the letter to President Obama contained no evidence, and the attached memo discussing the torture was entirely blacked out — illustrating what Smith called the “bizarre reality” of the court’s order, which forbids even the president from seeing the evidence.

So how his this violating a protective order? The Defense Department’s report isn’t clear, but Judge Thomas Hogan has ordered Smith and his colleague Ahmed Ghappour to appear in his court on May 11 and explain why they should not be held in contempt of court — and perhaps jailed for up to six months — for their alleged transgression.

“What is particularly irksome about this is the issue involved,” Smith wrote in an e-mail this morning. “The government is covering up evidence of torture against Binyam Mohamed, while accusing us of violating a rule in (bizarrely) NOT revealing that evidence.” He added: “What this is really all about is official embarrassment at looking bad.”

I don’t have the numbers yet, and many of the agreements are confidential, but at least one, now on file in a federal district court, reveals that Yaser Esam Hamdi — who was captured in Afghanistan in 2001, deemed an “illegal enemy combatant” and sent to Guantanamo Bay, where he was imprisoned for almost three years without charges — signed a promise not to sue the U.S. government as a condition of his release.

Evidently, the government knew it was vulnerable to suit for unlawful indefinite detention and abuse in custody — exactly the claims that some other former detainees have made since then.

“It was certainly a condition that the goverment insisted on,” says Geremy Kamens, an Assistant Federal Public Defender in the Eastern District of Virginia who represented Hamdi at the time.

Hamdi, who was born in Baton Rouge, La. and is therefore a U.S. citizen, insisted he was never a member of the Taliban or fighting the United States, as the U.S. government claimed. Still, to secure his release from prison (he was eventually transferred to the same Navy Brig in South Carolina that held Ali Saleh Kahlah Al-Marri), he signed the following statement:

Except in case of breach of this Agreement by the United States, Hamdi hereby releases, waives, forfeits, relinquishes and forever discharges the United States, its departments, agencies, officers, employees, instrumentalities and agents, in their individual or official capacities, from acts or omissions occurring prior to the official date of this Agreement, and from any and all challenges to the terms and conditions imposed by this Agreement.

Hamdi also agreed to relinquish his U.S. citizenship, be deported to Saudi Arabia, and face a host of travel and other restrictions.

But say Hamdi was tortured, abused, humiliated or otherwise mistreated while in U.S. custody, in violation of U.S. and international law, as many other former Guantanamo detainees claim they were?  Would his promise to not sue hold up in court?

Not necessarily.

As Shayana Kadidal of the Center for Constitutional Rights explains in an e-mail: “A nearly universal principle of contract law is that courts should refuse to enforce agreements made under duress, or that are against public policy (like gag rules). So one could make the argument against enforceability on those grounds.”

Of course, one could say that any plea agreement by a criminal defendant is entered into under duress, and those are virtually impossible to challenge in court. Then again, Hamdi did not plead guilty to anything, so this situation is a little different.

As Cornell University Law Professor Michael Dorf has written, “if Hamdi one day brings a lawsuit, the government will bear the burden of establishing ‘that the agreement is neither involuntary nor the product of an abuse of the criminal process’ ” — the standard set in a 1987 Supreme Court decision.

Although Hamdi has not filed a lawsuit against the United States — at least, not yet — a lawyer could certainly make a strong argument that requiring a former prisoner who was never convicted of anything to renounce his claims against a country that held him indefinitely without charge, and interrogated him under torture (if that’s what happened), is asking a victim to renounce his human rights.

And that, in itself, might well be viewed by a court as “an abuse of the criminal process.”

Dorf, by the way, said he the Hamdi case is similar to a “release-dismissal agreement” — in which the government agrees to drop criminal charges if the person charged will drop his civil suit against the government — and said he thinks that Hamdi’s agreement likely would not hold up in court.

Whether other detainees have been asked to sign similar agreements as a condition of their release isn’t clear, although Kamens said he’s heard that some have. I’ll keep trying to track those down.

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A copy of the 98-page Spanish complaint that was referred to him, translated by Google (via The Raw Story,) is available here.

This is the second report of a U.S. ally’s judicial system bravely going where the U.S. Justice Department has refused to go.

As I reported last week, a U.K. attorney general, confronted with reports that British intelligence agents colluded with U.S. authorities in the torture of Ethiopian-born former Gitmo detainee Binyam Mohamed, announced she would refer the matter to British police to investigate. Allegations regarding British intelligence collusion in the torture of another British resident held at Gitmo are expected to reach the British High Court this week.

In the United States, meanwhile, prosecutors and former Bush officials have consistently maintained that the same memos that Spain is now investigating as possible violations of international law actually shield former U.S. officials from prosecution here.

President Obama and Attorney General Eric Holder have yet to come out clearly one way or another on the matter. And while some Democratic lawmakers have supported a “truth commission,” such as one sponsored by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt), Republicans such as Sen. Arlen Specter (R-Pa.), while slamming that idea in Congress, inadvertently made the strongest case yet for prosecuting former Bush administration lawyers and policymakers. Although the Judiciary Committee has not convened its own investigation of the Justice Department’s possible lawbreaking during the last administration, a review prepared by Department of Justice’s Office of Professional Responsibility that will reportedly criticize former Office of Legal Counsel lawyers John Yoo and Jay Bybee is expected to be released soon.

Even as Obama and Holder say they want to look forward rather than backward when it comes to the treatment of detainees and anti-terror policy, the growing number of foreign prosecutions and domestic reports producing evidence of criminal conduct may eventually force their hand.

Ever since Binyam Mohamed — the Ethiopian-born Guantanamo detainee who claims he was tortured as part of the CIA’s “extraordinary rendition” program (and whom I’ve written about previously here) — was returned to Britain, his case has caused an uproar there because he claims that the British intelligence agents colluded with the United States government in his torture.

Today, Baroness Patricia Scotland QC  — said she would refer the evidence, both classified and not, to the police, to begin an investigation.

“I have expressed to the Commissioner the hope that the investigation can be taken forward as expeditiously as possible given the seriousness and sensitivity of the issues involved,” she said in a statement released today.

Meanwhile, here in the United States, despite repeated calls for the attorney general to launch an investigation into the CIA’s extraordinary rendition practices and the torture of detainees at Abu Ghraib, Bagram and Guantanamo Bay, Attorney General Eric Holder has equivocated (as has President Obama) and no such criminal investigation has begun. (The Senate Select Committee on Intelligence, on the other hand, is investigating the CIA’s practices, as I’ve reported, but not for criminal culpability. And a previous Senate Armed Services Committee investigation, despite damning results that orders for abusive and inhumane conduct came from the highest levels of the Bush administration, has likewise not led to a criminal investigation.)

When Mohamed and other torture victims brought their case to court by suing Jeppesen Dataplan, the private Boeing subsidiary that assisted the CIA perform renditions, the U.S. government moved to have their case dismissed.

As Glenn Greenwald at Salon has noted, nobody in the United Kingdom is making the Obama administration’s argument — that we ought to all look forward rather than backward. And it’s not like the United Kingdom doesn’t have an economic crisis of its own to deal with, too.

So why is the British prosecutor willing to look “backward” to find out whether crimes were committed, while we seem committed only to burying our heads deeper in the sand?

“Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House,” Johnson wrote.

No kidding.

While The Post has mentioned some of these issues in previous stories, it hasn’t given the Obama administration’s surprising position on “state secrets”  nearly the sort of sustained attention that it deserves.  The Obama administration’s use of secrecy privileges to protect the previous administration’s lawbreaking has been going on for months, as I’ve been writing about here, and other legal bloggers, such as Glenn Greenwald at Salon, have been extensively reporting on as well.

Most recently, in the al-Haramain case, in which an Islamic charity sued the government for wiretapping the group and its lawyers without a warrant, the Obama administration told a federal district court that it simply did not have the authority to do what the court ordered (turn over critical documents that would allow the suit to go forward) and hence, it was not going to comply. What’s more, the new, open, free information-loving administration basically threatened to send in the federal marshals to seize from the judge’s files the offending “secret” documents at issue in the case, if he planned to turn them over to al-Haramain’s lawyers. It didn’t matter that the organization’s lawyers had already seen them, and knew exactly what they revealed: that the Bush administration had been secretly wiretapping the Islamic charity and its attorneys, without a warrant, in violation of federal law.

This was the second major Obama Justice Department showdown over the “state secrets” privilege (explained here). The first, which TWI was first to write about, was in the case of Binyam Mohamed and other torture victims suing Jeppesen Dataplan, the Boeing subsidiary that assisted the CIA in transporting the men to be tortured. Represented by the American Civil Liberties Union, the men have pressed their claims against the company in part to avoid the broad range of immunities government officials usually claim — only to be thwarted by the Bush administration’s assertion that the “state secrets” privilege requires its dismissal.  Incredibly – even to the judges, it seemed — the Obama administration has continued to maintain that position.

In response, last month, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Sen. Arlen Specter (Penn.) introduced a bill that would require judges to look at the classified evidence when the government makes the state secrets claim, rather than blindly accept the government’s claims about the sensitivity of the materials.

Now that the mainstream media is finally taking a serious look at this — as I’ve noted before, some in the press seem to have been willfully avoiding some of these troubling Obama administration positions — that legislation might have a chance.