David Miliband – two questions no-one asked him

So, David Miliband’s statement about the Binyam Mohamed case today wasn’t as exciting as I thought. But he has still left too much detail still to be clarified.

Listening to his statement you’d think the information he was so keen to keep secret was a bulging file, stamped “Top Secret, for your eyes only” and containing lots of reports from undercover 007 types operating deep undercover.

At least I can’t put any other interpretation on his frequent use of “intelligence documents” in his statement, which included phrases such as:

Yesterday’s judgment [was about] whether an English court should, in the interests of public debate and understanding, order the disclosure to the general public of sensitive foreign intelligence shared with our own intelligence agencies on the strict understanding that it would not be released.

In fact what the two High Court Judges were considering releasing was in their own words:

Seven very short paragraphs amounting to about 25 lines. (Para 14)

Given the extensive amount of publicity that Binyam’s case has gathered over the years it has to be a strong possibility that at least some of those 25 lines in question contained information that is already in the public domain.

Furthermore the Judges were of the opinion that:

There was nothing in the redacted paragraphs that would identify any agent or any facility or any secret means of intelligence gathering. Nor could anything in the redacted paragraphs possibly be described as “highly sensitive classified US intelligence.” It followed that it was (and remains) our view that the ordinary business of intelligence gathering would not be affected by putting into the public domain the redacted paragraphs. (Para 68)

This is not a view that two experienced judges, who will have heard a huge amount of classified information during this case, would have taken lightly.

Indeed no particular representations seem to have been made that the information was, off itself, of a sensitive nature:

No argument has been made that any of the ordinary considerations relating to the secrecy of intelligence gathering (such as the identity of agents or the location of facilities) would be affected. (Para 71)

It would seem therefore the the whole of the Foreign Secretary’s case not to disclose this information was based on the potential effect on our relationship with the US government. If the information was sensitive, surely that point would have been made to the court?

So the first question not asked today would be, “If this information constituted sensitive foreign intelligence, was it not a dereliction of duty not to instruct your lawyers not to argue that point?”

The second point of confusion in Miliband’s statement is over what the precise nature of the threat by the US government was.

Miliband’s statement to MPs is quite clear:

For the record, the United States authorities did not threaten to “break off” intelligence co-operation with the UK. What the United States said—and it appears in the open, public documents of this case—is that disclosure of the documents by order of our courts would be ‘likely to result in serious damage to US national security and could harm existing intelligence information-sharing…between our two governments’.

It may appear in the documents of the case, but such a phrase doesn’t appear in the judgement. There is a big difference, any lawyer will tell you that all sort of strange claims have appeared in the documents of a case which certainly aren’t true!

What the judgement does state is:

The Foreign Secretary’s certificates… make clear that 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. (Para 62)

And:

The only relevant considerations are that there is clear evidence that supports the Foreign Secretary’s judgement that the threat is real and serious damage to national security may result and that that judgement was made in good faith. (Para 76)

The Foreign Secretary does seem to have provided quite a bit of information to support his claim,

It is evident from the materials with which we have been provided that the assessment of the risk to the intelligence relationship with the United States was made by the Foreign Secretary in good faith and on the basis of evidence including statements made by officials of the United States Government who held office at the highest levels in the period from July to October 2008. Indeed there is evidence for the Foreign Secretary’s further view that the United States Government would perceive making public the redacted passages as “gratuitous”. (Para 75)

That is hardly a surprise. It’s inconceivable that experienced High Court Judges would have reached the conclusion that there was a genuine threat of non-cooperation without evidence of a pretty cogent nature.

David Miliband may not have been misleading Parliament today. But he was getting pretty close.

The doubts about the government’s actions will remain he answers the key question “How, if you believed the US government did not threaten to break off intelligence cooperation were you able place sufficiently persuasive evidence of that claim before a court ?”

The Judgement can be found in full at: http://www.bailii.org/ew/cases/EWHC/Admin/2009/152.html

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