Following on from my Charon podcast yesterday, I thought it might help to put my thoughts in writing about last Friday’s judgment. It might be farcical, except that it relates to the cruel treatment and possibly torture of a prisoner. It’s the latest in a series of judgments, of course, and there have been no appeals yet.
As the court said at the time of its ruling not to publish the summary (para. 62 of the judgment of 4 February 2009)
the 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. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the United States Government might carry that threat out and this would seriously prejudice the national security of the United Kingdom.
Bear in mind that the hearing in this matter was held in October 2008 – before the election of Barack Obama. The judgment goes on to say (para. 78)
It was submitted to us by Mr David Rose that the situation had changed significantly following the election of President Obama… We have, however, been informed by counsel for the Foreign Secretary that the position has not changed… The concern of the United States pertains not to disclosure of the treatment of detainees that might be levelled against the administration of President Bush, but to the disclosure of information obtained through intelligence sharing.
Subsequently, the judges became concerned that the Foreign Office had not given them the full picture. In particular, they had not specifically asked the Obama administration in the two weeks between the President’s inauguration and the judgment, whether it maintained the threat to review intelligence sharing. It’s clear that the judges felt the basis on which they’d ruled the first time – that the American threat remained – was wrong. Hence the second bite at the cherry.
And this time, the Court saw the position as having altered significantly. The judgment makes much (para. 79) of a letter from the CIA’s General Jones, which says (the emphasis is the Court’s)
Public disclosure of the information contained in the seven paragraphs withheld from the High Court’s open decision, as well as the documents from which the information was drawn, could likely result in serious damage to U.K. and U.S. national security. If it is determined that your Service is unable to protect information we provide to you even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in future.
This, the judges think, is very different from the position of the Bush administration. I don’t understand this, since their own decision earlier this year was on the basis that, as I’ve already quoted above
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 United States Government might carry that threat out
which seems to me to be the same position. What is more extraordinary is that the judges were shown evidence that Hillary Clinton had told the Foreign Secretary in May that the threat remained (para. 90)
Clinton (who was clearly well aware of the case and the associated issues) said that the US position had not changed, and that the protection of intelligence went beyond party or politics. The US remained opposed to the UK releasing these papers. If it did so it would affect intelligence sharing. This would cause damage to the national security of both the US and UK.
Yet the judges chose in effect to ignore that, extraordinarily preferring the General’s letter as representing more accurately the views of the Obama administration (see para. 88), and saying at para. 95
while we accept on the basis of this evidence of the statement by Secretary of State Clinton that there must be some small risk that intelligence sharing would be reviewed or affected if we were to disclose the redacted paragraphs, we have been led to the conclusion that, on proper analysis, the evidence simply does not sustain the Foreign Secretary’s opinion that there is a serious risk.
To see Hillary Clinton’s comments as exaggerated, unreasonable or both, I can understand. I think they probably are. To say, as the Court does, that her reference to “the papers” calls into question her attitude to the summary, I can also understand (although there again, since the summary does indeed summarise those papers, I’m not sure there’s the gulf of difference that the judges see). But to say that her words don’t represent the views of the US government is I think breathtaking. And so, on the basis of a very close, I think unduly close, analysis of a General’s letter, the Court has stood on its head.
To make matters worse, this latest judgment has itself had to be redacted because of the Foreign Office’s fears it contained material damaging to national security. At this point I’m afraid the whole affair has begun to descend into a spiral – and risks disappearing up itself.
Whether these 25 lines should be published, I don’t know. It would be much better in my view if the American government were to agree to their release, and not doing so, and making sustained (and in my view clearly exaggerated) threats about intelligence sharing, damages their standing and the respect people have for them here. The Foreign Secretary looks ridiculous too.
But I don’t spare the Court from criticism, either. Nothing, in reality, has changed since its original ruling in February: the judges, it seems to me, simply view the American threat differently. But in all the massive detail of their numerous judgments I see increasing evidence of tree-spotting, while at the same time I supect the wood has been lost from view. The result is a Dickensian procession of confusing, self-referential judgments, with no sign of an end. I’m not sure the Court is entirely to blame for that – it will not help if the government cries national security at every turn. But some order has to be imposed on this soon, and some finality.
The sooner this goes to appeal, the better.