David Miliband commented on the High Court judgment in the Binyam Mohamed case during a statement to the House of Commons on Monday 19 October, stating that the UK will appeal against the judgment in the 'strongest possible terms.'

Read the statement

On Friday 16 October, the High Court handed down its fifth judgment in the Binyam Mohamed case. We are deeply disappointed by the judgment, which concludes that a summary of US intelligence material, prepared by the Judges, should be put into the public domain against the clear and express wishes of the United States. We will be appealing in the strongest possible terms.

Since we secured the release of the material at issue to Mr Mohamed’s lawyers by the US Government last October, for use in his defence before the US military commission, the only remaining issue for the Court was whether they should order public disclosure of seven summary paragraphs of intelligence material received from the US about his treatment whilst in Pakistan in 2002.

The Court in its fourth judgment, handed down on 4 February, acknowledged my assessment, made after careful consideration of the US position and considered advice from our intelligence agencies and other senior UK officials that making the seven paragraphs public against the wishes of the US would cause harm to our national security.

And on 23 February, we succeeded in ensuring Mr Mohamed’s release from Guantanamo and his return to the UK, following strenuous efforts by the Government over the course of eighteen months. The Court, throughout its judgments has noted the “considerable efforts” made in this regard.

The Court subsequently reopened its fourth judgment on 6 May on the basis that it did not know whether the position of the Obama Administration regarding disclosure was the same as the Bush Administration’s position, on which it had based its judgment.  While there was indeed a new President and a new Administration in the US, my assessment of the risk to UK national security remained the same: that disclosure by a UK Court of a summary of US intelligence material will harm our national security. 

This assessment was again informed by correspondence from the Obama Administration – from both the CIA and the White House – as well as by my own discussions of this matter with Secretary of State Clinton.  In making this assessment I was again carefully advised by our intelligence agencies and other senior UK officials who are familiar with intelligence matters.

The conclusions reached in Friday’s judgment were based on the premise that the principle of control of intelligence is not absolute. However, the principle is at the heart of all intelligence relationships: intelligence material communicated in confidence must be protected and cannot be released without the consent of the owner. However, we only share British intelligence with other countries on the basis that they will not disclose it without our express permission.

The same inviolable principle applies to foreign intelligence shared with us. If this principle is undermined, the sharing of intelligence will most certainly be hindered. And at a time when the UK faces a serious threat from international terrorism, the Government will not take risks with intelligence that is essential to national security and shared with us by many states.

The Court found that there was insufficient evidence to amount to a real risk that the US would reassess its intelligence sharing relationship or reduce its intelligence sharing relationship with the UK because there was no “explicit statement of consequences [of disclosure by the Court] by the Obama Administration”. In my judgment, the comments of the Obama Administration, now made public, from the CIA, the President’s National Security Adviser, and Secretary Clinton, show this not to be the case, and certainly not a risk worth taking.

The seriousness of the Obama Administration’s determination to uphold the principle of control which underpins decades of intelligence sharing between our two countries is there for all to see in the records of successive correspondence from and discussions with senior figures in the Obama Administration.  In the Government’s view, the Court has failed to accord proper weight to these factors or this assessment.  On such a fundamental issue, it is right and proper that we appeal its judgment. 

Hon. Members will be aware that in the course of this case, Mr Mohamed made extremely serious allegations about his mistreatment whilst in detention. We have been completely clear on this issue: the British Government stands firmly against torture and cruel, inhuman and degrading treatment or punishment; we do not condone collude, encourage or solicit it. We take all allegations of wrongdoing very seriously.

Allegations that British officials were mixed up in wrongdoing in this case are now properly being investigated by the police. And Mr Mohamed is also bringing a separate legal claim for damages against the Government. This will be addressed by the courts in due course. 

In this case, however, the fundamental question at issue is not the mistreatment allegations made by Mr Mohamed. It is about the principle underpinning intelligence sharing and the assessment of the risks to the United Kingdom’s national security that would follow from a breach of this principle. Though I have no objection to the material becoming public, and have made this clear throughout, it is for the US to release its own material, not the UK.

I am determined that the vigour with which we fight this case will maintain the confidence of and send a clear message to all our intelligence partners across the world: the United Kingdom will protect the information that you share with us and uphold the principle that it is for you, not us or our courts, to decide if and when to release such material in to the public domain.

Notes for Editors

Read the Foreign Secretary's initial statement on the High Court judgment (Friday 16 October)

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