The Obama administration may have just failed the first big test of its promises to end unwarranted government secrecy.
According to a decision issued Wednesday by the High Court in Great Britain, the court will not publish its summary of the alleged torture of Guantanamo Bay detainee Binyam Mohamed because the U.S. government threatened to end intelligence cooperation with the British if it did.
Mohamed, a lawful U.K. resident, claims he was seized by U.S. agents in Pakistan and tortured before being “extraordinarily rendered” to Morocco to be tortured some more.
Although the threat was originally made by the Bush administration, the British court’s opinion says that the Obama administration has not changed its insistence that the 7-paragraph summary remain secret.
According to the court: “There was an arguable case disclosed by the documents that cruel, inhuman and degrading treatment had been inflicted on [Binyam Mohamed],” and that such treatment could be prosecuted as a war crime.
In its own view, the British court wrote, “there was every reason to put the paragraphs into the public domain. [...] The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy.”
However, the court chose not to publish the summary of the evidence because the U.K. Foreign Secretary had concluded that doing so would harm British national interests, given the threat from the United States.
“[T]he United States Government’s position is that, if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided,” the court wrote.
Despite the inauguration of President Obama on Jan. 20, the court states, “we have been informed . . . by counsel for the Foreign Secretary that the position has not changed.”
If it’s true that the Obama administration actually considered the previous position and affirmed it, that calls into serious question the sincerity of Obama’s executive orders in which he pledged to end government secrecy and torture.
In response to the decision, the American Civil Liberties Union today called on Secretary of State Hillary Rodham Clinton to “clarify the position of the United States” in the case.
In a case I wrote about early last week, the ACLU has been representing Mohamed, among others, against Jeppesen Dataplan, the Boeing subsidiary that allegedly assisted the CIA in carrying out its extraordinary rendition policy. That case — the Obama administration’s first big secrecy test in a U.S. court — is scheduled for oral argument in a federal court of appeals in California on Monday.
I’ll be following the case closely to see if the Obama administration changes the U.S. government’s previous assertion of “state secrets” in that lawsuit. But its position in this related U.K. case is not a good sign.